Morrison Mahoney Partner Justin Veiga recently prevailed at the New Hampshire Compensation Appeals Board (CAB), which overturned a Department of Labor decision involving an issue that is currently being addressed, and in some cases litigated, across the country. In Justin’s case, Plaintiff suffered a compensable injury while working for the insured. In addition to her main employment, she also drove for Uber. For Uber, Plaintiff executed Uber’s platform access agreement, which identified Plaintiff as an independent contractor. Nonetheless, when claiming wages, Plaintiff argued that she was an employee of Uber under the NH Workers’ Compensation statute (RSA 281-A:2), which creates a presumption of employment. Under the statute, injured workers with concurrent employment are entitled to an average weekly wage calculation using all earnings. Therefore, Plaintiff argued both her employment with the insured and her employment with Uber so as to significantly increased her compensation rate.
Justin used Uber’s platform access agreement and testimony elicited from Plaintiff on cross-examination to rebut the presumption of employment with Uber. Justin argued Plaintiff met all seven criteria under RSA 281-A:2,VI(b)(1) to be deemed an independent contractor, thereby precluding an average weekly wage calculation using her Uber income. The Department of Labor hearing officer disagreed, finding that only five of the seven criteria had been satisfied. Justin filed a motion for reconsideration citing the hearing officer’s errors of fact and law. The hearing officer denied the motion and our appeal went forward. Following a de novo CAB hearing, the Board’s three-member panel unanimously decided that Plaintiff was an independent contractor of Uber and subsequently she is not entitled to a compensation rate based on combined earnings.
