You Be the Judge

You Be The Judge: Is an Injured Volunteer Eligible for Workers’ Comp?

The court disagrees when a volunteer driver argues that her weekly mileage reimbursement constitutes income and should make her eligible for workers' comp.
By: | June 29, 2018 • 2 min read

A driver for the Chittenden County Transportation Authority  in Burlington, Vt. (now known as Green Mountain Transit) was involved in an accident while driving a CCTA rider to an appointment. The driver sustained significant injuries, including a broken neck, a fractured spine and broken ribs. She filed a workers’ compensation claim.

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CCTA asserted the driver was not an employee for purposes of workers’ compensation. The workers’ compensation commissioner agreed and found the driver was ineligible for benefits. The driver appealed.

Background: The CCTA provided a variety of public transportation services within its operating region. It also ran an auxilliary program that provided transportation to medical, social services, and other appointments for eligible riders living outside its regular bus routes.

The program relied on volunteer drivers to use their personal vehicles to transport riders. Volunteer drivers were subject to certain restrictions and need to complete an application, including a background check and a vehicle inspection. They were reimbursed for mileage. CCTA’s volunteer manual states that an employment contract did not exist between the CCTA and its volunteer drivers.

The injured CCTA driver received an average of $265 per week from CCTA in mileage reimbursement.

You Be The Judge: Did the commissioner properly determine that the driver was not an employee?

  • A. No. The volunteer intended to create an employment relationship.
  • B. Yes. The volunteer did not receive wages from CCTA when she was paid reimbursement for mileage.
  • C. No. CCTA had the right to control the driver.

How the Court Ruled

A is incorrect. The court found that a party’s intent to enter an employment relationship does not control whether an employment relationship exists for the purposes of workers’ compensation. Therefore, the driver’s intent regarding the payments she received from CCTA was not relevant to the determination of whether she was an employee.

C is incorrect. The court explained that the right to control test was not used to distinguish between an employee and a volunteer. The test is used in cases where it was undisputed that the worker received wages whether as an independent contractor or employee.

B is correct. In Perrault v. Chittenden County Transportation Authority, No. 17-112 (Vt. 05/25/18), the Vermont Supreme Court held that the driver was not an employee entitled to workers’ compensation benefits because she did not receive wages.

The court found that employment under the first prong of the statutory definition requires wages as they are defined for workers’ compensation. Wages do not include any sum paid by the employer to cover special expenses.

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Here, the court found that the driver did not receive anything from CCTA that could be interpreted as wages.

CCTA’s regular payments to the driver were based on the number of miles she drove and calculated according to federally established mileage rates, which the federal government set according to the expected depreciation amount associated with each mile driven.

Those payments were reimbursement rather than wages. As the driver did not receive wages, she could not be considered an employee of CCTA. &

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

2018 Risk All Stars

Stop Mitigating Risk. Start Conquering It Like These 2018 Risk All Stars

The concept of risk mastery and ownership, as displayed by the 2018 Risk All Stars, includes not simply seeking to control outcomes but taking full responsibility for them.
By: | September 14, 2018 • 3 min read

People talk a lot about how risk managers can get a seat at the table. The discussion implies that the risk manager is an outsider, striving to get the ear or the attention of an insider, the CEO or CFO.

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But there are risk managers who go about things in a different way. And the 2018 Risk All Stars are prime examples of that.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Goodyear’s Craig Melnick had only been with the global tire maker a few months when Hurricane Harvey dumped a record amount of rainfall on Houston.

Brilliant communication between Melnick and his new teammates gave him timely and valuable updates on the condition of manufacturing locations. Melnick remained in Akron, mastering the situation by moving inventory out of the storm’s path and making sure remediation crews were lined up ahead of time to give Goodyear its best leg up once the storm passed and the flood waters receded.

Goodyear’s resiliency in the face of the storm gave it credibility when it went to the insurance markets later that year for renewals. And here is where we hear a key phrase, produced by Kevin Garvey, one of Goodyear’s brokers at Aon.

“The markets always appreciate a risk manager who demonstrates ownership,” Garvey said, in what may be something of an understatement.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Dianne Howard, a 2018 Risk All Star and the director of benefits and risk management for the Palm Beach County School District, achieved ownership of $50 million in property storm exposures for the district.

With FEMA saying it wouldn’t pay again for district storm losses it had already paid for, Howard went to the London markets and was successful in getting coverage. She also hammered out a deal in London that would partially reimburse the district if it suffered a mass shooting and needed to demolish a building, like what happened at Sandy Hook in Connecticut.

2018 Risk All Star Jim Cunningham was well-versed enough to know what traditional risk management theories would say when hospitality workers were suffering too many kitchen cuts. “Put a cut-prevention plan in place,” is the traditional wisdom.

But Cunningham, the vice president of risk management for the gaming company Pinnacle Entertainment, wasn’t satisfied with what looked to him like a Band-Aid approach.

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Instead, he used predictive analytics, depending on his own team to assemble company-specific data, to determine which safety measures should be used company wide. The result? Claims frequency at the company dropped 60 percent in the first year of his program.

Alumine Bellone, a 2018 Risk All Star and the vice president of risk management for Ardent Health Services, faced an overwhelming task: Create a uniform risk management program when her hospital group grew from 14 hospitals in three states to 31 hospitals in seven.

Bellone owned the situation by visiting each facility right before the acquisition and again right after, to make sure each caregiving population was ready to integrate into a standardized risk management system.

After consolidating insurance policies, Bellone achieved $893,000 in synergies.

In each of these cases, and in more on the following pages, we see examples of risk managers who weren’t just knocking on the door; they were owning the room. &

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Risk All Stars stand out from their peers by overcoming challenges through exceptional problem solving, creativity, clarity of vision and passion.

See the complete list of 2018 Risk All Stars.

Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]