Appeals Panel Find that Claimant who was Injured while Traveling to Start a New Job was an Employee
The appeals panel has reversed the decision and order of a benefit contested case hearing officer and rendered a decision that a claimant was an employee at the time of his rollover motor vehicle accident. At the time of the accident, the claimant was traveling to Indiana to start a new job with the self-insured employer. In the decision, Appeals Panel Decision No. 170585, decided May 8, 2017, the appeals panel concluded that the hearing officer erred in determining that the claimant was not an employee when the accident happened.
The claimant attended a recruitment meeting in Texas with representatives from the self-insured who traveled to Texas for the purpose of recruiting workers willing to travel to Indiana to assist local work crews in de-tasseling seed corn. During the recruitment meeting, the claimant signed a Worker Disclosure & Information Statement. The claimant testified that he was to be paid for his attendance at the recruitment meeting and that he understood he was hired when he signed the disclosure. The disclosure states it is only a disclosure of the terms of potential employment with the self-insured, including the rate of pay, provisions for a housing stipend and an additional $120.00 stipend to be paid to the claimant upon his arrival in Indiana. The disclosure further provides that the claimant was responsible for obtaining his own transportation to and from the state of Texas and that work in Indiana was expected to run from approximately July 10, 2014, to July 24, 2014.
The claimant planned to travel to Indiana together with seven co-workers in a truck owned and operated by one of his coworkers; that the luggage of the workers was transported in a separate vehicle operated by the self-insured’s crew leader; that the trip to Indiana required two full days; and that he paid the owner of the truck in which he rode the sum of $100.00 for transportation to Indiana. The claimant testified that upon arrival in Indiana, prior to beginning work in the fields, he would receive “arrival pay” and a housing stipend. Work in the fields would begin a day or two following arrival of the workers in Indiana.
According to the employer, all pre-employment paperwork for workers recruited in Texas, including state tax forms, federal tax forms, the payroll choice form, the worker disclosure form and the USCIS I-9 Employment Eligibility Verification form was completed in Texas and turned in to the self-insured prior to the workers departing for Indiana. The self-insured uses E-Verify to determine eligibility of its employees; that company policy requires that e-verification be obtained no later than the first day of employment but not before the job offer is accepted by the employee; and e-verification was completed in Texas prior to the claimant and his co-workers leaving for Indiana.
The claimant was injured in a motor vehicle accident after beginning travel from Texas to Indiana when the vehicle in which he was riding sustained a blowout and was involved in a rollover accident near Georgetown, Texas. He argued that he was the employee of the self-insured in the course and scope of his employment at the time of the accident. The self-Insured argued that the claimant and his co-workers would not become employees of the self-insured until they arrived in Indiana, collected their arrival pay and housing stipend and attended a brief safety meeting.
The hearing officer agreed with the self-insured. The appeals panel reversed that determination and rendered a decision that the claimant was an employee of the self-insured at the time of the accident.
Section 401.012(a) defines employee as a person in the service of another under a contract of hire, whether express or implied, or oral or written. As we stated in Appeals Panel Decision (APD) 93443, decided July 19, 1993, Professor L has noted that “the compensation concept of ‘employee’ is narrower than that of the common law concept of ‘servant’ in the respect that most statutes insist upon the existence of an express or implied contract of hire as an essential feature of the employment relation. 1C Larson, Workmen’s Compensation Law, §§ 47.00, 47.10.” We have also noted that whether a contract for hire exists is a mixed question of law and fact. APD 93931, decided November 23, 1993. In that case, we affirmed the finding of the hearing officer that a contract for hire had not been proven even though the claimant put on protective clothing at the plant site and was instructed in the use of the equipment. Fatal to the claim of a contract for hire was the lack of evidence of any payment or promise to pay the claimant for this time.
Under the facts of this case, where the claimant attended a recruitment meeting on May 31, 2014, for which he was to be paid; that he completed all pre-employment paper work on May 31, 2014, and had his employment eligibility verified electronically, which the self-insured’s policy dictates must be completed after a job offer is accepted by the employee but no later than the first day of employment, and given that, as in years past, upon arrival in Indiana and prior to beginning work in the fields, the claimant was to be paid “arrival pay” and a housing stipend from which payroll deductions would be withheld, we hold that the hearing officer’s decision that the self-insured was not the claimant’s employer for purposes of the 1989 Act is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We accordingly reverse the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and render a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act.
Given the appeals panel’s ruling on the claimant’s employment status, the appeals panel also determined that the claimant was injured while in the course and scope of his employment.
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