MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 229 Docket: WCB

- 16

- 541 Argued : October	12,	2017 Decided: December	12,	2017
Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM, and HUMPHREY, JJ.

LARRY	HUFF

v. REGIONA L TRANSP ORTATION PROGRAM et	al.

JABAR ,	J. [¶1] Larry	Huff appeals	fro m a decision of	the	Workers’	Compensation Board	Appellate	Division	affirming the hearing	 officer’s ( Collier , HO ) 1 decree denying	Huff’s petition	for	award. Huff	contends that he	was	an employee	of Regional	 Transportation	 Program	 (“RTP”)	 and was	 therefore	 entitled	 to receive	 benefits	 for	 a work

- related injury. We	 affirm	 the	 decision	 of	 the Appellate	Division.
I.		B ACKGROUND [¶ 2 ] The	following	facts , found	by	the hearing	officer and	contained	in the	Workers’	 Compensation	Board	 decree	 denying	Huff’s	 petition	 for	award,

1 Pursuant	 to	P.L.	2015,	ch.	297 , §	24 (effective	Oct.	15,	2015),	Workers’	Compensation	Board hearing	 officers	 are now designated	 as	 a dministrative law	 judges	 (ALJ). See 39

- A	 M.R.S.	 §	 318 (2016). However,	the	decision	made	by	now

- ALJ	Collier	was	made	before	this	change.2 are	 supported	 by	 the	 record. See Harlow	 v.	 Agw ay	 Inc. ,	 327	 A.2d	 856,	 858 (Me. 1974) ; 39

- A	M.R.S. §§	318 ,	322(3)	(2016)

. [¶ 3 ] RTP	is	a	nonprofit	agency	that	provides	transportation	services	to disabled,	 elderly,	 and	 low

- income	 clients	 throughout	 Cumberland	 County. RTP	classifies	its	drivers	into	two	categories:	employee	drivers	and	volunteer drivers. Employee	drivers	operate	vehicles	owned	and	insured	by	RTP. They are	 paid	 wages	 for	 their	 time,	 are	 not	 reimbursed	 for	 mileage	 driven,	 and belong	to	a	union. They	are	guaranteed	a	certain	number	of hours	each	week and	 may	 not	 generally	 refuse	 assignmen ts	 or	 days	 of	 work. In	 contrast , volunteer	drivers	own	and	insure	 the	vehicles	 they	drive. They	are	not	paid wages	 but	 are	 reimbursed	 for	 mileage	 driven	 and they do	 not	 belong	 to	 a
union. Volunteer	drivers	are allowed to	refuse	assignments	or	decline	to work

on	a ny particular	day. [¶ 4 ] Larry	Huff	be gan	driving	for	RTP	in	November 2011,	after	hearing about	 the	 program	 from	 a	 friend. That	month,	 he signed	 a n RTP	 Volunteer Driver	Memorandum	of	Understanding which	provided	in	relevant	part:
1. Volunteer agrees	to	assist	in	the	accomplishment	of	the	goals	of RTP	by	being	a	volunteer	driver

.	.	.	.

.	.	.	.3 3. In	return	 for	 the	 volunteer’s	assistance,	RTP	will	reimburse	 to the	 volunteer	 the	 approved	 mileage	 rate(s)	 per	 service	 mile pr ovided	by	the volunteer.

.	.	.	. 8. The	 parties specifically	 agree that	 the	 volunteer	 is	 not	 an employee	of	RTP,	and	that	no	employee/employer	relationship	is contemplated	or	implied	by	this	MOU	or	in	existence	by	reason	of volunteer’s assistance	of the	goals	of	RTP.
9. The	 volunteer	 may	 stop	 volunteer	 service	 for	 any	 reason	 and [without] a	cause. [¶ 5 ] In	the	fall	of	2011,	Huff	sold	his	sedan	and	purchased	a	van	to	have enough	space	 to	 transport	 riders. Huff	 received one day	of	instruction	 from RTP,	 had	 his	 vehicle	 inspected	 by	 RTP,	 and	 was	 given	 two	 magnetic	 “R TP”
si gns	to	attach	to	his	van

. Each	morning,	RTP	provided	Huff	with	a	list	of	his assignments	 for	 the	 day. In	 2011	 and	 2012,	 RTP	 used	 a	 mileage reimb ursement	 ra te	 of	 $0.41	 per	 mile , which	 was	 commensurate	 with U.S. Internal	Revenue	Ser vice	regulations

. Huff	drove	for	RTP	five	days	per	week and	received	$700	to	$800	every	two	weeks 2 in	mileage	reimbursement. The hearing	officer noted	that	Huff	testified that he was able to retain about	half	of the reimbursement after	paying	for	gas	and	vehicle	maintenance.

2 The hearing	 office r found	 that	 Huff	 “generally	 received	 between	 $700.00	 and	 $800.00	 per week	 in	 mileage	 reimbursement.” However,	 there	 is	 no	 competent	 evidence	 in	 the	 record	 to support	 that. To	 the	 contrary,	 Huff	 testified	 that	 he	 “would	 get	 between	 6,	 7,	 $800	 every two w eeks .” ( E mphasis	added).4 [¶ 6 ] On	 August	 21,	 2012,	 Huff	 was	 driving	 for	 RTP	 when	 he	 was seriously	injured	in	a	motor	vehicle	accident. Huff	 filed	a	petition	 for	a ward with	the Board on	July	28,	2014. Because	the	question	of	Huff’s	employment status	 was	 potentially	 dispositive	 of	 his	 petition,	 the	 parties agreed	 to bifurcate	the	matter	and	first	determine	whether	Huff	was	an	“employee”	for purposes	 of	 the	 Workers’	 Compensation	 Act. S ee 39

- A	 M.R.S.	 §§	 101

- 409 (2016). After	a	hearing,	the hearing	officer issued	a decree on	April 16,	2015, concluding	 that	 Huff	 was	 not	 a n RTP	 employee. Huff filed	 a	 motion for additional	 findings	 of	 fact	 and	 conclusions	 of	 law	 pursuant	 to M.R.
Civ. P. 52 (b) ,	which	the hearing	officer denied. [¶ 7 ] Thereafter,	 Huff	 filed	 an	 appeal	 to	 the	 Workers’	 Compensation Board	Appellate	Division,	and	on	November	15,	2016,	 the	Appellate	Division affirmed	the hearing	officer’s decision. In	its	decision,	the	Appellate	Division concluded	 that,	 because	 “the	 $[0].41	 per	 mile	 [Huff]	 received	 as reimbursement	 for	 the	 use	 of	 his	 vehicle	 and	 gasoline	 does	 not	 in	 any	 case constitute	 remuneration,”	 Huff	 was	 not	 an	 “employee”	 under	 the	 Act. In addi tion,	 the	 Appellate	 Division	 held	 as	 nondispositive	 the	 fact	 that	 RTP’s reimbursement	 rate	 for	 volunteers

— $0.41	 per	 mile

— was	 the	 same	 rate	 set out	 by	 the	 IRS	 for	 employees, and	 concluded that it	 was	 “not	 bound	 by	 the5 IRS’s	 mileage	 reimbursement	 regulations .” Accordingly,	 th e	 Appellate Division	 noted	 that “[i]t	 is	 not	 the	 lack	 of	 essenti al	 control	 that	 is	 fatal	 to
Mr. Huff’s	claim;	it	is	the	lack	of	remuneration	for	services.” We	granted Huff’s petition	for	appellate	review. See 39

- A	M.R.S.	§	322	(2016) ; M.R.	App.	P.	23 (c ) (Tower 2016). 3
II.		DISCUSSION [ ¶ 8 ] At	 issue is	 whether	 the Appellate	 Division	 was	 correct	 in	 its determination that	 Huff	 was	 not	 an	 employee	 for	 purposes	 of	 the Workers’ Compensation Act.
A. Standard	of	Review [ ¶ 9 ] “ The	i ssue	 of	 employment	 status	is	 a mixed	 question	 of	 fact	 and law.” Stone	 v.	 Thorbjornson ,	 656	 A.2d	 1211,	 1213	 (Me.	 1995)

. We	 review decisions	 of	 the	 Appellate	 Division	 “according	 to	 established	 principles	 of

a dministrative law	.	.	.	.” Bailey	v.	City	o f	Le wiston ,	2017	ME	160, ¶	9, 168	A.3d
762 ( explaining	 that	 we	 will	 vacate	 an	 agency’s	 decis ion	if	it	is	 “affected	 by

. . . error	 of	 law”)	 (quotation	 marks	 omitted). We “afford	 appropriate deference	 to	 the	 Appellate	 Division’s	 reasonable	 interpretation	 of	 the workers’	compensation	statute, and	will	uph old	that	interpretation	unless the

3 The	restyled	Maine	Rules	of	Appellate	Procedure	do	not	apply	because	 this	appeal	was	 filed prior	to	September	1,	2017. See M.R.	App.	P.	1	(restyled	Rules).6 plain	 language	 of	 the	 statute	 and	 its	 legislative	 history	 compel	 a	 contrary result.” Id. (citation	 omitted) ( quotation	 marks	 omitted )

. However,	 “in	 the absence	of	 fraud,”	 the hearing	officer’s factual	 findings	are	 final. 39

- A M.R.S. § 318 (2016) .	 	 Where	 a	 party	 has	 filed	 a M.R.	 Civ.	 P.	 52(b) motion	 for additional	 findings	 of	 fact	 and	 conclusions	 of	 law, “ we	 review the	 original findings	 and	 any	 additional	 findings	 made	 in	 response	 to	 the	 motion	 for findings	to	determine	if	they	are	sufficient,	as	a	matter	of	law,	to	support	the result	and	if	t hey	are	supported	by	the	evidence	in	the	record.” Bayberry	Cove Children’s	 Land Tr. v.	 Town	 of	 Steuben ,	 2013	 ME	 35,	 ¶	 5,	 65 A.3d	 1188 (quotation	marks	omitted).
B. The “ P ayment ” Requirement of	the	Workers’	Compensation	Act [ ¶1 0 ] The Worker s ’ Compensation	 Act	 requires	 the	 payment	 of compensation	to	an	“employee	who	.	.	.	receives	a	personal	injury	arising	out of	and	in	the	course	of	employment	.	.	.	.” 39

- A	M.R.S.	§	201(1)	(2016)

. The	Act defines	“employee”	as	a	“person	in	the	service	of	ano ther	under	any	contract of	 hire,	 express	 or	 implied,	 oral	 or	 written

.	 .	 .	 . ” 39

- A	 M.R.S. §	 102(11)(A) (2016). [ ¶ 1 1 ] As	such,	in	accordance	with	 the	statute,	 there	are	 two	elements that give	 rise	 to	 the	 employer

- employee	 relationship.	 	 The	 first	 element	 is7 “whether	 or	 not	 the	employer	 has	 retained	 th e	 right	 to	 control”	 the	worker. Harlow ,	327	A.2d at 859 (quoting Owen	v.	Royal Indus. ,	 Inc. ,	314	A.2d	60,	62 (Me.	 1974) ).	 	 Where	 an	 employe r	 does	 not	 “exercise[]	 essential	 control	 or superintendence ”	 of	 that	worker, 39

- A	M.R.S.	 §	 102(13) ( 2011 ) , 4 there	is	 no employer

- employee	 relationship	 for	 purposes	 of	 the	 Act. See West	 v.	 C.A.M. Logging ,	 670	 A.2d	 934 , 936

- 37 (Me.	 1996) ; Timberlake	 v. Frigon	 &	 Frigon , 438 A.2d	 1294 ,	 1296 (Me.	 1982)

. Because	 RTP’s	 control	 of	 Huff	 is	 not	 the issue	 before us ,	 we	 focus	 solely	 on	 the	 paym ent	 requirement	 of	 the employer

- employee	relationship. [¶1 2 ] The second	 element	 of	 an	 employer

- employee	 relationship	 is “payment,	or	expected	payment,	of	some	consideratio n	by	an	employer	to	an employee	.	.	.	. ” Harlo w ,	327	A.2d at 859

. This	element	necessarily “ exclud[ es] from	coverage	purely	gratuitous	workers	who neither	 receive,	nor	expect	 to receive,	 pay	 or	 other	 remuneration	 for	 their	 services.” Id

. (quotation	marks omitted); see 3 Arthur Larson	 &	 Lex K.	 Larson, Larson’s	 Workers’ Compensation	Law §	65.01	at	65

- 1	(2000) ( “T he	word	‘hire’	connotes	payment of	some kind

. ” ).

4 Section 102(13) was repealed	and	replaced	by section	102(13

- A). See 39

- A	M.R.S.	§	102(13

- A) (2016), amended	by P.L. 2011,	ch.	643,	 §§	7

- 8 (effective	Dec.	31,	2012). However, because Huff’s injury	occurred	on	August	21,	2012,	section	102(13)	guides	our	analysis	here.8 [ ¶1 3 ] Huff	argues	that	he	received	remuneration	because	he	“expected to	be	paid	for	the	mileage	he	drove,	[and]	relied	on	the	money	to	live	on.” He contends	that	he	was	an	employee,	not	a	“purely	gratuitous”	worker,	because he	 “expect[ed]	 to	 re ceive

.	 .	 . pay	 or	 other	 remuneration	 for	 [his]	 services.”
RTP argues	 that	 Huff	 did	 not	 receive	 remuneration	 “for	 his	 services,”	 but rather,	was	reimbursed	solely	for	expenses	incurred	as	a	result	of	driving	his

car. RTP	 further	argues	that	Huff	may	not be	“convert [ ed ] ”	 from	a	volunteer into	 an	 employee	 merely	 “because	 he	 was	 t hrifty	 enough	 with	 his vehicle[

- ]related	spending	to	‘profit’	off	his	mileage	reimburseme nt

– at	least in	the	short	term	.	.	.	. ” According	to	RTP,	this	theory	of	remuneration	ignores the	possibility	that a driver	may	experience poor gas	mileage	or	require	more regular	maintenance	than	Huff,	thereby	eliminating	any claimed remuneration that the driver	may	experience. [ ¶1 4 ] This	 ca se	 presents	 an	 issue	 of	 first	 impression	 in	 Maine

— whether a mileage	 reimbursement	 to	 a	 “volunteer”	 can	 constitute
remuneration when	 it	 is	 significant	 enough	 to	 exceed	 the	 volunteer’s immediate expenditures. We conclude	t hat the	Appellate	Division	reasonably interpreted the	 Workers’ Compensation	 Act to determine that Huff did	 not
receive any payment for	services from	RTP.9 [ ¶1 5 ] Aside	from	the	fact	that	Huff	signed	a	document	indicating that he

was merely a	 “volunteer,” and t hat the	 only	 remuneration	 he	 received reflected	 his	 mileage, the	 reimbursement	 rate	 of	 $0.41	 per	 mile	 does	 not compel	 us to overrule	 the	 Appellate	 Division’s decision	 that	 such reimbursement	did	not	constitute payment	for	services. Rather,	the	Appellate Division’s interpretation was reasonable ,	and	the hearing	officer’s finding	that Huff	was	able	to	operate	his	vehicle for	less	than	the	reimbursement	rate	does not	mean	 that	 the	 rate	 constituted	 payment for purposes	 of	 the	 Act

. There
may be a	 case where	 the reimbursement	 rate for	 mileage is	 so	 high,	 or	 the receipt	 of	 other	 benefits	 is	 so	 great, that	 a	 reasonable	 interpretation	 of	 the Workers’	 Compensation	 Act would	 compel us	 to	 conclude that the reimbursement f or	 those	 services constitute d payment	 for	 service s . 5 See Cardello	 v.	 Mt.	 Hermon	 Ski	 Area,	 Inc. , 372 A.2d	 579, 580	 (Me.	 1977) ( concluding	 that a ski patroller for the	National	Ski	Patrol was not a “purely gratuitous	 worker”	 where his family received “a	 season	 pass to	 ski at	 the reduced	 price	 of	 $10.00” and he received “free	 liquid	 refreshments

— coffee, soda	or	hot	chocolate ” ) (quotation	marks	omitted) .		However, that	is	not	 the

5 Huff’s	argument	is	based	on	consideration	of	his costs	for	fuel	and	maintenance. In	reality,	this understates his actual	 operating	 cost because	 it	 does	 not	 account	 for	 such	 expenses	 as	 the amortized	or	depreciated	cost	of	the	vehicle	itself,	insurance, and excise	t ax.		When	these	costs	are taken	 into	 c onsideration,	 the	 margin

— which	 he	 claims	 is	 a	 form	 of	 “payment”

— is	 reduced	 or possibly	even	eliminated	altogether.10 case	before	us , and we therefore cannot	say that it	was	unreasonable	 for	the Appellate	Division to	 conclude	 that	 the reimbursement provided	 to	Huff	 did not	constitute	payment for	services

. [¶1 6 ] Huff also argues	 that	 even	if	 the	 reimbursement	 he	 received	is not	 considered	 payment	 for	 services,	 he	 nonetheless	 retains	 a	 right	 to compensation	 because	 he “ submit [ ted ] himself	 to	 the	 control ” of	 RTP. See Harlow ,	327	A.2d at 860	n.2 .		We	disagree. [¶1 7 ] As	 not ed	 above,	 the	 Worker’s	 Compensation	 Act	 requires	 that compensation	 be	 paid	 to	 an	 “employee	 who	 .	 .	 .	 receives	 a	 personal	 injury arising	out	of	and	in	the	course	of	employment	.	.	.	.” 39

- A	M.R.S.	§	201(1) .		The Act	 defines	 “employee”	 as	 a	 “person	 in	 the	 s ervice	 of	 another	 under	 any contract	of	hire ,	express	or	implied,	oral	or	written , ” 39

- A	M.R.S.	§	102(11)(A), (emphasis	 added), and	 “[t]he	 word	 ‘hire’	 connotes	 payment of	 some	 kind. ”
3 Arthur	Larson	&	Lex	K.	Larson, Larson’s	Workers’	Compensation	Law § 65.01 at	 65

- 1 .	 	 Thus,	 the	 Act’s	 definition	 of	 “employee”	 plainly	 anticipates	 that	 a
worker must	receive	remuneration	as	payment	for	his	services in	order to	be entitled	 to	 compensation	 under	 the	 Act. See 39

- A	 M.R.S.	 §	 102(11)	 (2016)

. W here	 a	 worker	 “submits	 himself	 to	 the	 control	 of	 another”	 but	 does	 not receive	payment, he	is	not	an	“employee” for	purposes	of	the	Act.11 The	entry	is: Judgment	affirmed.

James	 J.	 MacAdam,	 Esq.,	 Nathan	 A.	 Jury,	 Esq.,	 and	 Donald	 M.	 Murphy,	 Esq. (orally) ,	MacAdam	Jury,	P.A.,	Freeport,	for	appell ant	Larry	Huff Matthew	 W.	 Marett,	 Esq. (orally) ,	 Maine	 Employers’	 Mutual	 Insurance Company,	Portland,	for	appellees	Regional	Transportation	Program	and	Maine Employers’	Mutual	Insurance	Company

Workers ’ Compe nsation	Board Appellate	Division docket	number	15

- 0027 F OR C LERK R EFERENCE O NLY