What Do You Think: Was Driver who Died Delivering Mushrooms 'Employed' by Dispatch Company?


Harrisburg, PA (WorkersCompensation.com) -- A truck driver signed an independent contractor agreement with a dispatch company called Race, Inc. Under the contract, Race agreed to obtain delivery jobs for the driver. But the driver could turn down any loads he did not want.

The driver, in turn, agreed to pay Race a dispatch fee and to lease a tractor trailer from Race. The agreement also specified that the employee “shall always be acting as an independent contractor.” The driver did not have any specified work hours. The company paid him by the load, job, mile, or percentage of the transported load less a dispatch fee. Race, Inc. specified and controlled the loads the driver would pick up, as well as when and where he would pick them up and deliver them.

In June 2018, Kaolin Mushroom Farm, Inc., subcontracted a job to Race to transport a load of mushrooms. That company’s transportation manager believed the driver was an employee of Race. Moreover, Race had a contract with Kaolin which would have prohibited Race from using an independent contractor to transport the load.

While making the delivery, the driver was in a traffic accident and died. His mother filed a fatal claim petition for worker’s compensation benefits. 

A WCJ and board of appeals denied the claim, reasoning that the driver was not an employee of Race. 

A worker (or dependent) seeking worker’s compensation benefits must establish that he was an employee of the company at the time of injury. 

Courts consider many factors in determining whether an employer-employee relationship exists, including: 1) control of the manner in which the work is done; 2) responsibility for result only; 3) terms of agreement between the parties; 4) nature of the work; 5) skill required for performance; 6) whether the worker is engaged in a distinct occupation or business; 7) which party supplies the tools/equipment; 8) whether payment is by time or by the job; 9) whether work is part of the regular business of employer; and 10) the right to terminate employment.

Was the deceased driver an "employee"?

A. Yes. The company controlled when and how he delivered loads.

B. No. The driver controlled most aspects of his employment.

If you picked B, you agreed with the court in Tiwanna v. Jatt Friends, Inc., Nos. 852 C.D. 2021, 853 C.D. 2021 (Pa. Comm’w Ct. 12/1/22), which held that the mother failed to show that her son was an employee of the company.

Although no one factor is dispositive in determining an employee-employer relationship, the court observed, control over the work to be completed and the manner in which it is to be performed are the primary factors. Control exists where the alleged employer possesses:

1. The right to select the employee;

2. The right and power to discharge the employee;

3. The power to direct the manner of performance; and,

4. The power to control the employee.

Here, the court pointed out, the company only controlled what would be delivered, and when and where it would be delivered. The court also relied on the following factors: the driver was responsible for results only; the agreement established an independent contractor relationship; the nature of the work was a skilled truck driver occupation; the driver supplied the tools; and payment was done by the job.

“Contrary to Claimant's assertion, neither Kaolin's contract with Race, nor Kaolin's transportation manager's belief that Decedent was an employee of Race, conclusively establishes that Decedent was an employee of Race,” the court wrote. Instead, they were merely factors to consider.

Holding that the board didn’t err in finding that the driver was not an employee, the court affirmed the appeal board’s decision denying the mother’s claim for benefits.

This feature does not provide legal advice.

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