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Supreme Judicial Court of Massachusetts, Suffolk

May 10, 2018

IVES CAMARGO'S CASE.

          Heard: January 10, 2018.

          Appeal from a decision of the Industrial Accident Reviewing Board.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Michael A. Fager for the claimant.

          Paul 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.

          KAFKER, J.

         The 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 an employee.

         We 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.[1]

         1. Background.

         a. Facts.

         The 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.

         In 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 mandatory.

         As part 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.

         On 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.

         The 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.[2] 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 contractor.

         b. Relevant statutes.

         General 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.[3] 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 ...


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