Orlando Mendoza v. Bear Cartage and Intermodal, Inc.

The petitioner alleged in this case that he was an employee of Bear Cartage, and that he suffered an accident arising out of and in the course of his employment on October 27, 2009. While the respondent did not contest the incident, the respondent contested that the petitioner was an employee of Bear Cartage at the time of the incident. The respondent alleged that the petitioner was an independent contractor. After the trial of this case, Arbitrator Carlson found that the petitioner was an independent contractor and not an employee of the respondent, Bear Cartage, on the date of the accident.

The arbitrator found that there was no controversy regarding the petitioner's method of payment, as he was paid with no deductions taken out other than for insurance and communications. No income tax was withheld, and it was agreed that the petitioner drove his own truck, and not the truck of the respondent, to perform his duties. The petitioner told the admissions people at Christ Hospital after the accident that he was self-employed. The petitioner also applied for an EIN through the Internal Revenue Service for his own corporation. The arbitrator found there was no evidence in the record that anyone had direct control over the petitioner, other than to give him assignments. It was evident from the petitioner's own testimony that the respondent had no control over his actions. Bob Urso testified on behalf of the respondent that Bear Cartage had employee drivers and also owner-operators who were independent contractors. If the driver was an employee of Bear Cartage, they would direct him what route to take. If the driver was an owner-operator and not an employee, they would not tell him what route to take, they only cared about the fact that the trailer was brought from point A to point B. The arbitrator found that the petitioner himself testified that the respondent had no control over the route he took to complete his duties. Based upon the evidence, the arbitrator found that the petitioner was not an employee of the respondent at the time of the alleged accident.

-Attorney Mark F. Vizza