Concert Sys. USA, Inc. v. Weaver


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Docket Number: 2009-WC-00835-COA
Court of Appeals: Opinion Link
Opinion Date: 05-11-2010
Opinion Author: Lee, P.J.
Holding: Affirmed
Additional Case Information: Topic: Workers' compensation - Employee status - Independent contractor - Section 71-3-3(d) - Number of employees - Section 71-3-5
Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ.
Non Participating Judge(s): Carlton, J.
Procedural History: Admin or Agency Judgment
Nature of the Case: CIVIL - WORKERS’ COMPENSATION
Trial Court: Date of Trial Judgment: 04-22-2009
Appealed from: Harrison County Circuit Court
Judge: Lawrence P. Bourgeois, Jr.
Disposition: AFFIRMED COMMISSION’S DECISION TO PAY TEMPORARY DISABILITY BENEFITS
Case Number: A2401-08-215
Note: Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down.
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Concert Systems USA, Inc.




 DONALD PAUL MOORE



  
  • Appellant #1 Brief
    		•
    Appellee: John Weaver JAMES KENNETH WETZEL  
    Synopsis provided by:

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    Topic: Workers' compensation - Employee status - Independent contractor - Section 71-3-3(d) - Number of employees - Section 71-3-5
    Summary of the Facts: John Weaver was injured in an eighteen-wheeler accident while driving a truck for Concert Systems USA, Inc. Weaver filed a claim for workers’ compensation benefits, which was disputed by Concert Systems. The administrative law judge found that Weaver was an employee of Concert Systems; Concert Systems had at least six regular employees at the time of the accident; and Weaver was injured during the course and scope of his employment. Thus, Weaver was awarded benefits. Concert Systems appealed to the Mississippi Workers’ Compensation Commission which affirmed the award. Concert Systems then appealed to circuit court which also affirmed. Concert Systems appeals.
    Summary of Opinion Analysis: Issue 1: Employee status Concert Systems argues that Weaver was working as an independent contractor at the time of the injury; thus, he is not entitled to workers’ compensation benefits. According to section 71-3-3(d), an employee is any person in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied, provided that there shall be excluded therefrom all independent contractors. The traditional test of the employer-employee relationship is the right of the employer to control the details of the work. The Commission found that Weaver was subject to Concert Systems’ control at all times when he worked for them. The job Weaver performed was an integral part of Concert Systems’ business. Weaver was given instructions on when to leave and arrive, the route to take, and where to spend the night. Concert Systems provided all the equipment used on the job, and Concert Systems had the right to fire Weaver at any time. Weaver did not have the right to employ any workers. However, Weaver was employed on an as-needed basis and only worked for Concert Systems on occasion. He was paid on a per-diem basis, and Concert Systems paid for his lodging and travel expenses. Also, Weaver held a full-time position with another employer while working for Concert Systems. Although a close case, Weaver meets the statutory definition of an employee. Issue 2: Number of employees Section 71-3-5 provides that in order for an employer to be subject to its provisions, the employer must have in service five or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied. Randy and Candi Frierson argue that they were not employees under the Act because they did not draw a salary from the company. However, they were officers in the company and paid their house and car notes from the company’s account. Therefore, they were compensated and should be considered employees. Thus, without the inclusion of Weaver as an employee, Concert Systems had six employees.


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