Earley v. Industrial Com'n

• Court: Appellate Court of Illinois
• Writing for the Court: LEWIS
• Citation: Earley v. Industrial Com'n, 553 N.E.2d 1112, 197 Ill.App.3d 309, 143 Ill.Dec. 126 (Ill. App. 1990)
• Decision Date: 19 April 1990
• Docket Number: No. 4-89-0414WC,4-89-0414WC
• Parties: , 143 Ill.Dec. 126 Larry E. EARLEY, Appellant, v. The INDUSTRIAL COMMISSION et al. (Crown Transport, Inc., Appellee).

Page 1112

553 N.E.2d 1112

197 Ill.App.3d 309, 143 Ill.Dec. 126

Larry E. EARLEY, Appellant, v. The INDUSTRIAL COMMISSION et al. (Crown Transport, Inc., Appellee).

No. 4-89-0414WC.

Appellate Court of Illinois Fourth District.

April 19, 1990.

Matthew W. Kelly, Coppinger, Carter, Schrempf & Blaine, Ltd., Alton, for appellant.

Rammelkamp, Bradney, Dahman, Kuster, Keaton & Fritsche, P.C., Jacksonville (Forrest G. Keaton, of counsel), for appellee.

Justice LEWIS delivered the opinion of the court:

The claimant, Larry E. Earley, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Ill.Rev.Stat.1983, ch. 48, par. 138.1 et seq.) for a back injury he alleged arose out of and in the course of his employment with the respondent, Crown Transport, Inc. The respondent disputed that there was an employer-employee relationship between the respondent and the claimant. After a hearing on the claimant's application, the arbitrator determined that there was not an employer-employee relationship between the claimant and the respondent at the time of the claimant's accident, and she denied the claimant benefits. The Industrial Commission, without considering further evidence, affirmed the arbitrator's decision. The circuit court confirmed the Industrial Commission's decision, and the claimant appeals. The sole issue presented for review is whether the Industrial Commission's determination that there was not an employer-employee relationship between the claimant and the respondent was erroneous either as a matter of law or because it was against the manifest weight of the evidence.

At the hearing before the arbitrator, the evidence presented consisted of the claimant's testimony; the evidence deposition of Dr. Walter Wheelhouse, the claimant's treating physician; and various documents. Because of the nature of the issue involved, i.e., the employer-employee relationship, the doctor's testimony and the medical records introduced need not be discussed as this evidence is irrelevant to this issue.

The claimant testified that on December 31, 1982, he signed a one-year equipment lease agreement with the respondent which became effective on January 4, 1983. Under the lease agreement, the claimant provided the tractor and trailer truck; performed all the maintenance and repair of the equipment; provided fuel and lubricants; and provided a driver to haul shipments for the respondent. The claimant paid for the truck's licenses; however, the licenses were in both his and the respondent's names, and upon termination of the lease agreement, the claimant returned the license plates to the respondent. The claimant was responsible for paying all of the taxes on the truck and for paying the necessary road tolls. Upon delivering the respondent's shipment to its destination, if help was needed to unload the trailer, it was the claimant's responsibility to hire and to pay someone for this purpose. The claimant could hire other drivers to drive his truck, but these drivers had to be approved by the respondent before driving any of the respondent's shipments. Although the respondent told the claimant the date and time for picking up a load and for unloading the shipment, it was the claimant who chose the route to and from his destination. When the claimant was to perform a job for the respondent, either Clayton Erixson would call the claimant or the claimant would call Erixson or the respondent's dispatcher, Perry Franks, in Memphis, Tennessee.

The claimant testified that under the lease agreement, the respondent was responsible for the liability insurance for damage resulting from the operation of the claimant's truck, but the respondent was not liable for damage to the claimant's truck. The claimant had no health insurance, but he did pay for workers' compensation insurance for himself and his drivers. The claimant's workers' compensation insurance was purchased by the claimant through the respondent by deducting the premiums from the payments made to the claimant from the respondent.

In addition to the lease agreement, the claimant had completed an employment application for his work with the respondent. Likewise, any drivers hired by the claimant had to fill out a similar employment application for the respondent.

The respondent required the claimant to have a physical examination and to show evidence of certification as a truck driver. The claimant explained that he had the requisite certifications from the United States Department of Transportation (DOT), from the Interstate Commerce Commission (ICC), and from different States. The certifications which the respondent required were a medical certification, which indicated that the claimant was physically fit to drive a truck; a road test certification, which indicated that the claimant had taken and passed a driving test; and a "certificate of qualifications," which indicated that the claimant had passed the 100-question DOT test. On cross-examination, the claimant admitted that the certifications required by the respondent were the same certifications that a truck driver was required by the ICC or DOT to have, whether the driver worked for a company or was self-employed.

According to the claimant, the ICC required that the decal number of the carrier's ICC permit be displayed on a truck, and it was the respondent's ICC decal number which was displayed on the claimant's truck, as were the respondent's State stickers. The State stickers indicated to a police officer or other authority that the liability insurance required and the fuel taxes required had been purchased or paid for by the carrier.

According to the claimant, his payment for his services for the respondent was a percentage of the gross revenue of the shipment he delivered for the respondent. From these payments, the respondent deducted the claimant's workers' compensation insurance premiums and any cash advances paid to the claimant, but the respondent did not deduct for the claimant's income taxes or social security. The claimant received the same percentage payment from the respondent whether the claimant drove or another driver drove the claimant's truck. While the lease was in force, the claimant primarily drove for the respondent, but he was permitted to do "trip leases," i.e., haul other shipments for other carriers. If the claimant picked up a trip lease, it was arranged through the respondent, and the payment for the trip lease was paid to the respondent, who then paid the claimant the same percentage payment as if the claimant was hauling for the respondent.

The claimant had been given oral instructions by Harry Stokes, the vice-president or president of respondent, with regard to what was to be done if the claimant had an accident while on the road, either going to or coming from a destination. In that event, the claimant was to call the respondent's personnel immediately, and the respondent would take care of the insurance and other pertinent matters. The claimant had also received these same instructions on a printed form in his employment application packet. The claimant testified that he was required to call the respondent when he had an accident in order to enable the respondent to tell a customer where a shipment was if a customer called and inquired about his order.

On April 5, 1983, the claimant picked up a shipment for the respondent. Before leaving for his destination with the shipment, the claimant had pulled into Interstate Garage to have the fuel injectors on his truck changed. Erixson was aware that the claimant had taken the truck to the garage. Once inside the garage, Henry Carl, who was not identified in the record, but who was apparently the mechanic working on the claimant's truck, removed the air cleaner from the claimant's truck. Carl, who was on top of the truck, gave the air cleaner to the claimant and asked him to place the air cleaner on the floor by the wall. The air cleaner was described by the claimant as being 6 inches high, 28 inches wide, 34 inches long and weighing almost 70 pounds. The claimant took the air cleaner as requested, and as he turned to set it by the wall, the claimant's back "popped."

The claimant left the garage, went to Erixson's office and told Erixson what had happened, and then called his wife to come and take him home. The claimant was in pain, but he did not seek immediate treatment for his back. Instead, he went home and made arrangements to have the shipment on his truck taken to Alabama. To do this, he hired Ed Shoptaw to drive his truck. After Shoptaw was cleared by the respondent, Shoptaw continued with the delivery of the load, and during the time the claimant was unable to work because of his back, Shoptaw drove the claimant's truck to deliver subsequent shipments for the respondent. The claimant returned to work on May 13, 1983. On June 15, 1983, the respondent and the claimant terminated their lease agreement by mutual consent.

The claimant introduced into evidence the bills of lading or delivery receipts of the jobs the claimant had performed for the respondent under the lease agreement. These documents showed that the claimant had delivered goods for the respondent on January 21, 1983; January 26, 1983; January 28, 1983; February 1, 1983; February 8, 1983; February 15, 1983; February 17, 1983; February 21, 1983; February 23, 1983; March 1, 1983; March 15, 1983; March 26, 1983; March 30, 1983; April 5, 1983; April 11, 1983; April 20, 1983; April 26, 1983; April 29, 1983; May 6, 1983; May 13, 1983; and June 1, 1983. The bills of lading from April 5, 1983, through May 13, 1983, indicated that Ed Shoptaw drove the claimant's truck on those dates. Lastly, the lease agreement between the respondent and the claimant was admitted into evidence. The pertinent provisions of the lease agreement will be discussed later in this opinion.

On appeal, the claimant contends that the Industrial Commission's...