An injured employee seeking benefits under the Workers Compensation Act has the burden of proving that he was an employee at the time of his work accident. Independent contractors and subcontractors are not considered employees. As such, their accidents and injuries are not covered under workers comp in Virginia.


This article examines the Commission’s test to determine whether an injured worker was an employee or independent contractor. If you have a question about your claim, call or e-mail workers compensation attorney Virginia¬†Corey Pollard for a free consultation.



How Does the Virginia Workers Compensation Act Define Employers and Employees?


Section 65.2-101 of the Virginia Workers Compensation Act defines an “employer” as “any person, the Commonwealth or any political subdivision thereof and any individual firm, association or corporation, or the receiver or trustee of the same, or the legal representative of a deceased employer, using the service of another for pay.” If the employer carriers insurance, its insurer is considered an employer also.


The same code section defines an employee as, “Every person, including aliens and minors, in the service of another under any contract of hire or apprenticeship, written or implied, whether lawfully or unlawfully employed, except (i) one whose employment is not in the usual course of the trade, business, occupation or profession of the employer …” The statute then goes on to state who is and who is not an employee. There are several exceptions.


As you can see, alien workers¬†who are working illegally are still considered employees under the Workers Compensation Act. They are entitled to lifetime medical benefits, total disability payments, and permanent partial disability benefits. There is, however, a catch. A partially disabled employee who is not eligible for lawful employment is not entitled to receive temporary total disability benefits if they’re released to light duty work. Nor are they entitled to receive temporary partial disability benefits or vocational rehabilitation.



Creating an Employer-Employee Relationship under Virginia Workers Comp


There must be a contract of hire or employment for an employer-employee relationship to exist under Virginia workers comp A contract of hire is an agreement under which an employee provides labor or services to an employer for wages or other benefits.


You do not need a written employment contract to prove that you are an employee. “At will” employment is enough. The contract of hire may be written, verbal, or implied.


In workers compensation claims involving injured construction workers, employers and insurers often argue that no employer-employee relationship existed. They’ll argue that the injured worker was an independent contractor. Why? Because independent contractors are not covered under the Workers Comp Act.



Test of Employer-Employee Relationship


In determining whether there is an employee-employer relationship, the Workers’ Compensation Commission evaluates these four elements:


  • The right to hire;


  • The power to fire;


  • The obligation to pay wages and how they are paid; and,


  • The power of control of the worker’s actions.


The power to control and direct the employee in his performance of his work is the most significant element in determining the employment relationship.


The right to control includes not only the power to specify the result to be achieved, but also the power to control the means and methods by which the result is attained. If a person has the power to direct the means and methods by which another does the work, then an employer-employee relationship exists. If however a person is free to adopt the means and methods to accomplish the result, then he or she is an independent contractor whom is not covered under Virginia workers’ comp.



Important Virginia Workers Comp Commission Decisions on the Employer-Employee Relationship


Better Home Servs., Inc. v. Medrano, No. 1776-00-4 (Ct. of Appeals 2000): A written document stating that a person is an independent contractor is not binding on the Commission. Though written documents may help determine the parties’ intent, they are not determinative. The parties cannot designate or agree to a legal status. The Commission will look behind the agreement to determine the actual employment relationship.


Richmond Newspapers, Inc. v. Gill, 224 Va. 92 (1982): As a general rule an employee is a person who works for wages or a salary. Further, an absolute right to discharge without cause or notice is one of the earmarks of the employer-employee relationship.


Phillips v. Brinkley, 194 Va. 62 (1952): A truck driver who was hired at a fixed sum per hour for himself and his truck was an employee.


Darby v. Harvey, No. 2101-02-2 (Ct. of Appeals 2003): A claimant was an independent contractor not covered under the Workers Compensation Act when he approached the employer looking for work, received general instructions about performing the work but was able to determine how to complete it, was not supervised by the employer, set his own schedule, and used some of his own tools. Determining who sets the schedule and who provides the tools is an important part of determining the employer-employee relationship.


Purvis v. Porter Cabs, Inc., 38 Va. App. 760 (2002): A taxicab driver was an employee even though he was paid by his fares rather than by wages. The company interviewed the drivers, required them to follow specific rules, and could suspend or fire the driver.


Proving You’re an Employee under Virginia Workers Compensation


If the employer and its insurance company take the position that you’re an independent contractor, contact an attorney right away. These types of claims are complicated and an experienced lawyer can help you build your case and prove that you’re entitled to coverage under the Workers Compensation Act.