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Do I Need a Lawyer - Workers' Compensation - Employee vs Independent Contractor


This is an excerpt from one of the recent episodes of 'Do I Need a Lawyer?' hosted by: Gary Martin Hays.

Here's the next question from one of our viewers.

Gary - I was hurt on the job a couple of weeks ago. My employer is not wanting to pay for my medical bills or pay me for my lost time from work because they are claiming I was an independent contractor.

Please help! What can I do? I don't have health insurance and I feel like I'm entitled to receive money while I'm out on disability?

Do I need a lawyer?

-Marcus in Chamblee

Marcus, thanks for the question.

I'm very sorry to hear about your accident and your injuries, as well as the hassles you are going through with your claim.

Let's go right to our expert on this issue - Kellie Henson.

Kellie is the managing attorney for my law firm's workers' compensation department. She has successfully represented almost two thousand injured victims in their workers' compensation claims here in Georgia since 2005.

Kellie - thanks for being available.

Kellie: Glad to help, Gary.
Gary: This is one question we hear often from injured workers that call our office for help.

They are hurt on the job. If they are considered employees, then the employer has to provide workers' compensation benefits if they have 3 or more employees. If they are considered independent contractors, then the employer doesn't have to cover them.

How would you answer Marcus's question?

Kellie: Gary, the only honest answer I can give Marcus right now is - It Depends.

Let me explain:

No one factor completely determines whether or not you are an employee or an independent contractor. The Administrative Law Judge will consider all of the factors and circumstances when making their decision.

Gary: We really do need to know more facts from Marcus to be able to make a determination as to whether or not he is an employee or an independent contractor.

And we address this issue in our forthcoming book, The Authority On Workers' Compensation Claims in Georgia.

Kellie: I'm really looking forward to that book being released on Amazon as it will give injured workers a guidebook they can use to understand the complicated workers' compensation system here in Georgia.

Gary: Kellie, do the court's give us any checklist of factors that we can use to determine whether or not an injured worker was an employee or an independent contractor?

Kellie: Yes. The Court's have generally used the following test:

Did the Employer have the right or did the Employer assume the right to control the time, manner, methods and means of the work performed by the worker?

Gary: I know the Court of Appeals has established a checklist of factors to consider. Let's review those factors.

Kellie: The first is:

How much control did the employer exercise over the details of the work?

The more control the employer exercises over a worker, the more likely he/she will be considered an employee.

Gary: The second factor:

Is the worker engaged in a distinct occupation or business?

Kellie: That's right. Is the worker doing the "regular" work of the business, or doing something that is separate and completely different? For example, a dentist's office may hire a cleaning company to send a worker to the dentist's office to clean it. The custodian would not be engaged in the occupation of being a dentist or a dental assistant, nor is his cleaning of the office in the dental "business". He is engaged in a distinct business of cleaning.

Gary: And let's quickly cover some other factors:


(3) Is the work performed normally done under supervision of the employer or by a specialist who does not need supervision?

In other words, how much control does the "alleged employer" have over the worker?

Gary: And (4):

Is there skill or expertise required in performing the work?

Kellie: Yes. The more skills and expertise the worker has, which is outside the regular occupation or business of the "alleged employer", the more likely the court will find an independent contractor relationship.

Gary: And here are some others:

(5) Does the alleged employer provide tools and/or a place for the work to be performed?

(6) Is there a set time for which the person is engaged in performing the contract?

(7) How is the worker paid for the job?

(8) What was the intent of the parties? Did they intend to create an Employer/Employee relationship, or that of an independent contractor?

Kellie: The best advice I can give Marcus - and any injured worker that is applying for workers' compensation benefits is this -

Hire an attorney to help you right away!

Gary: Please - if you are hurt at work, do not try and take on the insurance company and their lawyers by yourself!

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