Appeal from the Circuit Court of Cook County No. 10 L 50622 Honorable Alexander P. White, Judge Presiding. Appeal from the Circuit Court of Cook County No. 10 L 50625 Honorable Alexander P. White, Judge Presiding.
The opinion of the court was delivered by: Justice Hoffman
Workers' Compensation Commission Division
JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Hudson, Holdridge, Turner, and Stewart concurred in the judgment and the opinion.
¶ 1 Both the claimant, Antoni Labuz, and JKC Trucking Co., Inc. (JKC) have appealed from an order of the Circuit Court of Cook County which confirmed a decision of Illinois Workers' Compensation Commission (Commission), awarding the claimant certain benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)), for neck, back, and left-shoulder injuries sustained while in the employ of JKC . We consolidated the two appeals for review.
¶ 2 The following factual recitation is taken from the evidence presented at the arbitration hearing held on July 23 and 24, 2009, as well as the record on appeal.
¶ 3 Through a Polish interpreter, the claimant testified that he began working for JKC as a truck driver in May 2007. He said that JKC required him to submit documentation and to watch a training video before starting work. On cross-examination, the claimant agreed that JKC also required him to pass a drug test. The claimant recalled that, at the time he was hired, JKC "talked about whether [he] was going to get some percentage or whether [he] was going to be paid per trip," and he was "supposed to pick either one." On cross-examination, the claimant explained that JKC required him to submit written invoices for his trips in order to receive payment for his work. The claimant said that JKC did not offer him any benefits and in fact told him that he would not receive health insurance from the company.
¶ 4 The record also contains a "Master Independent Contractor's
Agreement" signed by the claimant in June 2007. That document
indicates that the claimant was retained as an independent contractor
for JKC. The claimant testified that he did not understand the
document, which was written in English, but signed it anyway because
he understood that his doing so was a condition of
cons. his continued employment with
JKC. The claimant further explained that he believed the independent
contractor agreement was part of his employment agreement.
¶ 5 The claimant testified that he normally learned of a job JKC wanted him to complete by contacting JKC to request work or having JKC contact him. He said that, "many times," he called JKC to ask for work and was told no loads were available. When asked on cross-examination whether he had the right to turn down jobs, the claimant recalled one instance in which he was sick and "asked that another driver take a load from Chicago to Ohio, but [he] had no say in this matter."
¶ 6 The claimant testified that he did not own his own truck when he worked with JKC. Instead, he drove JKC trucks bearing JKC logos, but he noted that he did not always drive the same JKC truck. JKC paid for his tolls and fuel, and it provided him with log books he was to complete to record his movements. On direct examination, the claimant testified that JKC told him what gas stations he could use during his trips, but, on cross-examination, he indicated that he could choose his gas stations from those that accepted JKC checks. The claimant further testified on direct examination that JKC dispatchers chose his routes for him. On cross-examination, he elaborated that there were two main routes to California, one involving Interstate 40 and one not, and he was usually told to avoid Interstate 40. He also said that, in the event that the truck he was driving had mechanical difficulties, he was required to call JKC to obtain authorization before pursuing repairs. In addition, according to the claimant, he was required to report his movements to JKC every morning by 11:00 a.m., or face a $100 fine. On cross-examination, the claimant added that JKC would call him, sometimes "more than ten times per day," to check his status.
¶ 7 The claimant testified that JKC paid him per route and that they paid him with checks. He Nos. 1-11-3007WC & 1-11-3008WC, cons. would earn approximately $1,550 (minus deductions for loading and unloading and for insurance) for trips from Illinois to California, a trek that he estimated took "[s]even, eight, up to ten days." The claimant recalled that he also drove routes from Illinois to Idaho and Texas, and he said he was paid "[l]ess" for those routes. On cross-examination, the claimant agreed that income and social security taxes were not deducted from his JKC paychecks and that JKC reported his income to the IRS via a 1099 form.
¶ 8 The claimant said that he never told anyone at JKC that he wanted to work as an independent contractor. He testified that there was one "break" in his employment with JKC, from October 2008 through February 2009. The claimant said that the break began when he took a trip to Europe to see family. He said that he was not required to submit any forms to JKC to obtain leave time for his trip, but instead that he had an agreement that allowed him to take unpaid vacation at his discretion, so long as he provided two weeks' notice. When he returned from Europe in December, JKC told him that work was slow and they had no routes for him. However, JKC called him with work at the end of February 2009.
¶ 9 On March 28, 2009, the claimant slipped and fell while he was checking a load on his trailer for JKC. The fall caused him to lose consciousness, and it led to the back, neck, and left-shoulder problems that underlie his claim under the Act.
¶ 10 The second witness at the arbitration hearing, Ireneusz Panek, testified that he was an employee of ADP Total Source (ADP) , a company that leased workers to JKC. Panek stated that ADP leased a total of 240 employees to JKC and that JKC paid the premiums on their workers' compensation insurance. He further testified that JKC or ADP caused taxes to be deducted from the Nos. 1-11-3007WC & 1-11-3008WC, cons. paychecks of the 240 leased employees. Panek recalled that, in March 2009, the time of the claimant's accident, JKC had "about 20" non-employee drivers, whose hiring he oversaw. He said that the claimant was one of those independent contractor drivers.
¶ 11 According to Panek, at his initial meeting with the claimant, he offered the claimant two options: full employment with benefits, or an independent contractor relationship. Panek said that the claimant preferred to become an independent contractor so that he could avoid immediate tax deductions.
¶ 12 In his testimony, Panek described several differences between employees and contract drivers. First, regarding the requirement that drivers call in before 11:00 a.m. every day, Panek explained that the requirement applied only to employee drivers and that the $100 fine applied to a third violation of the policy. Panek said that the fines were never applied to independent contractors.
¶ 13 A second difference between employees and contract drivers, Panek explained, was that the company required employees, but not contractors, to submit written requests for time off. Panek also testified that JKC provided benefits to its employees but not contractors, and he said that the claimant received none of those benefits. However, Panek did describe a policy JKC used for helping its contractors obtain occupational accident insurance: JKC found a broker to provide discounted insurance, collected the premiums from its contractors, and submitted them ...