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Workers’ Compensation — Employer – Online Market Host – Moving Subcontractor

By: Teresa Bruno, Opinions Editor//April 3, 2015

Workers’ Compensation — Employer – Online Market Host – Moving Subcontractor

By: Teresa Bruno, Opinions Editor//April 3, 2015

Ferguson v. New Hampshire Insurance Co. (Lawyers Weekly No. 011-034-15, 9 pp.) (Paul Short Jr., J.) Appealed from the Workers’ Compensation Commission. S.C. App.

Holding: Although eMove receives 15 percent of the total amount paid by the customer for a local mover’s services, eMove is not a moving company. Since eMove’s business or trade is to create a marketplace where U-Haul renters can meet movers, eMove was not the statutory employer of a mover’s helper who injured his hand while moving a customer’s washer and dryer.

We affirm the Workers’ Compensation Commission’s denial of benefits.

The mover who obtained a contract with a customer on eMove was not the claimant’s employer, either. The claimant worked for defendant Unterkoefler part time and helped him load and unload trucks rented by Unterkoefler’s customers.

In a few jobs the claimant completed the move alone, including the job on which he was injured. In those jobs Unterkoefler did not exercise control over the work the claimant performed.

Unterkoefler merely gave the claimant the customer’s information. The customer dictated the date, time and location of the job.

When the job was completed, Unterkoefler gave the claimant cash for the entire cost of the job. Unterkoefler testified he did not financially benefit from a job completed by the claimant unless he performed the job with the claimant.

Unterkoefler used the truck his customer rented and any equipment that came with the rental truck. He and his helpers used their own transportation to travel to and from the customer’s residence.

Unterkoefler was paid by the job and split his earnings with the helpers he had during the job, paying them in cash.

As to the right to fire, Unterkoefler could choose to use someone other than the claimant for a job. The claimant could also decline or refuse to perform a job. There was no set schedule, and the claimant did not work on a consistent basis.

Unterkoefler was not the claimant’s employer.

In any event, the claimant failed to show that Unterkoefler regularly employed four or more employees. Unterkoefler was exempt from the Workers’ Compensation Act when the claimant sustained his injury.


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