Workers Compensation - Central Analysis Bureau

Waziry v. All. Express, LLC

Commonwealth Court of Pennsylvania

March 10, 2022, Submitted; April 12, 2022, Filed

No. 859 C.D. 2021

Reporter

2022 Pa. Commw. Unpub. LEXIS 130 *; 2022 WL 1087695

Hashmatullah Waziry, Petitioner v. Alliance Express, LLC and Uninsured Employers’ Guarantee Fund (Workers’ Compensation Appeal Board), Respondents

Notice: An unreported opinion of the Commonwealth Court may be cited and relied upon when it is relevant under the doctrine of law of the case, res judicata or collateral estoppel. Parties may also cite an unreported panel decision of the Commonwealth Court issued after January 15, 2008 for its persuasive value, but not as binding precedent. A single-judge opinion of the Commonwealth Court, even if reported, shall be cited only for its persuasive value, not as a binding precedent.

Core Terms

Claimant, driving, truck, truck driver, regularly, localized, factual findings, trips, substantial evidence, load, workers’ compensation, picked, logs, hire

Judges: [*1] BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE STACY WALLACE, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge.

Opinion by: STACY WALLACE

Opinion

MEMORANDUM OPINION BY JUDGE WALLACE

Hashmatullah Waziry (Claimant) petitions for review of the Workers’ Compensation Appeal Board’s (Board) July 6, 2021 Order that reversed a Workers’ Compensation Judge’s (WCJ) April 27, 2020 Decision to grant Claimant’s Claim Petitions against Alliance Express, LLC (Employer) and the Uninsured Employers’ Guaranty¹ Fund (UEGF). The Board determined that Pennsylvania does not have jurisdiction over Claimant’s Claim Petitions. For the reasons that follow, we reverse the Order of the Board and remand to the Board for consideration of Employer’s and the UEGF’s remaining contentions on appeal.

I. Background

Employer is a shipping company that operates four trucks and employs four truck drivers. Reproduced Record (R.R.) at 49a. Employer’s office and truck yard are in Philadelphia, Pennsylvania. R.R. at 8a. Claimant was born in Afghanistan, where he was an interpreter for the United States Government for five years. Certified Record (C.R.) at 120. Claimant immigrated to the United States and obtained his commercial driver’s [*2] license here. C.R. at 134, 172. In approximately August 2017, Claimant called Employer from his home in Texas and asked if Employer had a truck that was available to be driven. R.R. at 5a, 10a. Employer responded that it did have a truck available and inquired about Claimant’s qualifications for employment. R.R. at 10a. Employer explained to Claimant the requirements of the job and how he would be paid for driving Employer’s truck. R.R. at 47a.

Since Claimant lived in Texas and had no means of getting to Philadelphia, Employer brought a truck to San Antonio, Texas, and picked up Claimant. R.R. at 39a. Employer then rode with Claimant for two weeks to ensure that Claimant knew how to tie down cargo loads and obtain shipping and receiving papers. R.R. at 57a, 66a. During this time, Employer and Claimant drove from Texas to New York, from New York back to Texas, and from Texas to Philadelphia. R.R. at 59a. Claimant equally split the mileage and load compensation with Employer for these trips. R.R. at 71a. At the conclusion of these two weeks, after arriving in Philadelphia, Claimant began driving on his own. Id.

During his nearly four months of employment with Employer, Claimant received [*3] all driving assignments, with delivery deadlines, from Employer via phone calls or text messages that Employer sent from its office in Philadelphia. R.R. at 9a. Employer provided Claimant with the truck, chains, and tarps and paid for all gas and tolls. R.R. at 8a. Employer required Claimant to submit driving logbooks to Employer, which Employer maintained at its Philadelphia office. C.R. at 235-36. Claimant brought the truck to Philadelphia for maintenance, and he also picked up his paychecks in Philadelphia. R.R. at 24a, 30a.

Employer introduced daily driving logs for some limited periods of time² during Claimant’s employment. C.R. at 519-46. The WCJ determined that those driving logs

indicate [Claimant] worked regularly out of [Employer’s] Philadelphia, PA Office. In particular, [Claimant] picked up his truck in Philadelphia, PA on September 5, 2017 and September 6, 2017 and ended his driving day in Philadelphia, PA on September 7, 2017 and September 15, 2017. He started his workday in Philadelphia, PA on September 8, 2017 and September 9, 2017. He picked up a load on Byberry Road, Philadelphia on November 8, 2017, drove to Great Bend, PA and after a delivery in Syracuse, NY, drove [*4] back to Philadelphia. On November 10, 2017, he picked up his truck in Philadelphia.

R.R. at 9a-10a (emphasis added). Although Claimant testified that he went “from east coast to west coast picking up loads and delivering the loads,” R.R. at 39a, he would regularly return to Employer’s Pennsylvania location after each trip.³ See C.R. at 519-46. When Claimant was asked about his contact with Employer’s Pennsylvania location, the following exchange occurred:

Q. And when you completed the task of each assignment, where would you have to take the tractor trailer? Back to the company [Employer]?

A. Yeah, it was whenever we coming [sic] back, we just staying [sic] like in New York. We have their station. We have their main office here in Philadelphia, Pennsylvania.

C.R. at 123-24.

Claimant’s employment with Employer ended on December 20, 2017, when Employer dispatched Claimant to obtain a load and transport it to Oklahoma City, Oklahoma. R.R. at 79a-80a. While Claimant was putting a tarp on top of the load in Dover, Delaware, Claimant fell to the ground and injured his right arm. R.R. at 8a, 40a. Claimant received surgery on his right arm at a hospital in Delaware the following day. C.R. at 137-38. [*5] After the surgery, Employer transported Claimant to Employer’s Philadelphia truck yard, where Claimant spent the night sleeping in his truck. C.R. at 139-40. Claimant then flew to Buffalo, New York, on December 22, 2017, so that he could use his health insurance for medical treatments.⁴ R.R. at 8a; C.R. at 142-43.

Unable to work as a result of the injury, Claimant filed Claim Petitions in Pennsylvania against Employer and the UEGF. R.R. at 3a. The WCJ held hearings on the Claim Petitions and determined that Claimant’s employment was principally localized in Pennsylvania and that his contract of hire was entered in Pennsylvania. R.R. at 9a. Since the injury occurred in the course of employment, the WCJ granted Claimant’s Claim Petitions. R.R. at 12a-14a.

On appeal, the Board determined that Claimant’s employment was not principally localized in Pennsylvania and that his contract of hire was not entered in Pennsylvania. R.R. at 29a. Accordingly, the Board determined that Pennsylvania lacked jurisdiction over Claimant’s Claim Petitions. Id. Due to a lack of jurisdiction over the claims, the Board reversed the WCJ’s Decision and declined to address the additional issues raised by Employer [*6] and the UEGF. Id.

II. Discussion

In a workers’ compensation appeal, we, like the Board, are “limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated.” Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007). Substantial evidence is

such relevant evidence as a reasonable person might accept as adequate to support a conclusion. See Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003); Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.), 721 A.2d 1152 (Pa. Cmwlth. 1998). In performing a substantial evidence analysis, the evidence must be viewed in a light most favorable to the party that prevailed before the WCJ. Waldameer Park, Inc.; Hoffmaster. In a substantial evidence analysis where both parties present evidence, it is immaterial that there is evidence in the record supporting a factual finding contrary to that made by the WCJ; rather, the pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. Waldameer Park, Inc.; Hoffmaster.

Mere speculation or conjecture is insufficient to support a factual finding, but where there exists the ability to draw reasonable and logical inferences from evidence that is presented, including testimony, a conclusion so derived will be sufficient, even if it may not be the only possible conclusion. See Fitzpatrick v. Natter, 599 Pa. 465, 961 A.2d 1229, 1241-42 (Pa. 2008); see also Moore v. Workmen‘s Comp. Appeal Bd., 539 Pa. 333, 652 A.2d 802, 806 (Pa. 1995) (referee did not engage in [*7] speculation where there was relevant supporting evidence).

W. Penn Allegheny Health Sys., Inc. v. Workers’ Comp. Appeal Bd. (Cochenour), 251 A.3d 467, 475 (Pa. Cmwlth. 2021).

The Workers’ Compensation Act (Act)⁵ authorizes Pennsylvania to exercise jurisdiction over a worker’s injuries that occur outside the boundaries of Pennsylvania if, at the time of the injury “[h]is employment is principally localized in [Pennsylvania]” or “[h]e is working under a contract of hire made in [Pennsylvania] in employment not principally localized in any state.” Section 305.2 of the Act, added by the Act of December 5, 1974, P.L. 782, 77 P.S. § 411.2(a)(1)-(2). Where an injury occurs outside the Commonwealth of Pennsylvania, a claimant bears the burden of proving that his employment qualifies for Pennsylvania’s extraterritorial jurisdiction under 77 P.S. § 411.2(a). Williams v. Workers’ Comp. Appeal Bd. (POHL Transp.), 4 A.3d 742, 745 (Pa. Cmwlth. 2010) (citing Atkins v. Workmen‘s Comp. Appeal Bd. (Geo-Con, Inc.), 651 A.2d 694, 698 (Pa. Cmwlth. 1994)).

Since Claimant’s injury occurred in Delaware, we begin by addressing whether Claimant’s employment was principally localized in Pennsylvania. See 77 P.S. § 411.2(a)(1). The WCJ found that Claimant’s employment was principally localized in Pennsylvania pursuant to 77 P.S. § 411.2(d)(4)(i), which states that “[a] person’s employment is principally localized in [Pennsylvania] or another state when . . . his employer has a place of business in this or such other state and he regularly works at or from such place of business . . . .” [*8]

To show that an employee regularly works at or from an employer’s place of business, he must prove that “he worked from the Pennsylvania location as a rule, not as the exception.” Atkins, 651 A.2d at 699 (citing Root v. Workmen’s Comp. Appeal Bd. (U.S. Plywood Corp.), 161 Pa. Commw. 291, 636 A.2d 1263, 1266 (Pa. Cmwlth. 1994). In Root, 636 A.2d 1263, an employee was injured in an automobile accident in New Jersey after attending a sales meeting at the employer’s Philadelphia office. This Court held that the employee did not regularly work at or from employer’s Philadelphia office, as

[i]n this case, [the c]laimant’s sales territory was limited exclusively to southern New Jersey, and she started and ended every work[]day in her home/office in New Jersey. She was required to attend only monthly sales meetings and other sporadic functions at Employer’s Philadelphia office. However, because [the c]laimant was not expected to “regularly” be present in the Philadelphia office, she was provided no workspace. The WCJ correctly found these periodic contacts were not enough to establish that [the c]laimant “regularly worked at or from” [the e]mployer’s Philadelphia office. In order to establish such, a claimant must prove that he or she works from the Pennsylvania location as a rule, not as the exception.

Id. at 1265-66.

In Holland v. Workmen’s Compensation Appeal Board (Pep Boys), 586 A.2d 988, 990-91, 137 Pa. Commw. 22 (Pa. Cmwlth. 1990), a truck driver, who began 190 of his [*9] 195 driving trips from his employer’s location in New Jersey, filed a claim in Pennsylvania. He argued that he made deliveries to the employer’s Pennsylvania locations and “was in Pennsylvania alone 26% of the days he worked and in Pennsylvania and other states an additional 20% of the time.” Id. We held that the truck driver “began virtually every working day” from the New Jersey location, and that “[t]he only constant” for the truck driver was the location in New Jersey. Id. at 991. Accordingly, we concluded that his employment was principally localized in New Jersey. Id.

In Robbins v. Workmen‘s Compensation Appeal Board (Mason-Dixon Line, Inc.), 91 Pa. Commw. 269, 496 A.2d 1349, 1350 (Pa. Cmwlth. 1985), a Tennessee employer hired a Pennsylvania resident truck driver. The truck driver used the employer’s Pennsylvania terminal as his “home office,” regularly received his work assignments there, and “reported there whenever he did not have a load to take elsewhere.” Id. at 1351-52. Under these facts, we determined that the truck driver‘s employment was principally localized in Pennsylvania, as he regularly worked from the employer’s Pennsylvania location. Id. at 1352.

In Hiller v. Workmen‘s Compensation Appeal Board (Deberardinis), 131 Pa. Commw. 189, 569 A.2d 1024, (Pa. Cmwlth. 1990), a truck driver began every one of his driving trips from Pennsylvania. In addition, he “was required to contact [the employer’s] office daily and was required to forward all paper[]work [*10] to [the employer’s] office in . . . Pennsylvania.” Id. at 1027. The employer also approved all rates and mileage fees, dispatched the truck driver, and provided his paychecks. Id. Under these facts, we determined the truck driver regularly worked from the employer’s Pennsylvania location. Id. at 1028.

In this matter, the WCJ’s factual findings generally fit into two categories: first, that Claimant used Employer’s Pennsylvania location as his home base, and second that he regularly began or ended his driving trips there. Regarding the first category, the WCJ noted that Employer provided Claimant with his paychecks at, and sent Claimant driving assignments from, Employer’s Pennsylvania location. R.R. at 9a. Regarding the second category, the WCJ noted the driving logs submitted in this matter showed that Claimant’s routine was to leave from or return to Employer’s Pennsylvania location. R.R at 9a-10a.

Viewed in the light most favorable to Claimant, as our standard of review requires, we conclude that the driving logs submitted in this matter established that Claimant regularly began and ended his driving trips at Employer’s Philadelphia, Pennsylvania, location, which was the only constant location for Claimant. [*11] Although Claimant drove throughout the United States, the driving logs submitted support Claimant’s testimony that he regularly returned to Employer’s Pennsylvania location after completing his driving assignments. In this regard, Claimant is similar to the truck driver in Hiller, who began all of his driving trips at his employer’s Pennsylvania location. Claimant is also similar to the truck driver in Holland, who began nearly all of his driving trips at his employer’s location in New Jersey, which we considered to be the truck driver‘s only constant location. In both Hiller and Holland, we determined the truck drivers’ employment was principally localized at the location where they began their driving trips.

Viewed in the light most favorable to Claimant, we further conclude that the evidence presented in this matter showed that Employer’s Pennsylvania location was Claimant’s home base. Employer provided Claimant with his driving assignments from Employer’s Pennsylvania location. Claimant was required to submit his driving logs at Employer’s Pennsylvania location, and Claimant came there to obtain his paychecks. Employer provided Claimant with the truck and all equipment, and Claimant brought the truck back [*12] to Employer’s Pennsylvania location after he completed driving assignments and when the truck needed maintenance. Thus, Claimant is similar to the truck driver in Robbins, who used his employer’s Pennsylvania location as his home base, and whose employment was determined to be principally localized in Pennsylvania.

The Board relied heavily on this Court’s prior decision in Root to determine that Claimant did not work from Employer’s Pennsylvania location as a rule. Board R.R. at 29a. Although we note that Root did not involve a truck driver and that Claimant had substantially more contact with Employer’s Pennsylvania location than the employee in Root did, the Board’s overriding error was its failure to evaluate whether the WCJ’s findings were supported by substantial evidence. Instead of doing this, the Board improperly reviewed the evidence and independently made factual findings that Claimant’s contacts with Employer’s Pennsylvania location were only periodic in nature. See R.R. at 28a-29a.

Although we agree evidence exists that would support the Board’s conclusion, a reasonable mind would accept the evidence presented in this matter as adequate to show that Claimant used Employer’s location as his [*13] home base and began or ended his driving trips there. Thus, the WCJ’s factual findings are supported by substantial evidence. See W. Penn Allegheny Health Sys., 251 A.3d at 475. In light of the WCJ’s factual findings, which we accept, the WCJ’s legal conclusion that Claimant’s employment was principally localized in Pennsylvania pursuant to Section 305.2(a)(1) of the Act, 77 P.S. § 411.2(a)(1), was free of legal error.

Accordingly, we conclude that Pennsylvania has jurisdiction over the Claimant’s Claim Petitions pursuant to Section 305.2(a)(1) of the Act, 77 P.S. § 411.2(a)(1). Since a claimant only has to prove one ground for Pennsylvania’s exercise of extraterritorial jurisdiction under the Act, we need not address whether Claimant’s contract of hire was made in Pennsylvania.

The Board did not address Employer’s and the UEGF’s additional contentions on appeal, as the Board stopped its analysis after it determined that Pennsylvania lacked jurisdiction over the Claim Petitions. Because we have determined that the Board erred in this regard, we remand to the Board for consideration of Employer’s and the UEGF’s additional contentions on appeal.

III. Conclusion

For the reasons set forth herein, we conclude that the Board erred in making independent factual findings rather than analyzing whether the WCJ’s factual [*14] findings were supported by substantial evidence. Substantial evidence exists to support the WCJ’s factual findings, and, in light of those findings, the WCJ did not commit an error of law. Accordingly, Pennsylvania has jurisdiction over Claimant’s Claim Petitions, and we reverse the Order of the Board.

Since the Board did not address Employer’s or the UEGF’s additional contentions on appeal, we remand to the Board for determination of those additional contentions.

STACY WALLACE, Judge

ORDER

AND NOW, this 12th day of April 2022, the Order of the Workers’ Compensation Appeal Board, dated July 6, 2021, is reversed, and the matter is remanded to the Workers’ Compensation Appeal Board for consideration of Alliance Express, LLC and the Uninsured Employers’ Guaranty Fund’s additional contentions on appeal.

Jurisdiction relinquished.

STACY WALLACE, Judge

End of Document

¹The caption of this matter, as set forth in Petitioner’s Petition for Review, incorrectly spells “Guaranty” as “Guarantee.”

²August 31, 2017 to September 14, 2017 and November 8, 2017 to November 24, 2017. C.R. at 519-46. Employer did not produce driving logs for the remainder of Claimant’s employment. Claimant testified that Employer destroyed his other driving logs, because Employer was requesting Claimant to drive more hours than legally permitted. C.R. at 164-65.

³Claimant kept Employer’s truck at his home in Texas for a week on one occasion, but this was because Employer, knowing that Claimant was obtaining a new apartment in Texas, intentionally arranged for Claimant to take a load to Texas on his way there. C.R. at 243, 394.

⁴After immigrating to the United States, Claimant received Medicare in New York state, which remained effective. C.R. at 142-43.

⁵Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

Cajiao v. Arga Transp., Inc.

Nebraska Court of Appeals

March 1, 2022, Filed

No. A-21-384.

Reporter

30 Neb. App. 700 *; 2022 Neb. App. LEXIS 44 **

OSCAR CAJIAO, APPELLANT, v. ARGA TRANSPORT, INC., EMPLOYER, AND UNITED STATES FIRE INSURANCE CO., WORKERS’ COMPENSATION INSURANCE CARRIER, APPELLEES.

Prior History: [**1] Appeal from the Workers’ Compensation Court: Thomas E. Stine, Judge.

Disposition: AFFIRMED.

Core Terms

independent contractor, lease, truck, delivery, drive, occupation, benefits, lessee, loads, semi-tractor, regulations, driver

Case Summary

Overview

HOLDINGS: [1]-In an appeal of the compensation court’s decision rejecting the claimant’s claim that he was an employee, a truck driver, of the employer, and thus not entitled to any worker’s compensation benefits, the decision was proper because considering all the evidence, the compensation court did not err in determining that claimant was an independent contractor. Although the employer might have exercised control over the result of the work of the claimant, the evidence did not support a finding that it exercised control over the actual operation of the truck or the manner in which claimant completed the delivery. The court also determined that the length of time for which the claimant was engaged tended to show that he was not an employee.

Outcome

Order affirmed.

LexisNexis® Headnotes

Education Law > Administration & Operation > School Property > Acquisitions of Property

School Property, Acquisitions of Property

Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020), an appellate court may modify, reverse, or set aside a compensation court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

Evidence > Inferences & Presumptions > Inferences

Workers’ Compensation & SSDI > … > Judicial Review > Standards of Review > Clearly Erroneous Standard of Review

Evidence > Weight & Sufficiency

Inferences & Presumptions, Inferences

On appellate review, the factual findings made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. In testing the sufficiency of the evidence to support the findings of fact in a workers’ compensation case, an appellate court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably deducible from the evidence.

Business & Corporate Law > … > Agents Distinguished > Independent Contractors, Masters & Servants > Independent Contractors

Labor & Employment Law > Employment Relationships > At Will Employment > Definition of Employees

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

Business & Corporate Law > … > Agents Distinguished > Independent Contractors, Masters & Servants > Masters & Servants

Labor & Employment Law > Employment Relationships > Independent Contractors

Independent Contractors, Masters & Servants, Independent Contractors

A person’s status as an employee or an independent contractor is a question of fact; however, where the facts are not in dispute and where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law.

Business & Corporate Law > Agency Relationships > Establishment > Agency Agreements

Labor & Employment Law > Employment Relationships > Independent Contractors

Business & Corporate Law > … > Establishment > Elements > Application of Agency Law Principles

Business & Corporate Law > Agency Relationships > Types > Employees & Employers

Business & Corporate Law > … > Agents Distinguished > Independent Contractors, Masters & Servants > Masters & Servants

Establishment, Agency Agreements

There is no single test for determining whether one performs services for another as an employee or as an independent contractor; rather, the following factors must be considered: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business.

Labor & Employment Law > Employment Relationships > At Will Employment > Definition of Employees

Labor & Employment Law > Employment Relationships > Independent Contractors

At Will Employment, Definition of Employees

The extent of control is the chief factor distinguishing an employment relationship from that of an independent contractor. In examining the extent of the potential employer’s control over the worker in this context, it is important to distinguish control over the means and methods of the assignment from control over the end product of the work to be performed. An independent contractor is one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the means or methods used. Even the party contracting with an independent contractor may, without changing the status, exercise such control as is necessary to assure performance of the contract in accordance with its terms.

Insurance Law > … > Motor Vehicle Insurance > Vehicle Ownership > Leases & Rental Vehicles

Public Contracts Law > Types of Contracts > Personal & Real Property Leases

Vehicle Ownership, Leases & Rental Vehicles

49 C.F.R. § 376.12 and 49 C.F.R. § 376.22 (2020) require that a lease contain the following provisions: provide the lessee exclusive possession, control, and use of the equipment for the duration of the lease and provide that the lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease; clearly specify the legal obligation of the lessee to maintain insurance coverage for the protection of the public; and provide that control and responsibility for the operation of the equipment shall be that of the lessee from the time possession is taken until possession is returned.

Tax Law > … > Tax Credits & Liabilities > Estimates & Withholding > Definitions

Estimates & Withholding, Definitions

Federal regulations, and compliance therewith, do not determine whether an employer-employee relationship exists. Federally regulated requirement that lessee have exclusive possession, control, and use of the equipment for the duration of the lease is not dispositive of employee-employer relationship. In fact, 49 C.F.R. § 376.12(c)(4) provides that nothing in the provisions required by 49 C.F.R. § 376.12(c)(1) is intended to affect whether a lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

Common Carrier Duties & Liabilities, State & Local Regulation

The exclusive control, possession, and supervision provision is required to be in every lease that an authorized carrier enters into for equipment, including ones in which the driver is also leased, yet 49 C.F.R. § 376.12(c)(4) specifically states such a requirement does not control the determination of the parties’ relationship.

Business & Corporate Law > … > Agents Distinguished > Independent Contractors, Masters & Servants > Independent Contractors

Labor & Employment Law > Employment Relationships > Independent Contractors

Independent Contractors, Masters & Servants, Independent Contractors

Employees are normally compensated by the hour, and independent contractors are compensated by the job.

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Constitutional Law > … > Fundamental Rights > Procedural Due Process > Scope of Protection

Standards of Review, Abuse of Discretion

As a general rule, the compensation court is not bound by the usual common-law or statutory rules of evidence. Subject to the limits of constitutional due process, the admission of evidence is within the discretion of the compensation court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion.

Civil Procedure > Appeals > Standards of Review > Reversible Errors

Workers’ Compensation & SSDI > … > Judicial Review > Standards of Review > Clearly Erroneous Standard of Review

Evidence > Admissibility > Procedural Matters > Rulings on Evidence

Standards of Review, Reversible Errors

In the context of a workers’ compensation case, the Nebraska Supreme Court has recognized that in a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party.

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review

Reviewability of Lower Court Decisions, Preservation for Review

For an appellate court to consider an alleged error, a party must specifically assign and argue it.

Headnotes/Summary

Headnotes

1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020), an appellate court may modify, reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

2. : . On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

3. Workers’ Compensation: Judgments: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact in a workers’ compensation case, an appellate court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably [**2] deducible from the evidence.

4. Employer and Employee: Independent Contractor: Master and Servant. Ordinarily, a person’s status as an employee or an independent contractor is a question of fact; however, where the facts are not in dispute and where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law.

5. Employer and Employee: Independent Contractor. There is no single test for determining whether one performs services for another as an employee or as an independent contractor; rather, the following factors must be considered: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; [**3] (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business.

6. : . The extent of control is the chief factor distinguishing an employment relationship from that of an independent contractor.

7. : . In examining the extent of a potential employer’s control over the worker, it is important to distinguish control over the means and methods of the assignment from control over the end product of the work to be performed.

8. Independent Contractor: Words and Phrases. An independent contractor is one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the means or methods used.

9. Independent Contractor: Contracts. Even the party contracting with an independent contractor may, without changing the status, exercise such control as is necessary to ensure performance of the contract in accordance with its terms.

10. Workers’ Compensation: Rules [**4] of Evidence. As a general rule, the Nebraska Workers’ Compensation Court is not bound by the usual common-law or statutory rules of evidence.

11. Workers’ Compensation: Evidence: Due Process: Appeal and Error. Subject to the limits of constitutional due process, the admission of evidence is within the discretion of the Nebraska Workers’ Compensation Court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion.

12. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party.

13. Appeal and Error. For an appellate court to consider an alleged error, a party must specifically assign and argue it.

Counsel: James E. Harris and Britany S. Shotkoski, of Harris & Associates, P.C., L.L.O., for appellant.

Lindsey E. Mills, of Smith, Mills, Schrock & Blades, P.C., for appellees.

Judges: PIRTLE, Chief Judge, and RIEDMANN and WELCH, Judges.

Opinion by: RIEDMANN

Opinion

[*702] Riedmann, Judge.

INTRODUCTION

Oscar Cajiao appeals the order of the Nebraska Workers’ Compensation Court, which rejected his claim that he was an employee of Arga Transport, Inc. (Arga), determining instead [**5] that he was an independent contractor and therefore not entitled to any workers’ compensation benefits. Finding no error by the compensation court, we affirm.

BACKGROUND

Cajiao was injured in a motor vehicle accident that occurred on November 2, 2017, while he was driving a semi-tractor trailer leased by Arga. Cajiao alleged that he was an employee of Arga and entitled to workers’ compensation benefits for his injuries. Arga claimed that Cajiao was an independent contractor at the time of the accident and therefore not entitled to benefits.

Cajiao filed a petition in the compensation court in October 2019, and trial was held in April 2021. The parties stipulated that the accident occurred on November 2, 2017, in York County, Nebraska, and that Cajiao gave timely notice of his injury to Arga and its insurer. The issue at trial was whether Cajiao was an employee of Arga.

Cajiao’s video deposition was received into evidence at trial. He testified that he previously owned his own semi-tractor and used it in his business as an over-the-road truckdriver. To acquire work, he would search online trucking broker [*703] companies to find loads that were convenient for him to haul. The companies that needed [**6] freight hauled provided the details of the job, including the pickup and delivery locations, the number of miles between locations, and the weight of the load. Once the delivery was complete, Cajiao would send a bill of lading to the company and it would send him payment.

Cajiao sold his truck in approximately 2010 but continued working as a truckdriver. He continued to use the same search and application process to find loads to haul, and the companies would provide a truck for him to use to complete their delivery. After he finished hauling a load, he, again, would submit a bill of lading to the company and await payment. When the companies provided a truck for him to drive, the truck displayed the name of the company on it, because, as he explained, “[t]hat’s the law.”

Cajiao explained that while he drove for one company, he could not drive for another company, but that he could, and did, move back and forth among companies at any time. He worked for many companies in the 15 years prior to the accident, including Arga. In the 6 months prior to the accident, however, he was driving loads for only Arga. He was paid by the mile for Arga, and if he did not drive any miles, he did not [**7] get paid. He did not receive any other compensation or benefits from Arga, except a yearend bonus that was entirely “up to them.”

The compensation court entered a written order after trial. It recognized that Cajiao sustained injuries in an accident on November 2, 2017, while driving a semi-tractor trailer leased by Arga and that the issue before it was whether Cajiao was an employee of Arga. After applying the applicable law to its factual findings, the court determined that Cajiao was an independent contractor and dismissed his petition. Cajiao timely appeals.

ASSIGNMENTS OF ERROR

Cajiao assigns, summarized and consolidated, that the compensation court erred in (1) finding him to be an independent [*704] contractor and failing to award workers’ compensation benefits, (2) admitting affidavits of witnesses over his objection, and (3) failing to issue a reasoned decision under Workers’ Comp. Ct. R. of Proc. 11 (2021).

STANDARD OF REVIEW

[1] is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020).

[2,3] On appellate review, the factual findings made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id. In testing the sufficiency of the evidence to support the findings of fact in a workers’ compensation case, an appellate court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably deducible from the evidence. Id.

ANALYSIS

Cajiao asserts that the compensation court erred in determining that he was an independent contractor of Arga rather than its employee. We disagree.

[4] Aboytes-Mosqueda v. LFA Inc., supra.

[*705] [5] There is no single test for determining whether one performs services for another as an employee or as an independent contractor; rather, the following factors must be considered: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business. Id.

[6-9] the extent of the potential employer’s control over the worker in this context, it is important to distinguish control over the means and methods of the assignment from control over the end product of the work to be performed. Id. An independent contractor is one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the means or methods used. Id. Even the party contracting with an independent contractor may, without changing the status, exercise such control as is necessary to assure performance of the contract in accordance with its terms. Id.

In arguing that Arga exerted control over him, Cajiao relies heavily upon the fact that he had to abide by federal regulations related to trucking and interstate commerce. As [*706] the compensation court found, however, Cajiao would have been required to follow all state and federal laws whether he was an employee or an independent contractor. The Nebraska Supreme Court has also recognized this fact, observing that compliance with then-existing Interstate Commerce Commission regulations would be required whether [**11] or not the plaintiff’s status was that of employee or independent contractor. See Stephens v. Celeryvale Transport, Inc., 205 Neb. 12, 286 N.W.2d 420 (1979).

Cajiao also asserts that because the lease agreement between Arga and its lessor provided that Arga shall have exclusive possession, control, and use of the equipment and shall assume responsibility for the operation of the equipment, we must find that he was an employee of Arga. He also correctly recognizes that 49 C.F.R. § 376.12(c)(1) (2017), part of the Federal Motor Carrier Safety Regulations, mandates this language. The Supreme Court has likewise recognized that § 376.12 and 49 C.F.R. § 376.22 (2020) require that a lease contain the following provisions: provide the lessee exclusive possession, control, and use of the equipment for the duration of the lease and provide that the lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease; clearly specify the legal obligation of the lessee to maintain insurance coverage for the protection of the public; and provide that control and responsibility for the operation of the equipment shall be that of the lessee from the time possession is taken until possession is returned. See Sparks v. M&D Trucking, supra.

The exclusive control, possession, and supervision provision is required to be in every lease that an authorized carrier enters into for equipment, including ones in which the driver is also leased, yet § 376.12(c)(4) specifically states such a requirement does not control the determination of the parties’ relationship.

The pertinent question, therefore, is the degree of control Arga exercised over the method and manner of performing the work. See Omaha World-Herald v. Dernier, 253 Neb. 215, 570 N.W.2d 508 (1997) (degree of control which plaintiff [**13] exercised over method and manner of performing work was greater than that exercised by defendant). In affirming the trial court’s determination that the plaintiff in Omaha World-Herald v. Dernier, supra, was an independent contractor distributing newspapers, the Supreme Court observed that the defendant exercised no control over the plaintiff’s actual operation of the vehicle which he used to transport newspapers or the route he traveled in servicing his territory.

The Supreme Court relied on similar facts in Stephens v. Celeryvale Transport, Inc., 205 Neb. 12, 286 N.W.2d 420 (1979), to reach its conclusion that the plaintiff truckdriver was an independent contractor. It noted that the defendant exercised no control over the actual operation of the truck, nor precise routes to be traveled, and that in fact, at the time the accident occurred, the plaintiff was operating on a route that he selected.

Similarly, as the compensation court determined here, although Arga may have exercised control over the result of the work, the evidence did not support a finding that it [*708] exercised control over the actual operation of the truck or the manner in which Cajiao completed the delivery. Arga scheduled the pickup and dropoff locations as well as the delivery time; otherwise, Cajiao had the ability to accept [**14] the loads he wanted, take days off as he wanted, and select the route to travel. The evidence did not suggest that Arga controlled the actual operation of the truck Cajiao used to complete the delivery, only that it mandated the delivery location and time. Thus, the evidence indicates that Arga had control over the result of the work but not as to the means or methods used.

Other factors also support a finding that Cajiao was an independent contractor rather than an employee of Arga. Cajiao was engaged in a distinct occupation or business. See Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (1997) (finding truck-driver was engaged in distinct occupation).

A commercial driver’s license is required to perform the work that Cajiao did, and he worked as a semi-tractor driver for at least 15 years prior to the accident. Thus, the compensation court concluded that it took specialized skill to drive a semi-tractor, a factual finding that is not clearly wrong and supports a finding that Cajiao was an independent contractor.

The court also determined that the length of time for which Cajiao was engaged tended to show that he was not an employee. It recognized that Cajiao had driven for various companies over the years and that he tended to move back [**15] and forth among them as he saw fit. He was able to discontinue his work for one company at any time in order to perform work for another company. Prior to the accident, he had worked exclusively for Arga for just 6 months. This factor, therefore, favors a finding that he was an independent contractor.

Furthermore, Cajiao was paid via “Form 1099-MISC” instead of a W-2 wage and tax statement, did not receive any other compensation or benefits from Arga other than a discretionary bonus, and was paid per mile rather than a set salary. He did not get paid if he did not work. compensated by the job. See Stephens v. Celeryvale Transport, Inc., supra.

Considering all of the above, we conclude that the compensation court did not err in determining that Cajiao was an independent contractor rather than an employee of Arga.

Affidavits.

Cajiao assigns that the compensation court abused its discretion in admitting certain affidavits into evidence over his objection. At trial, Arga offered into evidence affidavits of two of its managers. Cajiao objected on the grounds of foundation, hearsay, relevance, undue prejudice, and speculation. The court overruled the objections. [**16] In its final order, however, the compensation court found the testimony contained in the affidavits to be “underwhelming and unpersuasive.” It therefore rejected the testimonies in their entirety and did not rely on them to reach its decision.

[10,11] As a general rule, the compensation court is not bound by the usual common-law or statutory rules of evidence. Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829 N.W.2d 113 (2013). Subject to the limits of constitutional due process, the admission of evidence is within the discretion of the compensation court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion. Id.

[12] In the context of a workers’ compensation case, the Supreme Court has recognized that in a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. See Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016). Thus, because the compensation court rejected the evidence included in the affidavits and did not rely on it to reach its decision, we need not decide the issue of the admissibility of these exhibits, because any admission would, on these facts, have been harmless. See Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018).

[*710] Reasoned Decision.

[13] In his final assigned error, Cajiao assigns that the compensation [**17] court erred in failing to provide a reasoned decision under rule 11 of the compensation court rules. He did not argue this error in his brief, however. For an appellate court to consider an alleged error, a party must specifically assign and argue it. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015). Because he did not do so, we do not address this issue.

CONCLUSION

The compensation court did not err in determining that Cajiao was an independent contractor rather than an employee of Arga. We do not address whether the court erred in its evi-dentiary ruling or if it failed to issue a reasoned decision under rule 11. We therefore affirm the court’s order.

Affirmed.

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