Added: Yusuke Hennigan - Date: 22.02.2022 01:32 - Views: 40541 - Clicks: 548
Claimant, Bridgett Whitlow, appeals a judgment of an office of workers' compensation judge dismissing her suit for benefits. Finding that she was an independent contractor and that she did not spend a substantial part of her work time in manual labor in carrying out the terms of her contract, the workers' compensation judge dismissed Bridgett Whitlow's claim against The Shreveport Times. We affirm the judgment of the workers' compensation judge WCJ. Her delivery area was in rural Sabine Parish.
Whitlow alleges that on May 2,while delivering newspapers, she was dragged from her vehicle and sexually assaulted by two unknown males. Whitlow sought workers' compensation benefits for the alleged injuries she received during the alleged attack.
The Times denied any liability for compensation benefits asserting two defenses. First, The Times maintains that Ms. Whitlow was not its employee, but rather, was an independent contractor. Its second alternative defense was that the incident which allegedly gave rise to Ms. Whitlow's injuries never happened. Whitlow was actually the victim of a rape. For the following reasons, we affirm the judgment on the employer-employee issue and pretermit the discussion of any other issues raised as being moot. Concerning her status, Ms. Whitlow ass two errors. First, she maintains that the WCJ erred in finding that she was an independent contractor.
Second, she ass error to the failure by the WCJ to find that, even if she was an independent contractor, she spent a substantial part of her work time in manual labor and was for that reason entitled to benefits. If we were to find in her favor on either of the two appealed issues, she also asks that we determine on the record before us whether she suffered a sexual assault.
A person rendering service for another in any trades, businesses, or occupations covered by this Chapter is pd to be an employee under this Chapter. Whitlow was rendering service to The Times in its trade, business or occupation on May 2, l, and is therefore pd to have been an employee. As the Claimant seeking benefits, she relied on that presumption. It thus became the newspaper's burden of proof to overcome the presumption. Estate of Harris v. Ledet, La. In the present case the WCJ found that Ms. Whitlow was performing services for the newspaper but that she was doing so as an independent contractor.
The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Guillory v. Overland Exp. Findings of fact by a trial court may not be set aside in the absence of manifest error or unless they are clearly wrong.
Rosell v. ESCO, So. In Fontenot v. Richard Trucking,pp. Stovall v. Shell Oil Co. Several conditions must be met for there to be a principal and independent contractor relationship:. The work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it. The contract calls for specific piecework as a unit to be done according to the independent contractor's own methods without being subject to the control and direction of the principal, except as to the result of the services to be rendered.
Specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach. More recently, in Hillman v. Comm-Care, Inc. Johnson v. Alexander, So. In characterizing Hillman as Comm Care's employee, the lower courts based their analysis on a jurisprudentially crafted test for determining whether an employer-employee relationship exists that can be traced back to Alexander v. In Alexander, the court turned for guidance to the general statement of law then set forth in 35 Am. The essence of the [employer-employee] relationship is the right to control.
The four primary evidentiary factors considered in deciding the above are. The appellate courts in subsequent cases, including the sitter cases noted above, have utilized this test. In so doing, the courts have reasoned that none of the factors is controlling, that the totality of the circumstances must be considered, and that the burden of proof is on the party seeking to establish an employer-employee relationship. Although the employer-employee relationship is not statutorily defined in the Workers' Compensation Act, an independent contractor is defined.
Louisiana Revised Statutes 6 re in part as follows:. Applying the four factors in Hillman to the case sub judice we find that Ms. Whitlow contracted with The Times to purchase newspapers at a wholesale rate for resale and delivery. The contract specifically deated Ms. Whitlow as an independent contractor. Whitlow was not paid wages, but rather derived her profit from the difference between the newspaper's wholesale and retail prices.
The Times withheld neither social security nor income tax. The contract specifically provided that Ms. If Ms. Whitlow needed a substitute, she was responsible for providing one at her own expense and the substitute was to be under her exclusive control and direction. The original contract was for a term of one year and provided for automatic renewal for successive one year periods.
The contract also provided for the termination, by either party, under certain conditions. Contractor [Ms. Whitlow] shall indemnify, defend and hold Company harmless from and against any and all claims, damages, losses and expenses, including, but not limited to, attorneys' fees, that may hereafter be asserted against Company by Contractor or by anyone performing Contractor's obligations under this Agreement or by any other person, for injury or death, damages to property or for any other cause, arising out of any acts or omissions in performing Contractor's obligations under this Agreement, including, but not limited to, use of a motor vehicle.
All rights of indemnification and to be held harmless under this Agreement shall survive the termination of this Agreement for any act or omission occurring prior to or on the date of termination. Clearly, this is not the type of contract that would be executed between and employer and its employee.
Finally, Appellant argues that, if for no other reason, she should be entitled to compensation benefits because she spent a substantial portion of her time in manual labor to fulfill her duties under the contract.
See La. Newport Industries, 86 So. As the WCJ pointed out in reasons for judgment, Ms. Whitlow admitted that she did a ificant amount of driving to deliver the newspapers to her customers. However, we must rely on our finding in Guillory v. Overland Express Co. To fall within the manual labor exception, however, as provided for in La.
We must, therefore, look to the other tasks the plaintiff performed in accomplishing his job. Under the terms of her contract, Ms. Whitlow failed to prove she spent a substantial part of her work time engaged in manual labor. In sum, the relationship between a newspaper and its delivery personnel has been the subject of a substantial amount of litigation over the last fifty years. Every appellate court which has considered the issue, including this one, has ruled that the relationship between a newspaper and its delivery persons is not an employer-employee relationship but rather, the courts have uniformly found newspaper delivery persons to be independent contractors.
The facts in this case do not differ greatly from those cases and certainly do not warrant a different result. See Monnerjahn v. Times-Picayune Pub. Houma Newspapers, Inc. Times-Picayune Publishing Corp. Orange Leader Newspaper, Inc. The workers' compensation judge gave six s of reasons for judgment.
Having reviewed the record, we find we agree with his conclusion and find the law and facts support his decision. The Claimant argues that, because she is claiming to be an employee, her status should be analyzed in that context, drawing on the rule of liberal construction required by the Workers' Compensation Act. From this she argues that the issue of status in a tort context as reflected by the above cases is not an authoritative reference. However, we regard the above decisions as carrying considerable persuasive authority, as the doctrine of jurisprudence constante requires us to do.
Mobil Oil Corp. While Appellant's position is well argued in brief, we feel bound by the preceding fifty years of jurisprudence and leave it up to our supreme court to determine if this seemingly well settled principle is in error.
According, for the reasons set forth above, the judgment of the workers' compensation judge is affirmed. Having affirmed on the issue of Claimant's employment status, we pretermit the discussion of all other issues. Costs of this appeal are assessed against Appellant, Bridgett Whitlow. The majority departs from the time-honored rule of liberal construction of workers' compensation provisions. When one examines the four factors listed in Hillman and scrutinizes the criteria for independent contractor status in the liberal manner in which we must construe workers' compensation laws, the conclusion militates in favor of awarding employee status to Ms.
Indisputably, the newspaper selected and engaged Ms. While she was not paid wages in the sense of an hourly rate nor were deductions made from her earnings, The Times was responsible for paying her whatever she earned according to a formula set out in the contractual agreement. The Times under paragraph nine of the agreement had the power to dismiss her in the event of a material breach of the contract or the commission of a wrongful act.
It also had the power to dismiss her without liability by giving thirty days written notice. The Times established the times of delivery and had the right to deate the place and time for pick up of the newspaper. Although Ms. Whitlow to the newspaper. As Hillman explained, the essence of an employer-employee relationship is the right to control the method and means by which an individual performs the work tasks. Whitlow performed the work of delivering the newspapers. The primary criterion in an independent contractor status is control over the and not the means by which a result is accomplished.
The Times exerted more than control simply over the. The Times under the contractual provisions of the Home Delivery Wholesale Agreement also controlled the means to accomplish the. While there was a valid contract between the parties, Ms.Shreveport times classifieds jobs
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