Hurt at Work?—Who Can File?

Andrew P. Gould, Esq.

It may be surprising that an evolving area of workers’ compensation law is—who is considered an “injured employee”?

There are two topics in which to delve.  First, there are certain types of injured workers who are covered by some other compensation system rather than either the New Jersey or Pennsylvania workers’ compensation acts.  Federal employees, like postal workers, are covered under a federal workers’ compensation system.  Railroad workers; members of a ship’s crew; and longshoremen are all covered under different workers’ compensation systems as well.

The second area of importance centers on whether a worker is an employee who is entitled to workers’ compensation benefits or is instead an independent contractor who is not entitled to workers’ compensation benefits. With rapidly evolving new jobs in the “gig-economy,” such as ride-shares like Uber, Lyft, and other new app-based employment that did not exist until very recently, the law is fertile ground on how these jobs are classified.  If you are unsure as to whether you are entitled to receive workers’ compensation benefits, we strongly suggest that you contact us at 610-258-4003 to discuss your case.

New Jersey

In New Jersey, to determine whether a worker is an employee who is entitled to workers’ compensation benefits or is instead an independent contractor who is not entitled to receive benefits, there are two major tests. The injured worker needs to only meet one of these tests to be considered an employee who is entitled to workers’ compensation benefits.

  1. The control test—The employer has “the right to direct the manner in which the business or work shall be done, as well as the results to be accomplished.”
  2. The relative nature of the work test—This test examines the economic dependence of the worker upon the business they serve and the relationship of the nature of the work to the operation of that business. There are two basic questions to be asked:
    • Is the work of the petitioner an integral part of the regular business of the employer?
    • Is the worker economically dependent on the employer?

Beyond those questions, in order to determine whether a worker is an employee who is entitled to workers’ compensation benefits, there may need to be an investigation of payment methods (W-2, 1099, or cash); any contracts; percentage of income from the employer; insurance on any vehicles operated by the worker, among other inquiries.

Pennsylvania

In Pennsylvania, to determine whether a worker is an employee who is entitled to workers’ compensation benefits or is instead an independent contractor who is not entitled to receive benefits, the courts look at the following:

  1. Direction and control—whether the employer had the right to control and direct the worker’s activities.
  2. Payment of wages/benefits—employee’s services must be for valuable consideration and the payment method must be generally the type one would pay an employee.
  3. Contractual relationships and state and federal regulations—while the courts may look at a contractual agreement to determine a worker’s status, if a state or federal law, or the basic facts of a situation makes one an employee, that determination will not be overruled by a contractual agreement stating the contrary.

It should be noted that some workers in volunteer positions are entitled to workers’ compensation coverage in both New Jersey and Pennsylvania for when they get hurt on the job.  These positions include volunteer firefighters, volunteer EMTs, and auxiliary police officers.

Bear in mind that while being covered by workers’ compensation has obvious benefits, being an independent contractor does not necessarily mean that you are without a remedy if you get hurt on the job.  In fact, in some scenarios, it may even be beneficial.  If you are an independent contractor, and you are hurt on the job, you can bring suit for negligence if there is someone else at fault.  In a personal injury suit for negligence, there are remedies available that are not available under the workers’ compensation system, such as damages for pain and suffering and punitive damages.

Some of these matters can be quite complex, so please do not hesitate to contact the workers’ compensation attorneys at Bruno Law if you wish to discuss your claim.  If you would like to schedule an appointment with the workers’ compensation attorneys at Bruno Law, call us at 610-258-4003 or fill out the Contact form.