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Job Applicant’s Knee Injury Was Compensable


Recently, Chhabra & Gibbs, P.A.  gained a major victory on behalf of our Workers Compensation client. Sherri Okamoto, from the WorkCompCentral website made a recent news article explaining the outcome of the case:

Job applicants who are required to undergo pre-employment testing can get workers’ compensation benefits if they get hurt during the process, according to the Mississippi Court of Appeals.

The court ruled in a decision handed down July 21 that Kevin Collins had an “implied contract of hire” with Averitt Express when he injured his knee during his “road test.” Thus, the court said Collins was an Averitt “employee,” even though he flunked the test and he didn’t get the truck driver position he had sought.

The case was Averitt Express v. Collins, No. 2014-WC-00936-COA.

Averitt, an international transportation and freight logistics company, offered Collins a job three years ago, contingent on his successful completion of a physical, a drug screen and a road test.

Collins came to Averitt’s facility in Cookeville, Tennessee, for his road test and his new-hire orientation. As part of the test, Collins had to physically enter and exit the rear of a trailer in a specific manner. He tore a meniscus while trying.

Averitt then rescinded the job offer, based on his failure to pass the requirements of the road test. It still paid him a per diem of $75 for coming to the orientation, and $238.68 for his mileage.

Although Averitt referred him to a doctor, Collins paid for his own treatment.

Collins later filed a workers’ compensation petition, which Averitt contested on the basis that Collins never became its employee.

However, Administrative Judge Tammy Harthcock determined that Collins was an “employee” pursuant to Mississippi Code Annotated Section 71-3- 3(d), even though he never got the truck driver position with Averitt.

The Mississippi Workers’ Compensation Commission agreed, as did the Court of Appeals.

Last Tuesday, the court explained that Section 71-3- 3(d) defines an “employee” as “any person . . . in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied.”

For a “contract of hire” to exist, the court said, there generally must be “mutual consent, consideration, and right of control.” Although these elements are not rigidly applied in workers’ compensation cases, the court found these elements were all present for Collins and Averitt.

Mutual consent is defined as a “meeting of the minds of both parties to a contract,” the court said.

Since Collins applied for the job and came to the test and orientation, the court said he clearly intended to accept the offer of employment.

And since Averitt extended the offer and welcomed him to the company, the court said, it appeared “Averitt had every intention of hiring him” once he passed the road-test requirements.

The court further reasoned that Averitt had provided consideration to Collins, even though he was never on the company payroll, since he was compensated for attending the orientation and for his mileage.

Averitt also benefited from Collins’ coming to participate in the road test, because it helped Averitt carry out its business of hiring truck drivers, the court said.

The court went on to note that Averitt “clearly controlled the road-test environment” – directing not only Collins’ activities, but also dictating his grooming and manner of dress.

As such, the court said substantial evidence supported the Commission’s decision to uphold the award of benefits to Collins.

Rogen K. Chhabra of Chhabra & Gibbs represented Collins, along with Darryl Gibbs, Candace Mayberry, Ashley Hendricks and Seth Thompson.

Chhabra said he thought last week’s decision was simply a restatement of the existing law in Mississippi for determining when a worker qualifies as an “employee.”

He said the important distinction to make was that Averitt never formally hired Collins as a truck driver, but it “hired him for the initial job of participating in the application process” to get that truck driver position.

As Averitt was having people come to try out for the truck driver job, directing them in what to do and compensating them for their time, Chhabra said Averitt was basically “employing them as (job) applicants.” He acknowledged that most industries “don’t have such an intense application process that they have to pay people to come participate in it,” but “for those industries that need it, they need to know that they are going to have to consider these people employees.”

The law in Mississippi is clear, Chhabra said, “if you are controlled and compensated by an employer, you are an employee, period.”

He said he wouldn’t be at all surprised if Averitt appealed Tuesday’s decision, although he said the statistical odds of the Supreme Court granting review are slim. In any event, he said he believed “Averitt’s argument that (Collins) wasn’t an employee is just not tenable under Mississippi law,” and he doubted it would fly in any other state either.

Thompson, who is now part of Maggio & Thompson, handled much of the case up until it reached the Court of Appeals.

Thompson said Monday he expected Averitt to seek review by the Supreme Court, and if it does, he predicted his colleagues from the Chhabra firm “will probably win there too.”

While there is no “bright-line rule” for determining the compensability of injuries during the hiring process, and cases are “entirely fact-driven,” the Collins case boils down to the fact that “in Mississippi there are three qualifications to be an employee, and he satisfied them,” Thompson said.

“This may not have been your typical employment situation,” Thompson allowed, “for purposes of Mississippi workers’ compensation, this was employment.”

Martin W. Zummach and Gregory Morton of Sparkman-Zummach represented Averitt. They could not be reached Monday for comment.


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