A truck driver, who sustained injuries in an automobile accident as he traveled to lunch on the second day of a two-day orientation program was an employee of the trucking company and entitled to workers’ compensation benefits in spite of evidence that at the time of the auto accident he had not yet entered into an actual contract of employment, held a divided Florida appellate court recently in Jenks v. Bynum Transport, Inc., 2012 Fla. App. LEXIS 21613 (First Dist., Dec. 17, 2012). Accordingly, the majority of the court reversed a decision by a Judge of Compensation Claims that had denied compensability.
The majority observed the general rule: that there is no entitlement to workers’ compensation benefits before hiring, citing Larson’s Workers’ Compensation Law, § 26.02, but the majority concluded that here the driver should be deemed an “employee” retroactively to the first day of orientation, such that the driver was subject to the Workers’ Compensation Law, considering the following: the driver was required to attend orientation prior to starting the first assignment as a truck driver; the trucking company provided travel pay for lodging expenses incurred during the two-day orientation period; the company exerted control during the two-day orientation period, evidenced by its commandeering of the driver’s transportation throughout the orientation period; the orientation was not part of the application process and took place upon completion of the application process; and significantly, according to the trucking company’s payroll records, the driver was paid a salary for attending orientation.
The majority also indicated that because the written documentation created by the trucking company indicated that–consistent with the driver’s own understanding of his relationship with the company–the driver was hired as of the first day of orientation by operation of salary paid for attending orientation, he was an “employee” for workers’ compensation purposes at the time of the motor vehicle accident.
Judge Thomas dissented. Judge Thomas indicated that the majority had overlooked the role of the JCC as the finder of fact, and the appellate court’s limited role on appeal to review such findings for competent, substantial evidence.