Editor’s note: This piece from the SCOV Law Blog is by Elizabeth Kruska.
Perrault v. Chittenden County Transportation Authority, 2018 VT 58
[T]his is a workers’ compensation case. In the interest of full disclosure, I am married to an attorney who defends workers’ compensation cases (or, as those in the biz call it, “comp”). I don’t pretend to understand comp like a pro, but I know basically how it works and I know a lot of the words. At my house we talk an awful lot about “medical end” and “permanent total disability” (which I’d like to call “perm totes” and on rare occasions “perm totes McGoats” but that hasn’t caught on) and that sort of thing.
Workers’ compensation is purely a creature of statute. It’s meant to provide compensation (obviously) for workers (obviously) in the event of workplace injuries. Suppose you’re walking up a flight of stairs at work and you slip and sprain your ankle. You need to be out of work for a couple days while your ankle heals and you need to go to the doctor to get it checked out. Easy-peasy lemon squeezy. That’s a workers’ comp claim, and you would get certain benefits for this. But they’re not all this obvious. And that’s because the Legislature, in creating the workers’ comp statutes, chose to define who is eligible for what and when.
Joanne Perrault was a volunteer driver for the Chittenden County Transportation Authority. CCTA runs the buses in Chittenden County. It also has a program that provides transportation to certain eligible riders through a network of volunteer drivers. The volunteers have to pass a background check and are subject to rules and regulations set by CCTA in order to do the volunteering. They use their own private vehicles, which they use to pick up and drop off riders. They don’t get a salary, but they do get mileage reimbursement, and are required to log the time they spend waiting for riders.
The mileage reimbursement is paid at the IRS mileage rate. This is the only money the CCTA volunteer drivers receive. At the time that Perrault was driving, she got about $265 per week in mileage reimbursement, and this became a part of her routine budget. When she applied for the position, her only work was as a volunteer guardian ad litem, and she noted she wanted another position that paid her some money.
She was doing this for about a year and a half when she got into a car accident while driving an eligible rider as a CCTA volunteer.Perra ult got hurt — she suffered some fractured vertebrae, spine and ribs. She applied for workers’ compensation through CCTA, since she got hurt while she was doing her volunteer CCTA driving.
CCTA filed a motion for summary judgment, indicating that Perrault wasn’t entitled to compensation as a matter of law because she didn’t meet the statutory definition of employee. She didn’t get wages for what she was doing. Because there were no wages, she was a volunteer and not an employee. She appeals to SCOV, which ultimately affirms.
As we all know by now, a motion for summary judgment is granted when there is no genuine issue of material fact, and where the movant is entitled to judgment as a matter of law. Since this is purely a law question and not a fact question, SCOV reviews de novo, or anew. Fresh slate. Flip over the Etch-a-Sketch, give it a shake, and start again. For those who wonder, yes, you can still buy an Etch-a-Sketch. The price ranges from $5-$15, depending on the size. There is also an Etch-a-Sketch app, but that just makes my heart sad.
This really comes down to statutory definition of “employee” and what the Legislature meant when it wrote the law. SCOV’s job is to try to give effect to Legislative intent and to interpret the law consistent with what the intent of the law is. Sometimes the Legislature tells us. Sometimes they don’t.
Generally, all employers have to carry comp insurance. There are some exceptions, and those don’t exactly apply here. But employers can’t goof around with calling an employee a “contractor” in an effort to get around having workers’ comp coverage. And if you think about it, that makes perfect sense. If an employee gets hurt at work, by law their exclusive remedy is to make a workers’ comp claim. If the employer tries to say, “Hey, you’re not really an employee, you’re a contractor, so you’re not really covered” that might not fly. If the employee legitimately doesn’t work there, that makes it a little more difficult.
The question is whether Perrault really worked for CCTA or not. She argues that it really was a question of fact, and summary judgment shouldn’t have been granted. Her argument is that she was subject to rules and regulations a lot like an employee manual. She also did get paid in the form of mileage reimbursement.
SCOV disagrees with Perrault’s analysis and agrees with the Commissioner of Labor that under the statutory definition of “employee” for workers’ comp purposes, she just wasn’t one.
For starters, the threshold question of whether someone is an employee or a volunteer is whether that person gets wages. Part of the point of workers’ compensation is to compensate the worker for wages lost during the time of injury sustained while at work. But if there’s no wage, there’s not really a way to compensate the person for the wage because it doesn’t exist. SCOV agrees that Perrault didn’t have wages and was thus a volunteer. And since she was a volunteer she wasn’t an employee.
Sure, she did get some payments from CCTA. The payments she got were mileage reimbursements, which, by law, are different than wages. To boil it down: wages get earned, reimbursements get given back. Even though Perrault probably ended up with more money in her pocket than she spent on gas for driving, mileage reimbursement takes a lot into account other than just gas. It’s meant to incorporate fuel, maintenance, and depreciation. She isn’t really earning the mileage reimbursement, she’s being paid back for it, along with maintenance and wear and tear on her car. But this isn’t enough to make her a statutory employee, so SCOV affirms the ruling for summary judgment.
