Safety and OSHA News

Injured during pre-employment test: Does he get comp?

“Welcome to the company.” Could that phrase put you on the hook for workers’ comp? 

Kevin Collins applied for a job with Averitt Express Inc. as a truck driver. The company sent him a letter stating, “Your job offer is contingent upon your passing your physical, drug screen and road test.”

The road test included a job-function test which required an applicant to physically enter and exit the rear of a trailer in a specific way. Collins couldn’t do that, so he failed the test.

After receiving word Averitt was rescinding the job offer, Collins told the company he’d injured his knee attempting to enter and exit the trailer. He was diagnosed with a torn lateral meniscus.

Averitt paid Collins a per-diem rate of $75 for showing up for the tests and mileage ($238.68) to get to the company’s Cookeville, TN, location.

Collins applied for workers’ comp benefits. Averitt rejected his claim.

An administrative judge ruled Collins was an Averitt employee when he was injured and he was due comp. The Mississippi Workers’ Compensation Commission affirmed the AJ’s ruling.

Averitt appealed to a state court.

Welcome letter was key

The appeals court determined the only issue in this case was whether “an implied contract of hire” existed between Averitt and Collins. Averitt made three different arguments that there was no contract.

Averitt argued there was “no mutual consent by the parties to any contract for hire.”

The court said the letter Averitt sent to Collins providing him with details of his hiring was crucial to its decision. The letter stated:

“Welcome to Averitt Express. We are proud to have you as a member of our team … “

Although Averitt argued that the letter was just “providing Collins with an opportunity to interview,” the court noted the welcome statement and the phrase “member of our team” and found this was enough to disprove there was no mutual consent to a contract for hire.

Averitt also argued Collins’s “activities in participating in the road test in no way benefited Averitt.”

But the court found the road test benefited the company by testing drivers’ ability to perform job tasks.

Averitt’s last argument was that it had no control over Collins’s physical conduct, so he wasn’t an employee.

The appeals court noted the letter laid out Averitt’s dress and grooming codes and the company clearly controlled the road test.

The Mississippi Court of Appeals decided the AJ and comp board decided the case correctly:

“There was substantial evidence to support the Commission’s determination that Collins was an Averitt employee at the time of his injury, under an implied contract for hire, and that he was entitled to benefits.”

Other states’ courts besides Mississippi’s have decided that job applicants should receive workers’ comp when they are injured during pre-employment tests. As usual though, comp laws vary from state to state, as do court rulings.

What do you think about the outcome of this case? Let us know in the comments.

(Averitt Express Inc. v. Kevin Collins, Court of Appeals of Mississippi, No. 2014-WC-00936-COA, 7/21/15)

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  1. stedman holder says:

    Why couldn’t he perform the test? Pre-existing condition?

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