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WCB App Div Upholds

The Maine Worker's Compensation Board's Appellate Division issued two decisions on October 20, 2016 upholding (1) a finding that an former independent contractor was an employee and (2) a fine for late payment of WC benefits to him.

In Cantara v. Dube Design & Construction (App. Div. Case No. 14-0031 Decision No. 16-30 and App. Div. Case No. 15-0048 Decision No. 16-31), Cantara was normally an independent contractor who agreed to work briefly for Dube, another contractor who was too busy to complete his projects. Dube paid Cantara an hourly rate and kept its own Superintendent and other employees on the project. Dube fractured his heel when staging gave way on the project, and he claimed entitlement to WC benefits as Dube’s employee.

Dube claimed Cantara was an independent contractor, but Judge Stovall applied 39-A MRSA §102 (13) (A) and found that he was Dube’s employee and thus entitled to WC benefits. Judge Stovall found that Cantara met some of the criteria for an independent contractor, but that he did not have "the opportunity for profit and loss as a result of the services" he performed as required by subsection (3), thus making him Dube’s employee. Dube appealed the ruling, but the Appellate Division upheld Judge Stovall's decision, noting that Dube failed to show that Cantara met all of the criteria in §102 (13) (A).

In the second decision, the Appellate Division upheld Hearing Officer Dunn's decision granting Cantara's Petition for Forfeiture under §324 and ordering Dube to pay Cantara a $5,000 penalty for late payment of worker's compensation benefits per Judge Stovall's decision. Dube had argued that Judge Stovall's decision was void because Cantara really was an independent contractor. Under §324, however, the employer must pay the ordered benefits to the employee pending the employer's appeal.

These decisions demonstrate that the Maine WC Board is serious about ensuring that building contractors properly designate their workers as employees rather than independent contractors and provide these workers with coverage under the WC Act. If you have any questions about whether people you hire are independent contractors or employees, or about any other legal issues, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law