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An individual must be an “employee” to receive workers’ comp benefits, not an independent contractor

The Workers’ Compensation Act only covers “employees” as defined by O.C.G.A. §34-9-1, the same Code section that specifically excludes independent contractors. “A person or entity shall otherwise qualify as an independent contractor and not an employee if such person or entity meets all of the following criteria: (1) is a party to a contract, written or implied, which intends to create an independent contractor relationship; (2) has the right to exercise control over the time, manner, and method of the work to be performed; and (3) is paid on a set price per job or a per unit basis, rather than on a salary or hourly basis. A person who does not meet all of the above listed criteria shall be considered an employee unless otherwise determined by an administrative law judge to be an independent contractor.” O.C.G.A. §34-9-2(e). See also O.C.G.A. §34-9-2(d). Regardless of whether a written contract exists stating the employee is an independent contractor, or the employer reports payments via IRS Form 1099 instead of a W-2, the courts look beyond such aspects to evaluate whether and to what degree the employer controlled the time, manner and method of employment and how the employee was paid.

In Miller v. Kimball, 163 Ga.App. 435 (1982), the Court analyzed the independent contractor issue and the criteria that must be evaluated in determining whether a worker is an employee entitled to workers’ compensation benefits or an independent contractor not entitled to benefits. “The true test of whether a person employed is [an employee] or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work.”

The facts of each case must be evaluated using the criteria discussed in Miller and the statute. More often than not, the independent contractor classification is a ruse by employers to avoid purchasing workers’ compensation insurance, which has a significant adverse effect on employees when they are injured on the job. We consistently find that individuals who are referred to by their employers as “independent contractors” are actually “employees” and therefore entitled to workers’ compensation benefits.

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