Independent Contractor Case: Kier v. Eastern Messenger and Travelers

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Jeff Putnam

Jeff is a workers' compensation attorney located in Omaha, Nebraska.

Independent Contractor Case

The plaintiff, a delivery driver, was injured on the job. A dispute over his employment status arose when the delivery company claimed that he was hired as an independent contractor and therefore was not entitled to workers’ compensation benefits for his injury. The judge determined that the plaintiff held full employee status and was eligible for workers’ compensation benefits. The delivery company was ordered to pay $19,852.05 in medical expenses as well as weekly benefit pay during the plaintiff’s temporary total disability recovery time.

Kier v. Eastern Messenger and Travelers



DOC: 205 NO: 0668


Jeffrey F. Putnam
Attorney at Law
Inserra & Kelley
6790 Grover Street, Suite 200
Omaha, NE 68106

Defendants: Dennis R. Riekenberg
Attorney at Law
Cassem, Tierney, Adams, Gotch & Douglas
8805 Indian Hills Drive, Suite 300
Omaha, NE 68114-4070

This cause came on for hearing before the Nebraska Workers’ Compensation Court at Omaha, Douglas County, Nebraska, on January 24, 2006, on the petition of the plaintiff, answer of the defendants and on the evidence, Judge Ronald L. Brown, one of the judges of said court, presiding. Plaintiff appeared in person and was represented by counsel. Defendants were represented by counsel. Testimony was taken, evidence adduced, and the cause submitted. The Court received Exhibits 1 through 11.


On March 14, 2005, the plaintiff was in the employ of the first-named defendant as a delivery driver, and while so employed and on said date and while engaged in the duties of his employment he suffered injuries to his right arm as a result of an accident arising out of and in the course of his employment by the said defendant when the plaintiff ruptured his right biceps tendon while pulling himself into the box of a delivery truck. The medical causation opinion is at Exhibit 4, page 10.


The plaintiff is entitled to benefits as provided under the Nebraska Workers’ Compensation Act.


The primary issue disputed by the parties was the nature of the business relationship between plaintiff and defendant. Plaintiff believed he was an employee of defendant, which argued plaintiff was an independent contractor. Like most disputed employment status cases, some criteria are indicative of employee status while other weigh toward a finding of an independent contractor relationship. I have weighed the criteria regarding employment status set forth in Hemmerling v. Happy Cab Co., 247 Neb. 919, 530 N.W.2d 916 (1995), Larson by & Through Larson v. Hometown Communications, 248 Neb. 942, 540 N.W.2d 339, (1995) and subsequent jurisprudence and conclude plaintiff was an employee. I will not narratively discuss how each of the 10 criteria weighed for or against the finding of employee status, but will concisely explain the basic rationale for my conclusion so as to provide the basis for a meaningful appellate review, if any. Extent of control was disputed but importantly, there was no written agreement which defined the relationship of the parties and the exercise of control by defendant. However, the evidence indicated plaintiff sometimes drove a company truck, especially for large deliveries, which required a flat-truck, performed deliveries for defendant’s customers, who paid defendant directly, was dispatched by defendant and remained in contact with defendant’s dispatcher throughout the day via a walkie-talkie provided by defendant. Defendant provided cargo insurance for all merchandise delivered. Defendant provided all business forms for the drivers to use with its customers and route sheets for use by drivers. Plaintiff was not hired for a one-time or odd delivery, but intended the employment to be long-term, which was terminated by his injury. Customer deliveries were the regular business of defendant.

Plaintiff commenced employment February 28, 2005, and terminated employment March 14, 2005. During that period of 2.14 weeks he earned $695, less expenses of $80 per week for fuel and maintenance. I find plaintiff’s weekly wage was $244.77.1

The periods of plaintiff’s temporary total disability were likewise disputed. I find plaintiff was temporarily totally disabled from March 14, 2005, through April 6, 2005, when he was released to return to work with a 10 pound lifting restriction and again from June 21, 2005, through August 11, 2005, while recuperating post-surgery (E4, pgs. 6 & 19). In determining the periods of temporary total disability I relied in part on the testimony of plaintiff, who was a credible witness.

At the time of said accident and injury, the plaintiff was receiving an average weekly wage of $244.77 being sufficient to entitle him to benefits of $163.18 per week for 15 2/7 weeks for temporary total disability and thereafter and in addition thereto the sum of $163.18 per week for 22.5 weeks for a 10 percent permanent functional impairment of the right upper extremity.


Defendant shall pay medical expenses on behalf of the plaintiff as follows:

Critical Care Associates$81.92*
Dr. Jack McCarthy$5,083.27*
White River Imaging$1,277.09*
Bergan-Mercy Hospital$12,648.22*
Gary Liebsch$761.55

*Paid pursuant to medical fee schedule audits approved by the Court.

There was no sufficient evidence future medical evaluation or treatment will be necessary.


Plaintiff has demonstrated the ability to obtain and maintain suitable employment and is therefore not entitled to vocational rehabilitation services.


There was a reasonable controversy regarding plaintiff’s employment status.


  1. That defendant pay indemnity and future indemnity as provided in paragraph III.
  2. That defendant pay medical expenses as provided in paragraph IV.

Dated at Lincoln, Lancaster County, Nebraska, on this 23rd day of February, 2006.


/s/Ronald L. Brown

About Jeff

Jeffrey F Putnam is a personal injury attorney and workers’ compensation attorney located in Omaha, Nebraska. If you have head, neck, or back injuries from your job or an auto accident, call today.

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