Whitt & Del Bueno, Attorneys at Law

Leaders in defending workers' compensation claims.


Independent Thinking

By Mike Del Bueno

An employee that is injured on the job may be entitled to workers’ compensation benefits in Virginia. However, an independent contractor injured on the job is not entitled to workers’ compensation benefits in Virginia. How do you know if someone is an employee or an independent contractor? Our firm recently handled a case that provides illustration on this issue.

In Mitchell v.Tumolo Custom Millworks, et al, the injured individual alleged that he was an employee. Our firm successfully defended the matter on the ground that he was not an employee, but rather, an independent contractor and, thus, not entitled to workers’ compensation benefits for his injuries.

There were a number of factors that the Commission used to reach the conclusion that the injured individual was an independent contractor. For example, he had listed himself as self-employed on his tax returns for years, including for the year that the work accident occurred. Every person on the job where he was injured was family – he had two brothers, his son, and his nephew that worked with him at the time of his accident. Additionally, it was the injured individual who actually brought on one of his brothers, his son, and his nephew onto the job in question. He provided his tools for the job and got himself to and from work. Furthermore, the injured individual and his brother determined the amount that his son and his nephew would be paid for their work.

All of the above facts were important because the power of control is the most significant factor in determining whether a person is an employee. That power of control is shown by the means and methods chosen to accomplish the work task. The measure of compensation, who supplies the tools, and the determination of work hours are examples of additional factors to be considered on the issue of employee/independent contractor.

If you have a situation where you believe that someone is an independent contractor as opposed to an employee, analyze just who has the power of control in regard to the work and how that control is exercised. The more power of control the injured individual has, the better the chance that he is an independent contractor; the less power of control he had, the better the chance he is an employee. We are happy to help you try to address any independent contractor/employee issue you may be dealing with.