Mercier collected from Holmes. He remained her employee for purposes of compensation.
A man named Lowell was injured carrying logs for another, under a contract with
a lumber company. The company’s claim
that it owed him no coverage was turned
down by the Supreme Court. Justice Slack,
in a 1921 decision, wrote,
It was the evident intention of the Legislature to make the person or persons,
company or corporation, that for practical purposes was the proprietor or
operator of the business being carried
on the employer, as the word is used
in the statute, though not actually the
employer of the workmen by reason,
among others, of there being an independent contractor who was the direct
employer. Under the provisions of the
statute quoted, the true test is, Did the
work being done pertain to the business, trade, or occupation of the defendant, carried on by it for pecuniary
gain? If so, the fact that it was being
done through the medium of an independent contractor would not relieve
the defendant from liability.72
To avoid liability, an employer may attempt to characterize the injured worker as an independent contractor. In that
case, the burden belongs to the employer.
In 1921, Justice George Powers declared
that common law decisions governing the
liability of a master for injuries received by
a servant, are the “safest guide to a proper interpretation of” the laws of workman’s
compensation. He explained,
If under the contract the party for
whom the work is being done may
prescribe not only what the result shall
be, but also may direct the means and
methods by which the other shall do
the work, the former is an employer,
and the latter an employee. But if the
former may specify the result only, and
the latter may adopt such means and
methods as he chooses to accomplish
that result, then the latter is not an
employee, but an independent contractor. So the master test is the right
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to control the work. And it is this right
which properly differentiates service
from independent employment. It is to
be observed that actual interference
with the work is unnecessary—it is the
right to interfere that determines.73
“The true test” of an independent contractor, according to Justice William Taylor, writing in 1917, “is, did the work being done pertain to the business, trade or
occupation of the [company], carried on by
it for pecuniary gain? If so, the fact that it
was being done through the medium of an
independent contractor would not relieve
the company from liability.”74
No aspect of workers’ compensation
law appears to be evolving faster than the
idea of independent contractor, toward enlarging the category of statutory employer and the development of the “nature of
the business” test. If a worker is performing duties that would otherwise be done by
regular employees, even if the worker is an
independent contractor, and is injured, the
company is liable as an employer under the
Act.75 The secondary effect of this change
in the law is to extend the exclusivity provisions of the Act to companies that are not
the immediate employers of the worker.76
Ruminations: The Centennial of Workers’ Compensatioin in Vermont
employer and employee. The necessity for this is derived from the statute itself, which we have quoted earlier. This
involves an informed consent by the
employee before the employment-relation can be said to exist. This requirement being met, there remains the necessity of showing that the work being
done is essentially that of the special
employer and lastly that such special
employer has the right to control the
details of the work.71
Notice and Waiver
A claim for workers’ compensation requires six months’ notice to the employer
of the accident.77 Filed late, there is no jurisdiction. In 1921, Justice Slack explained,
“the rights of employers as well as the
rights of employees are safeguarded” by
the Act, that “the rights of both are designed to be protected by it ... ” The purpose of notice is to give the employer
an op