1 SUPERI OR COURT OF T HE STATE OF DELAWARE RICHARD F. STOKES SUSSEX COU NTY C OUR THO USE

JUDGE 1 THE CIR CLE, SU ITE 2 GEORGET OWN, DE 19947 TELEPHON

E (302) 856 -5264 Benjamin A. Schwartz, Esq. Anthony R. Arc aro, E sq. Schwar tz & Schw artz 1140 South State Street Dover, DE 19901 Ronald W. Hartnet t Jr., Esq. Chrissinger & Baumberger 3 Mill Road, Suite 301 Wilm ington, DE

19806 Stephen A. Hampton , Esq. Grady & Hampton, LLC 6 North Bradford Street Dover, DE 19904
RE: Henry R. Davenport v. D& L Construction & Solid Walls, L LC , C.A. No. S14A-03-002 RFS

Date Sub mitte d: July 2, 2014 Date D ecided: October 27, 2014
Dear C ounsel: Before the Court is the appeal of Claimant Henry R. Davenport

(“Claimant”) of a decision

rendere d against hi m and i n favor of D&L Construction, LLC (“D&L”) and Solid Walls, LLC (“ Solid Walls”) by the Industrial Accident Board (the “ Board”) regardin g Claim ant’s se

parately filed Pe titions to Deter

mineCompensation Due . For the reaso ns explaine d below, the Board ’s deci sion is AFFIRMED
.2 Facts & Procedural Back ground Duringthe relevan t time period, Cl aimant was employed by D&L. On the date of Claiman t’s injury, D&L

was a sub-contractor to Solid Walls, a general contractor. Solid Walls maintains workers’ compensation insurance, but did not receive a certifi c ate of ins uranc e from D&L r egard ing C laimant . At the time of C laimant ’s injury, D&L

did not have workers’ compensation insurance. D&L is a construction company speci al izing in framing and carpentry. The compa ny consisted of the mem

bers of the Miller family : David Miller (“Mr. Miller”), his three brot hers, and his s on. Mr. Miller hired Claima nt to drive the D&L crew
mem bers to their var

ious job sit es, as the ir

Ami sh faith pr

ohibited the m fr

om ow ning
or operating a motor vehicle. About a y ear bef ore Cla imant’s a ccide nt, D&L ’s previous driver had quit, and Claimant was hired after he a pproa ched Mr. Miller about th e job. Throughout

his em ployment with D &L, Cla imant worked five days a week and, along with

his co-wo rkers, was paid on Fridays. Claim ant was paid $60 per day for driving D& L’s cr

ew in Kent County , Dela

ware, and $70 per day fo r driving D&L’s crew to Sussex County, Delaw are. Claima nt’s pay rate wa s determined b y D&L. D&L provided Cl aima nt an Inter

nal Revenu e Servic e 1099 Form for his 20111 Tr. of Henry Davenport at 41:18–19. 3 tax returns. Claim ant

considere d himse lf to be an employee of D&L, rather than an independ ent contra ctor. D&L provided the truck that Claimant used to tra nspor t the D&L crew
mem bers and th eir wor k ma ter ials. H owever, because o f the Millers’ re ligion, the truck was own ed b y D&L ’s f

orme r dr iv er. Thr ou gh ou t h is time with D&L , Claim ant kept the truck a

t his residence. D &L paid for the its insurance, gas, and maintenance. On d ays when D& L was to perform work, D &L would

instruct C laima

nt the nigh t before a s to the job’s loca tion and the time Claim ant was to pick u p the cre w
mem bers. In the morning, D&L w ould provide Claiman t with dir ections to t he location if Claim ant was un aware of how to f ind it. D&L w ould also instruct Claim ant as to when to pick the c rew up at the end of t

he workda

y. S ometi mes in the morning, Claimant h elped loa d the truck when he pick ed up the cr ew. Once at the j ob, on at least one occasion, Claimant would help unload the truck
or its trailer. Also, he would help reload the trailer and clean the site of trash an d lumber at the end of the wor

k day. On one inst ance, he was a s ked to pick up trash because “[t] he so oner we get this cleaned up , the soon er we can go ho me.” 1 H owever, accordin g to Claim ant, he w as not being paid for th is task and so h e stopped performing it.2 In his testimony , Mr. Miller denied that Claimant needed permission to leave the job

after he arrived and unloaded the D &L crew and the truck’s trailer. Mr. Miller also affirmed that when D& L’s jo

b was in Ke

nt County, Claimant

was fre e to leav e if he wa nted. I f the job w as in Sussex County, he was allowed to leave “[s]ome day s.” Tr. of David Miller at 85:18. Accord ing to Cla imant, if t he D&L job was in S ussex County and if he left it, he had to stay within a five-to-te

n-mile radius.
3 Tr. of Henry

Davenport at 36:7. 4 According to Claim ant, he needed D&L’ s perm ission to lea

ve a job s ite during the workday , and

if he lef t, he would be told

what tim e to retur n. 2 Sometim es, he was instructed not to leave

the site. O n one occas ion, he w as told that the c rew would not be there too l ong because of rain. On anothe r, he w as told to stay put because trusses were be ing delivered, but if they w ere not de livered on time, the crew w ould leave. Some times , he was told to not go a nywhe re becau se Mr. M iller wa nted Claim

ant to t ake him to ru n errands . One ti me a t a job sit e, Clai mant w as asked to go pick up mate rials. On anothe r occasio n, he was a sked to lea ve the site and go pick up lumber. When he retu rne d wit h th e lu mber, the crew was b usy. Theref ore, Cla imant asked if he could unload

lumbe r, whic h he did. S poradical ly, C laima ntwas aske d to leave a job site to go pick up a

nother per son. Acc ording to Claim ant, he w ould be sent out on errands for D&L “[e]very now and then.” 3 On one occasion , Claimant helped the D&L crew with t russes. According to Claim ant, he saw a

D&L cr ew m embe r in need of

assistanc e with

the tru sses. Therefore, he went over a nd helped . Mr. M ille r testifi ed, howe ver, tha t after h e4 According to Mr. Miller, Claimant was not happy with this. See Tr. of David Miller at 86.
5 Tr. of Henry

Davenport at 45:20.
6 Id. at 40:20. 5 observed what Claimant

was doing, Mr. Mill er stopped Claim ant and told him not to provide assistance because Cl aim ant wa s not a member of D& L and Cl aimant’s assistance could be problematic. 4 BecauseClaim ant generally w as not required to sta y on the job si te, he would sometimes run his own

personal errands, sleep in the truck, or do his own handy-man work for his own customers. Throu ghout h is time wi th D&L , Claim ant was a licensed general con tractor with his own “little contra cting bu siness.” 5 Howeve r, he did not driv e for anyone oth er than D&L. He also would not use the D&L tr

uck for purposes unrelatedto D&L’ s business w ithout D&L’s perm

ission. Sometime s, when Claim ant would l eave the j ob site, he would run e rrands fo r D&L o n his way back. Oc c asi ona lly, mem

bers of the

D&L cr ew would ask Claim

ant to fix t

hings, whi ch he wou ld do. Also, according to Claimant, he helped put up walls “ several times.” 6 One time, on the ride hom e from a job s ite, Claimant

was told t o get a haircut, which he d

id. According to Mr. Miller, Claim ant was not expected to or asked to be involved in framing work. Mr
. Miller also stated that Claimant wanted to help the D&L crew7 Tr. of David Miller at 85:7. 6

mem bers, but Mr. M iller told him tha t he could not

because h e was not a

mem ber of D&L. Mr. Mill er told Cla imant he would be

paid by check, a lthough, ac cording to Mr. Miller, Clai mant wanted to b e paid “[u]nder the table.” 7 On the day

of Claim

ant’ s inju ry, May 10 , 2012, D &L was providing the framework

on an individu al house in Blades, Sus sex County . Solid W alls was the general contractor. As the D&L crew worked, Claimant sat

in a windows ill. He then noticed th at a D&L wor ker nee ded ass is tan ce mo vi ng a pi ece of f rame d wall into place. Claim ant got up and walked toward the framed w all to hold it for the D&L worker. As he wa

lked over, Claim ant

fell through ply

wood whic h had been c ut in the floor, sus taining injury. Prior to a hear

ing on Claim

ant’s P et itions, D &L reque sted a lega l hearing before the Board to determine if Claim ant was an emplo yee or an independ ent contractor. The Boar

d rendere d adecision, finding tha t Claim ant was a

n independe nt contractor, and

thus ineligi

ble to rec eive wor

kers’ c ompens ation benef its. Cla imant appealedt o th is Court, which reversed an d rem anded the B oard’s decision on t he grounds that the Bo ard, at the legal h earing, improperly placed the

burden of p roof8 See Hen ry Dave nport v. D &

L Constructi

on, et al. , C.A. No. S12A-10-002 (Del. Super. Mar. 25, 2013) (Bradley, J.). 7 on Claim ant, as t

he non-moving party, to prove that he was an employee and not an independent contractor. 8 D&L subs equently withdrew

its reques t. On Febr uary 2 4, 2014 , the Bo ard is sued its wr itten decis ions on Cla imant’s Petitions t o Determ

ine Com pensation D ue, deny

ing Claim

ant’s P etitions as to both D&L and Solid W alls. First, the Board foun d that Claimant w as an independent contract or

hired to provide the limited serv ice of dr iv ing at t he t ime of his inju ry. After laying out the law as to whether a person could be characterized as an employee
or an independent contractor, the Board first looked at the element of co ntr ol. It noted that C laima

nt was told

when to pick up D&L workersat the beginning of the day, where t o take them , and when to pick the m up at the end of the day . Furthe r, the Millers were Am

ish, and thus could not exercise c ontrol over Claimant’ s driving. The control el emen

t also related to the questions of whe ther Claimant’ s occupatio n
was of the ty

pe that wo uld norm ally r

equire dir ection from the em

ployer, and whether the occupation

required specializ ed skill. While t he act of driving itself only required
a basic level of skill, the Millers did not possess that skill allowing them to oversee Claiman t’s performance of hi s job. Moreov er, t he evidenc e showed t hat Claim ant8

controlled his activit

ies when n ot driving D &L cre w me mber s. Claim ant was f ree to sleep, go s hoppin g, or do his own work for h is own cust omers. The Board also considered the distinc tiveness of

Claim ant’s oc cupation w ith whether his work was par t of th e employer ’s normal business and whether em ployer
was indeed in business. D&L certainly was a business. It s business, however, was fram ing and carpentry, not

driving. Further, although Claimant was him self ageneral contractor, he was a driver for D&L, an occupat ion entire ly distinct from

fram ing and carpentry or gen eral contrac ting. Add iti ona lly, the Board

noted that D &L provid ed the instrum entalitie s of Claiman t’s work. D &L supplie d the truck , as we ll a s its ga s, insura nce, and
ma intenance. While this fact generally tends to support finding a clai mant a n employee, the Board stated that the truck was kept at Claimant’ s home, and was even available for his per sonal and pr ofessional

use apart from

his w ork with D&L. Moreover, th e Millers were p rohibit ed from owning o r using th e truck. The Board als o examined the le ngt h of C laimant’s em ployment, noting that Claim ant was hired on

an open-e nded basis to drive the D &L cre w me mber s to their job sites, a task he perf ormed on the date of his injury . The Board stated that Claim ant was hire d to serve mostly, if not exclu sively, as a driv er. The Board noted that Cl aima

nt hims elf appre ciated thi s fact, as Claim ant could not

understand

how9

Mr. Miller’ s request

that Clai mant

get a hair cut relat ed to his dri ving. The Board als o noted that Clai mant c eased pic king up scra p materials because he was not being pai d for such a task , and

that Mr. Miller ha d told

him not to assist in installing t

he trusses
. Although Mr. Miller once paid him $20 for fixing a fan belt on the truck, the Board stated that Claimant was neither com pensated nor had reasonable e xpectat ion of compe nsation

for services other

than driv ing. Moreover, the evidence showed that after performing his drivi ng dutie s, Claimant was free t o do as he p leased. As to Cla imant’s pay, the Board stated tha t he was paid per day when he drove, the rate of which would change depen ding on the county in which D&L’ s job was located. This, the Board noted, resembled a pay -per-job arrangem ent, which support ed findin g Claimant to b e an indep endent co ntractor. The Board als o e xamined whether the partie s believed they w ere cre ating a master-serva

ntrelationship. Claimant insisted that he alwa ys beli eved him self to be D&L’s e m

ployee . Howe ver, the

Board note d that D&L

never wi thheld taxe s from Claiman t’s pay. Further, D &L gave him a 1099 form at the end of the y

ear 2011, and atthat time, well before

his accident in May

2012, Cla imant

never raised the issue of the ambiguit y of his relatio nship wit h D&L. The Board then held

that, even if Claimant wa s an employee, Claimant’s injury
was not compensable because his injury did not arise out of and was not sustained10

within the course

and scope of his em

ployment. Hi s injury

was not w ithin

the course and scope of

his em ployment becau se, altho ugh there w as no dispute that Clai mant
was at the D&L job site when he was injured, he was only a driver. He had be en told by Mr. Miller on a prior occ asion not to pr ovide assist ance wit

h the constr

uction work. He was also off- duty when he w as injur ed, as the D&L cr ew was still work

ing atthat tim e. No one

asked Claimant

to sit in thewindowsi ll while t he crew worked, and no one asked

Claim ant to p rovide assi stance w ith the framed wall. C laima

nt admitted that his com

pensation related entirely

to his drivin g duties, a

nd thus his pay would not have been affected

had he offered assistance with the wall. Claimant was only pr esent

at the j ob site on the

date of his injur y for the fortui tous reason

that he was unfamiliar wit h the area. His injury

also did not

arise out of his em

ployment becau se he was not ac ting within the scope o f his em

ployment, as a driver, whe n he was injur ed. The Boar d also ruledthat the “com

ing and going” rule, and its premises exception, in that an injury is ordinaril

y not co mpens able if it

occurs as an em

ployee is coming in or lea

ving from work, with the exception of an inj ury oc curring on the em ployer ’s prem

ises, did not app ly. When Claimant w as injured, he was not going to work. Rather, he was voluntarily

sitting in the

windowsi ll when he

chose to ge t up and provide assistance without being requeste d to do so. The workda y had not yet ended for the D&L crew.9 Burgos v. Perdue Farms, Inc. , 2011 WL 1487076, at *2 (Del. Super. Apr. 19, 2011).
10 Id.
11 Olney v. Cooch , 425 A.2d 610, 614 (Del. 1981) (citations omitted) (internal quotation marks and ellipsis omitted). 11 Further, nothing but Cl aima nt’s ow n desire required him

to be present at the job site. This voluntary

act, the Board rul ed, did not constitute acting wi thin t he course an d scope of his em

pl oymen t, or eve n align wit

h Claim ant’s ow

n allegati ons as to the nature of his em

ployment with D&L. The Board ruled that Claimant wa s a driver who was neither

paid nor ha d any reasonable expectat ions of being

paid for any other type of work by D&L. Standard of Review When reviewi ng appeals from

the Board , this Court examines only the rec ord upon which the

Board re lied in m aking its de cision. 9 The sole questions for the Court
are whether

substantial

evidence supported th e Board’ s decision a nd whether the Board ’s decision lacked legal error. 10 “Substantial evidence has been defined to mean such relevant evidence as a reas onab le mind might accept a s adequate

to support a conclusion. Substantial evidence is mor e than a sc intilla but l ess than a prepond erance.” 1112 Burgos , 2011 WL 1487076, at *2

. 13 Id.
14 Anchor Motor Freight v. Ciabattoni , 716 A.2d 154, 156 (Del. 1998) (citation omitted).
15 Opportunity Ctr., Inc. v. Jamison , 2007 WL 3262211, at *2 (Del. May 24, 2007) (citation omitted). 12 The requisite degree of evidence is only “ such relevant evidence as a reasonabl e mind might accept as adequate t o suppo rt a conclu sion.” 12 Evaluati ng the evidence, dec idi ng c red ibi lit y issues, and deter mining factual q

uestions are not within the Court ’s purview. 13 The Court rev iews quest ions of la w de novo
. 14 “Absent errors of law, the sta ndard of rev iew of an IAB deci sion is ab use of dis cretion.” 15 Analysis Claim ant contends tha

t the Boar

d’s dec isions tha t he was a n independe nt contractor, rather than an employee, and that his injury did not aris e out of and

within the course an d scope of his em ployment when he was injured were not supported by substan tial evid ence. Concernin g Claim ant’s first point, Claim ant argues that, while being ter minab le atwill, D&L maintai ned a signif icant degr

ee of cont rol over hi s driving duti es and his non-driving

activitie s throughout t

he workda

y, bot h on and off th e job site. At D&L’s discretion, Claimant was on-call to do whatever D &L asked of him. If Claim ant used the tr

uck for ac tivities unr

elated to D &L, hewould do so wit h D&L’s13

perm ission. He also s tates that the Miller s’ inabi lity to own o r opera te a car for religious reasons is irrelevant to this i ssue. D&L, who p rovided the truck, i ts gas, insurance, and maintenance, had the right to con trol Claiman t’s perform ance of hi s driving duties. Further, althoug h driving crew mem bers and materials, as w ell as unloa di ng those materials, were not the primary purposes of D& L’s business, they
were essential . Additio nally, not only did Claim

ant pe rfo rm the essential task of transporti ng crew mem

bers an d ma terials, he also occasionally helped unload materials off of t he truck. Claim ant also states tha

t the length of time of

his em ployment and themetho d of payment indicates that he was D&L’s em ployee. Although he was paid p er job, he worked f

ive days a week, using the tr uck for w ork-rela

ted activi ties, and

was paid
on Fridays, just like the D&L crew mem

bers. Also, he bel ie ved himself to be an employee; and his 1099 form, is no t dispos itive to h is status as an employee. Co ncerning

his second po int, Claimant a rgues that his injur y wa s within

th e
course an d scope of h is em ployment. Th e Board placed much em phasis on the fact that Claimant was hired o nly to be D&L’ s driver. Howeve r, on a num ber of occasions, he was ins tructed to render no n-driving a ssistance to worker s on the jo b,
as well as perform non-driving tasks both on and off the job site. One tim e, Claim ant lent D&L crew m

embe rs his own jack and guided them in its use. Indeed, over tim e,14

Claiman t’s duties expanded. Further, throughout his tenure w ith D&L , Claim ant maintained

his own gen eral cont

ractor’ s license. Theref

ore, he a rgues, D&L had

the collateral benefit of

having a dr

iver who c ould perfor

m many jobs as needed. Given this arrange ment, Claim ant argue s that it w as entire ly re asonable f or him to be present atthe job site in Blades on the date of his injury. It was also reason able for him to provide assistance to a D&L crew mem ber, as he had done o n many prior occ asions. Claim ant also argue s that hi s injury arose out o f his em

ployment becaus e he
was waiting a

t a site, was not pe rmit

ted to go hom

e, and w as helping

a mem ber of the
crew. On prior occ asions, he was told no t to leave a job site after dr opping the crew off. The im

plication i s thus that a

con dition of his e mploym ent was that he was at D&L’s beck

and call. W aiting, a

nd in partic ular wai ting at jo b sites, w as part of his job. C l aima

nt’s inj ury oc curred a

t approxim

ately 3:00 p.m ., rough ly a half hour to forty -five minute s before t he D&L c rew wa s ready

to leave. He was not off-du ty and waiting on the windowsill on his own volition. Instead, he was waiting for the work day to end so he could transport the crew mem bers bac k home . Als o, Claim ant cont ends that the premises exception to the going and coming rule applies becaus e Claim ant, at3:00 p.m ., wa s leaving w ork, and t he injur y occu rred on the

employer’s premises.16 19 Del. C. § 2301(10).
17 19 Del. C. § 2311(a

)(2) (“ For pur

poses of t his section, ‘indep endent c ontract or’ shal l mean any pe

rson not excluded from mandatory c overage under provisions of this chapter, w ho perfor ms work or

provides service s for a c ontract

or, subcontracto r or othe

r ‘contr acting entity ’ in return for remuneration and/or other valua ble considerations but who is not an employe e of the contractor[,] subcontractor or other ‘contracting entity’ or any

other person or entity

with respect to the work performed or the services provided.” ).

18 Falconi v. Coombs & Coombs, I nc. , 902 A.2d 1094, 1097 (Del. 2006) (citations omitted). 15 D&L and Solid Walls argue that the B oard’s decision is supported by substan tial evid ence and free fr om legal error. Under the workers’ com

pensation chapter of the Delaware Code, “‘ employee’
mean s every

person in service of any corporat ion (private , public, munic ipal or qua sipublic), associati on, firm

or person . . . under

any c ontract of

hire, e xpress or im

plied, oral or written , or performing se rvices for a v aluable co nsiderati on.” 16 The Code also defines th e term “independent contracto r.” 17 “[O ]nly emplo yees, not independ e n t contrac tors, are eligible to recei ve workers ’ compensation for work-re lated inj uries. T

he burden of p roof

in a workers’ compe nsation

case is upo n the m oving party . Gene rally the quantum

of proof f

or elem ents in a workers’ com pensation c ase is a prepond erance of the evidence.” 18 A case’s individual f

acts and circu

mstan ces deter

mine a worker’ s status, “ and the fa ctor which has been given predominant consideration is the right to control. An employer19 Id. (citations omitted). 16

may not avoid lia

bility for worker’s c ompens ation si mply by classifying his employ ee as an indep endent co ntractor.” 19 In reaching the conclusion as to whet h er a worker is an em ployee or an independent

contract or, the D elaware Suprem e Court ha s pointed to no n-exclusiv e fact ors lis ted in S ecti on 2 20 o f th e Res tat ement (Sec ond ) ofA age ncy: (a) the e xten t of control, which, by the agreem ent, the master m

ay exercise over the de tails of the

work; (b) whether or not the one employe d is engaged in a distinc t occupati on or business; (c) the kind of occupation, with reference to whethe r, in the locali ty, t

he work is usually

done under t

he dir ection of

the emplo yer or by a specialis t without su

pervision; (d) the ski ll require d in the par ticular oc cupation; (e) whether

the em ployer or the workman

supplies the

instrum entalitie s, tools, and the place

of work f

or the per son doing the w ork; (f) the l ength of tim

e for wh ich the per son is em ployed; (g) the m ethod of pay

ment, whether

by the time or by t

he job; (h) wh ethe r or not the

work is a

part of th e regular

business of the employer; (i) whether

or no t the p arties be lieve they are cre ating the relation of master and serv ant; and20 Id. at 1100 (citing, inter alia , Restatement (Second) of Agency § 220(2)(a–g) (1958)). See also Rocha v. Keka Const., Inc. , 2005 WL 791362, at *4 (Del. Super. Mar. 31, 2005) (“Dela ware Cou rts have defined an indepe

ndent con tractor as one who is enga

ged to d o work in an independent manner, accountable only as to the results obtained, and is not subject to the control or supervision of the employer.” (citation omitted) (internal quotation marks omitted)). In Falconi , the Dela

ware Supreme Cour

t noted an other fo ur-par t test used in making

this determination. However, the Court instructed the use of the Restatement fa ctors “when the issue is whether a claimant is an employ ee or independent contractor of a single business.” Falconi , 902 A.2d at 1100.

21 Valentine

v. W alford , 1984 WL 553521, at *1 (Del. Super. Nov. 5, 1984).
22 Falconi , 902 A.2d at 1100 (citation omitted).
23 Id. at 1101 (citation omitted).
24 Id. (citation omitted). 17 (j) w hether the

principal is or is not in business. 20 In this case, Claimant’ s status cannot be easily determined. “Where the nature of the [employm

ent] relationship does not clearly fit in either category, . . . the issue is one of fact.” 21 On the one hand, Claimant was hired “ for an undefined period” as opposed “to com

plet[ing] a finite number

of tasks before l eaving for another pos ition with someone else.” 22 It can also be said that D&L “ ex erci sed substant ial contro l
over the detail s of [Cla imant ’s] w ork,” at least insof

ar as his dr

iving duties. 23 Further, D &L “provided the substantial instrumentalities, tools, and place of w ork.” 2 4 Although D&L, a s a sub- contractor, did not control the job sites, it still provided those si tes to Clai mant.25 See id. at 1100–01 (“Falconi did not hold himself out as the owner of a distinct

business.” (citation omitted)).

26 See id. at 1101 (“Falconi never submitted an invoice seeking payment for se

rvices rendered and had no written contract.”).

27 Id.
28 Falconi , 902 A.2d at 1101 (“Falconi received a fixed payment of $80/day , $400/week on a time basis rather than based on how many cars he fixed or how much work he accomplished. Even accepting that F alconi enjoyed the flexibility not to come to work, he was paid on a per diem basis rather than for his productivity or the results of his work.” (citation omitted)). 18 On the other h and, Cla imant maint ain ed and utilized his own general contracting license th roughou t his tenu re with D&L. 25 In the i nc ident involving Claim ant helping to c lean up a job site , while he did not ac tually submit an invoice for paym ent, he stopped perform ing the task beca

use he wa s not going to be paid. 26 D&L also did not h old Claim ant “ out to the publ ic as a person who, to all appeara nces, was an employee.” 27 Although Mr . Miller asked Cla

imant to get a haircut, assumedly because Mr . Miller did not like Claimant’s appeara nce, Mr. Miller specific ally

told Claim

ant, on one occasion, that he was not a me mber

of D&L . Also, Claim ant was paid per jo b, rather tha n on a time basi s. If Claimant did not drive, he was not pa id. 28 Claim ant believed t

hat he w as D&L’ s empl oyee. Howeve r, “ it is not determ inative that the pa

rties beli eve or disb elieve tha t the rela tion of m aster and servant exists, except insofar as such belief indicates an assum ption of cont

rol by the29 Id. at 1102 (emphasis added) (quoting Restatement (Second) of Agency § 220 cmt. M Belief as to existence of relation ) (internal brackets omitted).

30 Id. at 1101.
31 Tr. of David Miller at 86:21–23. 19 one and submission to contro l by the other.” 29 The re was n o submis sion on Claiman t’s part. Claimant did not “agre e[] to obey [D &L’s] general rules.” 30 In the incident involving the

trusses, Cla imant

was spec ifically

told by M

r. Mille r not to provide assistanc e. Acc ording to Mr. Mi ller, “ from the very first day [Claim ant] liked to work and li ke normal peop le do they lik e to work. He w ant ed t o h elp me and I told him he can’ t becausehe’s not a member.” 31 Therefore, it was clear to Claimant that he should not provide assistan ce to D&L mem bers on a job site. Yet, he injured himse lf by doing just that, w i thout any request or permission for that assistance. Thus, Claimant was not submiss ive to D&L’s rule s. T he Boa rd thoroughl

y anal yzed e ach of the

Restatem

ent facto rs listed a

bove and decided th at Claim

ant was a n independe nt contracto r. This Court cannot rule that the Board’ s determ

ination was not sup ported by

substantial

evidence . Althoug

h this
case might be considered a close-call, the record contains a sufficie nt degree of evidence t o warrant a fin ding tha t Claimant was an i ndepend ent contra ctor. Further, the Court a

grees wi th the Boar

d that even

if Claim ant could be considered D&L’s employee, he was not act ing wi thin the course and scope of

his32 19 Del. C. § 2301(15). See also 19 Del. C. § 2304 (“Every employer and e

mployee, adult and minor, except as expressly excluded in this chapter, sha ll be bound by this chapter respectively

to pay and to ac cept compensation for personal injury or death by a

ccident arising out of and in the course of employ ment, regardless of the question of neg ligence and to the exclusion of all other rights and remedies.”).

33 Delhaize America, Inc. v. Barkas , 2007 WL 2429375, at *3 (Del. Super. Aug. 22, 2007) (citations omitted).

34 Dravo Corp. v. Strosnider , 45 A.2d 542, 544 (Del. Super. 1945).
35 Id. (citation omitted).
36 Id. 20 emplo ym ent

when he w as injur ed. “ Injury ” for pur

poses of the wor

kers’ compe nsation

is defined as “violence to the physical structure of the body

. . . a rising out of and in t he course o f employment.” 32 “Th e phrases ‘arisi ng out of em

ployment’ and ‘in th e co urs e of

emp l oym ent’ ar

e not sy nonym ous. The y are

distinct an d [the
e mployee] must sa

tisfy each of th em in order to ge t worker s’ com pensatio n benefits.” 33 The phrase “ arising

out of emplo ym ent” “ is genera lly hel d to refe r to the or igin of the accident

and its cau se, and relates to t he chara cter and q

uality of the ac cident with reference to the employment.” 34 Further, “[m ]ost . . . authorities . . . hold that an injury arises out

of the em

ployment if it a

rises out of

the na ture, c onditions, obligations or inciden

ts of the em

ployment, or has a reas onable rel ation to it.” 35 However, the injur

y need not arise from

the emplo yee’ s main work. 36 “It i s sufficient37 Id.
38 Delhaize , 2007 WL 2429 375, a t *3 (c itin g and qu otin g Tickles v. PNC Bank , 703 A.2d 633, 637 (Del. 1997).

39 Delhaize , 2007 WL 2429 375, a t *3 (c itin g Tickles , 703 A.2d at 637).
40 Dravo , 45 A.2d 543–44.
41 Delhaize , 2007 WL 2429375, at *3 (citation omitted). 21 if the inj ury ar

ises from a situation

which is a

n incident or

has a rea sonable relation to the em ployment, and

that there be some causal connection between the injur y and the employment.” 37 The re n eed no t b e, h owe ver , an “e ssen tial causa l relatio nship” be tweenthe injur

y and th e work. 38 “Th erefore , an em ployee does not have

to b e injured during a j ob-relat ed activit y to be eligible f

or worke rs’ com

pensation benefits.” 39 T he phrase “ in the cour se of em ployment” “relates to the time, place and ci rcum stanc es of the accident. It covers those things that an employee may reasonabl y do or be exp ected [to do] within a time du ring which he i s empl oyed, and ata place w

here he m ay re asonably

be during that time.” 40 “Th e genera l rule is that
an emplo yee’ s hours of e mploy ment i nclude a reasonable amount of tim e before and after an employee’s work h ours.” 41 The Boar d possessed a

firm basis in holdi

ng that Claimant

was not inj ur e d within the course

and scope of his em

ployment. Claimant

had been spe cificall

y told42 The Court does not consider the “coming and g oing rule,” as well as its premises

exceptio n, relevant t o this case. Claimant was injured at approxi mately 3:00 p.m. The D&L crew was not set to leave until 3:30 p.m. or 3:45 p.m. Therefore, Claimant was ne ither coming nor going to work because ther e was still a period of time for the D&L crew to work before Claimant drove them home. Even if waiting was part of Claimant’s job, he would have been already working at 3:00 p.m., rather than coming or g oing to work. 22 in the past not

t o help D&L c rew members because he was n ot a member of D&L. Therefore, it was not

reasonab le, and

certainl y not ex pected, for Clai mant t o provide
uns oli cit ed a ssi sta nce tha t le d to his inju ry. 42 Based on the

foregoing, the Board ’s deci sion is AFFIRMED
. IT IS SO ORDERED
. Very truly yours, /s/ Richard F. Stokes Richard F. Stokes Cc: Prothonotary Judicial Case Manager