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December 24, 1998


Before Steadman and Ruiz, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Steadman, Associate Judge:

"The definition of the term 'employee' . . . has probably produced more reported cases than any definition of status in the modern history of law." 3 ARTHUR LARSON, LARSON'S WORKERS' COMPENSATION LAW § 43.10, at 8-1 (1998). Petitioner Kevin Munson challenges a compensation order of a hearing examiner denying his claim for workers' compensation benefits on the ground that Munson was not an "employee" of Hardy & Son Trucking Co. ("Hardy"). We vacate the order and remand the case to the Director of the District of Columbia Department of Employment Services ("DOES") to clarify the agency's view of the legal standard for determining whether an individual is an "employee" within the meaning of the District of Columbia Workers' [721 A2d Page 624]

Compensation Act of 1979, D.C.Code § 36-301 et seq. (1997), and for further proceedings in this case consistent with that standard.


In June 1994, Munson began hauling sludge for Hardy, a District of Columbia business that was under subcontract to haul sludge from the Blue Plains Waste Treatment Plant in the District to various landfills in Maryland and Virginia. Munson entered into a written agreement to lease Hardy his truck and trailer; the lease stated the "operation does include driver." Munson received no payments for the lease; rather, Hardy gave him work in exchange for the lease. Munson did the same type of work for Hardy that Hardy does in general: hauling sludge. The president of Hardy testified that Munson was not precluded from hauling for other contractors.

Each day, Munson would call early in the morning to supervisors of Hardy or the general contractor at the Blue Plains facility to find out whether there was work for him on that particular day. If so, Munson would be instructed what to pick up when at the Blue Plains facility, where to take the material, and which roads to take en route to comply with regulations regarding maximum weights for trucks crossing bridges. Munson set his own schedule regarding when to take breaks. Munson was paid by the ton hauled, with the rate varying depending on distance he had to travel. Munson's work schedule varied depending on whether Hardy had work for him to do, some weeks working only two to three days and other weeks as many as six days. As was the case for Hardy's hourly employees as well, Munson was not paid for days that he did not work. Hardy deducted no Social Security or other taxes from Munson's paycheck, and Munson received a 1099 tax form. Munson insured his truck and paid for fuel, repairs, and other equipment expenses. He took out his own workers' compensation insurance policy, dated April 4, 1995, which was good only in Maryland, apparently as a requirement for continuing to work for Hardy. Between June 1994 and the time of his accident, Munson worked only for Hardy.

About two or three weeks before Munson's accident, Hardy's staff ordered Munson to park his own trailer at the dispatch site and to use a Hardy trailer with his truck. On November 13, 1995, after dumping at a site in Virginia, Munson had returned to the Blue Plains facility in the District. Munson was standing up on the back of the truck trailer attempting to open one of the doors with a rope when the rope broke and he fell to the ground 10 feet below. Munson sustained multiple injuries, which rendered him unable to work for several months.

Petitioner claims that he suffered a work-related injury while working as an "employee" for Hardy in the District of Columbia, and that he is entitled to benefits under the District of Columbia Workers' Compensation Act ("WCA"), D.C.Code § 36-301 et seq. On February 19, 1997, a hearing examiner issued a compensation order denying Munson's claims on the ground that Munson was not an "employee" within the meaning of the WCA. *fn1 See Munson v. Hardy & Son Trucking Co., H & AS No. 96-176, OWC No. 298005 (Feb. 19, 1997). On March 11, 1997, Munson filed a timely petition for review with the Office of the Director of DOES. The compensation order became final for purposes of judicial review when the Director failed to rule on Munson's internal appeal within forty-five days. See D.C.Code § 36-322(b)(2) (1997). *fn1 On May 12, 1997, Munson [721 A2d Page 625]

timely appealed to this court. See Stone v. District of Columbia Dep't of Employment Servs., 707 A.2d 789 (D.C. 1998) (appeal must be filed within thirty days of the expiration of the forty-five day statutory period); D.C.Code § 36-322(b)(3) (1997); D.C.App. R. 15(a). *fn2


The central issue on appeal is whether the hearing examiner correctly applied the law in determining that Munson was not an "employee," within the meaning of the workers' compensation statute, of Hardy & Son Trucking on the date of his injury. The Act itself simply defines the term "employee" as encompassing "every person, including a minor, in the service of another under any contract of hire or apprenticeship, written or implied, in the District of Columbia." D.C.Code § 36-301(9) (1997). *fn3 Therefore, resort must be made to other sources for assistance in more fully defining and applying the term.

Two distinct court-developed tests exist in this country to determine whether an individual is a covered employee under a workers' compensation statute. See LARSON, supra, § 43.53. The traditional "right to control" test had its genesis in tort law standards for employers' vicarious liability for acts of employees. See id. §§ 43.10, 43.40. This test examines whether the putative employer has a right to control the details of the claimant's work. See id. §§ 44.30-44.35. More recently, some courts have turned instead to the so-called "relative nature of the work" test. Under the "relative nature of the work" test, an employment relationship, rather than an independent contractor relationship, is found "when the work being done is an integral part of the regular business of the employer, and when the worker, relative to the employer, does not furnish an independent business or professional service." Id. § 45.00.

Professor Larson's treatise devotes more than two hundred pages to a discussion of these tests and the extensive case law on the subject, including numerous cases involving the question of whether owner-operator truck drivers are covered employees under workers' compensation statutes. See id. §§ 43.00-45.32. While determination of "employee" status is a very fact-specific analysis, it is clear that the outcome of such a determination in certain cases may hinge on whether the decision-maker applies the "right to control" or the "relative nature of the work" test.

Notwithstanding Professor Larson's assertion (quoted at the beginning of this opinion) as to the frequency in litigation of disputes over the definition of "employee," this court has, so far as we know, never had occasion to address that issue in the context of workers' compensation law. *fn4 In this case, the hearing examiner took the position that the "right to control" and "relative nature of the work" tests are interdependent and should be considered in pari materia. See Munson v. Hardy & Son Trucking Co., supra at 3 (citing LARSON, supra, ยง 45.10, at 8-195 (1996)). ...

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