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.

REGIONAL TRANSPORTATION PROGRAM et	al.

JABAR,	J.

[¶1]	 Larry	Huff appeals	from	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.		BACKGROUND

[¶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	 administrative	 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.	 Agway	 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	 assignments	 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	any particular	day.	

[¶4]	 Larry	Huff	began	driving	for	RTP	in	November 2011,	after	hearing	

about	 the	 program	 from	 a	 friend.	 That	month,	 he	 signed	 an 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

provided	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	 “RTP”	

signs	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	

reimbursement	 rate	 of	 $0.41	 per	 mile, which	 was	 commensurate	 with U.S.	

Internal	Revenue	Service	regulations.		Huff	drove	for	RTP	five	days	per	week	

and	received	$700	to	$800	every	two	weeks2 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	 officer 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	

weeks.” (Emphasis	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	award	

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. See	 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	 an 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	

addition,	 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	 the	
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IRS’s	 mileage	 reimbursement	 regulations.”	 Accordingly,	 the	 Appellate	

Division	 noted	 that “[i]t	 is	 not	 the	 lack	 of	 essential	 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	issue	 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

administrative law	.	.	.	.”	 Bailey	v.	City	of	Lewiston,	2017	ME	160,	¶	9,	168	A.3d

762 (explaining	 that	 we	 will	 vacate	 an	 agency’s	 decision	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	uphold	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	they	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	“Payment” Requirement of	the	Workers’	Compensation	Act

[¶10]	 The Workers’ 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	another	under	any	contract	

of	 hire,	 express	 or	 implied,	 oral	 or	 written .	 .	 .	 .” 39-A	 M.R.S.	 §	 102(11)(A)

(2016).

[¶11]	 As	such,	in	accordance	with	 the	statute,	 there	are	 two	elements	

that give	 rise	 to	 the	 employer-employee	 relationship.	 	 The	 first	 element	 is	
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“whether	 or	 not	 the	employer	 has	 retained	 the	 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	 employer	 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	 payment	 requirement	 of	 the	

employer-employee	relationship.

[¶12]	 	 The second	 element	 of	 an	 employer-employee	 relationship	 is	

“payment,	or	expected	payment,	of	some	consideration	by	an	employer	to	an	

employee	.	.	.	.”		Harlow,	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) (“The	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

[¶13]	 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	 receive .	 .	 . 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	 thrifty	 enough	 with	 his	

vehicle[-]related	spending	to	‘profit’	off	his	mileage	reimbursement	– 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.	

[¶14]	 This	 case	 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	that	the	Appellate	Division	reasonably	

interpreted	 the	 Workers’ Compensation	 Act	 to determine that	 Huff	 did	 not	

receive	any	payment for	services from	RTP.
9

[¶15] Aside	from	the	fact	that	Huff	signed	a	document	indicating that he	

was	 merely a	 “volunteer,”	 and	 that	 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	 for	 those	 services	 constituted payment	 for	 services.

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	tax.		When	these	costs	are	

taken	 into	 consideration,	 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.

[¶16]	 	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.		

[¶17]	 	 As	 noted	 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	 service	 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).		

Where	 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	appellant	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’ Compensation	Board Appellate	Division	docket	number	15-0027

FOR	CLERK	REFERENCE	ONLY