Heard: January 10, 2018.
from a decision of the Industrial Accident Reviewing Board.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Michael A. Fager for the claimant.
S. Kelly (Bruce J. Barker also present) for Publishers
Circulation Fulfillment, Inc., & another.
Catherine K. Ruckelshaus, of New York, Audrey Richardson,
Janette Ekanem, Emily Spieler, & Ingrid Nava, for
Brazilian Women's Group & others, amici curiae,
submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
claimant, Ives Camargo, seeks review of a decision by the
reviewing board of the Department of Industrial Accidents
(department) concerning her claim for workers'
compensation benefits pursuant to G. L. c. 152. The reviewing
board affirmed the findings of an administrative judge,
concluding that the clamant was an independent contractor and
therefore was not entitled to workers' compensation. The
reviewing board made this determination on the basis of the
definition of "employee" contained in the
workers' compensation statute, as articulated in the
twelve-part test from MacTavish v. O'Connor Lumber
Co., 6 Mass. Workers' Comp. Rep. 174, 177 (1992),
and Whitman's Case, 80 Mass.App.Ct. 348, 353
(2011), rather than the definition of employee found in G. L.
c. 149, § 148B, the independent contractor statute. The
claimant appealed, and we transferred the case to this court
on our own motion. The claimant argues that the reviewing
board erred in (1) failing to use the definition of
"employee" under G. L. c. 149, § 148B, to
determine whether the claimant was an employee eligible for
workers' compensation under G. L. c. 152; and (2) finding
that the claimant was an independent contractor rather than
conclude that the independent contractor statute, G. L. c.
149, § 148B, does not determine whether a claimant is an
employee for the purpose of workers' compensation
benefits under G. L. c. 152. The reviewing board correctly
applied the workers' compensation statute's
definition of employee to determine whether the claimant was
an employee under G. L. c. 152, and therefore the claimant
was properly classified as an independent contractor for the
purposes of workers' compensation.
claimant began working as a newspaper delivery agent for
Publishers Circulation Fulfillment, Inc. (PCF), in 2001. PCF
provides home delivery services for newspaper publishers and
pays delivery agents to deliver newspapers to subscribers.
PCF does not publish its own newspapers. Instead, it acts as
a middleman to deliver published newspapers. The claimant was
hired by PCF and she signed various contracts over the years
that identified her as an independent contractor. As part of
her contract with PCF, she was provided with newspaper
delivery routes and a list of customers. Pursuant to the
contract, the claimant could make her deliveries at any time
and in any order she wished, provided that the deliveries
were completed by 6 A.M. on weekdays and 8 A.M. on weekends.
To make the deliveries, the claimant used her own vehicle,
which she did for twelve years. The claimant was paid for
each newspaper delivered as well as a weekly stipend, paid
when she elected to redeliver newspapers to customers who did
not receive a scheduled delivery.
addition to setting a time by which newspaper delivery had to
be completed, PCF required the delivery of dry and undamaged
newspapers. Delivery agents could purchase bags to wrap the
newspapers from PCF, which the claimant did, but this was not
of the PCF contract, the claimant was permitted to hire
assistants or subcontract her deliveries, an option she
exercised. Additionally, given the nonexclusivity of the
contract between the claimant and PCF, the claimant could
deliver newspapers or other items for other businesses. She
also purchased and collected independent contractor work
insurance and filed her taxes as an independent contractor.
September 26, 2010, the claimant was loading newspapers from
PCF into her vehicle using a hand carriage when she fell off
a ramp and hurt her right knee and right hand. She reported
her injury to PCF but did not seek medical treatment. Despite
the fall, the claimant finished her work for PCF that day. On
January 7, 2011, the claimant reported a second injury; she
had slipped on ice while delivering newspapers, injuring her
right leg. Following this second injury, the claimant was
hospitalized and eventually underwent two surgeries, one for
her right knee and the other for her right hand. The claimant
was fired in the summer of 2012.
claimant filed an initial claim for workers' compensation
benefits in 2012 with the department. The insurer objected.
After a conference, the administrative judge issued an order
directing the insurer to pay the claimant temporary total
incapacity benefits. The insurer appealed to a hearing,
seeking a denial of all claims. In the decision issued after the
hearing, the administrative judge determined that the
claimant was an independent contractor and therefore was not
entitled to workers' compensation benefits. The reviewing
board affirmed, finding that the claimant was an independent
Laws c. 152 requires employers to provide workers'
compensation to employees who are injured within the scope of
their employment. The law applies to "employees, "
defined as "every person in the service of another under
any contract of hire, express or implied, oral or written,
" with certain exceptions not relevant to this opinion.
G. L. c. 152, § 1 (4). See Thorsonv.Mandell, 402 Mass. 744, 746 (1988);
McDermott's Case, 283 Mass. 74, 75 (1933). In
MacTavish, 6 Mass. Workers' Comp. Rep. at 177,
the department established a ten-factor test to determine
whether an individual is an "employee" under the
definition provided by G. L. c. 152, § 1 (4), or an
independent contractor and therefore outside the scope of the
statute. The MacTavish factors were then
supplemented in Whitman's Case, 80 Mass.App.Ct.
at 353 n.3, to become a twelve-factor test. The department
has consistently applied some formulation of the
MacTavish-Whitman factors for over
one-quarter century to decide whether an individual is an
employee or independent contractor for workers'
compensation claims. See Whitman's Case, 80
Mass.App.Ct. at 353; Stonev.All
Seasons Painting & Decorating, 25 Mass. Workers'
Comp. Rep. 227, 231-232 (2011); MacTavish, 6 Mass.
Workers' Comp. Rep. at 177. These factors are congruent
to tests used in other jurisdictions to determine whether an
individual is an employee for the purpose of workers'
compensation, all of which are largely derived from the
Restatement (Second) of Agency § 220 (1958). See, e.g.,
Doughtyv.Work OpportunitiesUnl ...