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

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.

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.

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]

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