PJC General Negligence 2022

PJC 16.2

W ORKERS ’ C OMPENSATION —E MPLOYMENT

COMMENT When to use. If the question is whether the worker is an employee of the sub scribing employer, PJC 16.1 should be used. If the question is whether the worker is an independent contractor, PJC 16.2 should be used. In cases involving employee/inde pendent contractor disputes outside of the workers’ compensation context, see PJC 10.5, 10.8, and 10.9. Burden of proof. The burden of proof should be placed appropriately in accor dance with the decision of the appeals panel. See PJC 15.1. Source of definitions. See Tex. Lab. Code § 406.121(2). The definition of “inde pendent contractor” differs from that in PJC 10.8, which is based on case law. Con cerning the definition or characteristics of an “independent contractor” as distinguished from an “employee,” see Thompson v. Travelers Indemnity Co. of Rhode Island , 789 S.W.2d 277 (Tex. 1990); Anchor Casualty Co. v. Hartsfield , 390 S.W.2d 469 (Tex. 1965); and Newspapers, Inc. v. Love , 380 S.W.2d 582 (Tex. 1964). Control of details of work. The right of control over the details of the work is the determinative test of whether the worker is an employee and can qualify for compen sation under the Texas Labor Code or is an independent contractor. Turnbough v. United Pacific Insurance Co. , 666 S.W.2d 489, 492 (Tex. 1984) (worker originally hired as independent contractor was employee; withholding for workers’ compensa tion was some evidence); Continental Insurance Co. v. Wolford , 526 S.W.2d 539, 541 (Tex. 1975) (bricklayer furnishing helper and equipment and paid on a per-brick basis was independent contractor; right of control, not right to terminate, is dispositive); Anchor Casualty Co. , 390 S.W.2d at 471 (that work required special skill, that worker furnished his own tools, that he was doing a particular job according to predetermined plans, that he had no set work hours, that he was paid by the job, and that he was not on the payroll or on the Social Security and income tax withholding rolls established that he was not an employee); Hartford Accident & Indemnity Co. v. Hooten , 531 S.W.2d 365, 367 (Tex. App.—San Antonio 1975, writ ref’d n.r.e.) (nurse’s aide pri vately employed but helping with other patients in nursing home in return for meals not employee); Allstate Insurance Co. v. Scott , 511 S.W.2d 412, 414 (Tex. App.—El Paso 1974, writ ref’d n.r.e.) (exercise of control of details of work and acquiescence therein almost at time of accident was sufficient evidence of control). Independent contractor by written agreement. If there was a written contract establishing an independent contractor relationship between the worker and the alleged employer but there is evidence that, in practice, actual control by the alleged employer over the work was persistently exercised, the following instruction should be submitted immediately after the definition of “independent contractor”: A written contract expressly excluding any right of control over the details of the work is conclusive as to Paul Payne ’s status as an independent contractor unless it was a subterfuge from the beginning

230