Reform after reform, legislative session after legislative session, trial after trial, the workers’ compensation community has the same issue come up over and over again: employee versus independent contractor. And, to date, the controlling case on this matter is Borello, in which the California Supreme Court set out several factors to consider in determining whether the injured worker was an employee or an independent contractor.

Recently, the Court of Appeal denied review of the Workers' Compensation Appeals Board's confirmation that a deceased truck driver was an employee, rather than an independent contractor, in the claim for death benefits brought by his widow.

The case is that of Schnore v. Progress Rail Services. Therein, the applicant’s late husband suffered a fatal cardiac arrhythmia while driving the defendant’s truck. Defendant claimed that the deceased was an independent contractor rather than an employee, so no liability was to be had.

By contrast, applicant claimed her husband was an employee and was entitled to workers’ compensation benefits. At trial, the workers' compensation judge found the deceased to have been an employee, noting in particular that because defendant set the points at which the drivers pick up and drop off the freight, there is sufficient control to suggest employment. 

The WCJ also weighed the fact that the trailer pulled by the truck driven by the deceased was specialized for the cargo (wheels), which suggested specialization of instrumentalities favoring employment.

The WCAB and the appellate court both declined to disturb the WCJ’s ruling.

Just a thought about this: It seems to be getting harder and harder to prove independent contractor status. The longer the relationship, the greater the extent of interaction between the parties, the more likely the WCAB will be to find the relationship one of employment rather than independent contractor status.

For that reason, parties should be prepared for the possibility that the independent contractor defense will fail. Although this may be a valid reason to deny the claim initially, a thorough investigation should be made, and every effort should be extended, to defend and mitigate the claim itself.

In this case, it appears the medical-legal process found industrial causation for the worker’s death. Accordingly, the independent contractor defense is a bit of a longshot in California.

On the bright side, there’s always the possibility of settlement.

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.