Can an Independent Contractor Seek Workers’ Comp Benefits?

Sep 16, 2020 | Workers' Compensation


Virginia’s workers’ compensation system provides benefits for employees who get injured while doing their jobs. The Virginia Workers’ Compensation Act has a specific definition of an employee and many independent contractors do not fit that definition.

However, employers have been known to misclassify people as independent contractors even though they are employees. For example, if your employer has a high degree of control over your work and how you do it, you may be an employee.

If you have questions about your eligibility for Virginia workers’ compensation benefits, our attorneys are here to help. There is no cost or obligation when you meet with us for an initial consultation. We have helped numerous employees obtain benefits after a workplace injury. Founder Geoff McDonald has recovered millions in settlements and awards from cases heard before the Virginia Workers’ Compensation Commission.

How State Law Defines an Employee

According to Virginia’s Workers’ Compensation Act, an employee is anyone in the service of another, whether it is under a contract or apprenticeship. The contract or apprenticeship can be written or implied.

This definition excludes those whose employment is not in the usual course of the trade, business, occupation or profession of the employer. The law gives numerous examples of those who qualify as employees under this definition. The law also lists workers excluded from this definition, such as casual employees, taxicab drivers, licensed real estate salespeople, and owner-operators of motor vehicles leased with or to a common or contract carrier in the trucking industry. There are numerous other examples listed.

However, it can be difficult to apply the text of the law to your situation. That is one of the benefits of seeking representation from our highly experienced workers’ compensation team.

The lawyers at Geoff McDonald and Associates have extensive knowledge of the law and how it applies to a variety of workers.

How Does the Workers’ Comp Commission Determine if Someone is an Employee?

There are four things the Virginia Workers’ Compensation Commission will review to determine if someone is an employee rather than an independent contractor:

  • Right to hire
  • Power to fire
  • Control over the worker’s actions
  • Obligation to pay wages and how wages are paid

The most significant factor to be considered is how much control the employer has over your actions. Essentially, employers have the power to control and direct employees in how they do their work. They specify the result that must be achieved, and the methods used to achieve this result.

If you can accomplish a task in whatever way you see fit, there may not be an employee-employer relationship. However, if you are given specific instructions about how to complete a task, there may be an employer-employee relationship.

Employees vs. Independent Contractors

Generally, workers are considered employees if their relationship with their employer fits the following criteria:

  • Continuing, long-term relationship
  • Tools, materials and labor needed to complete tasks were provided by the employer
  • You would not be liable for damages if you stopped working
  • Employer provides instructions on when, where and how to do your work
  • You were trained by the employer

Generally, workers are considered independent contractors if their relationship with their employer fits the following criteria:

  • You do the same work for this employer that you do for another
  • You own the tools needed to do the job
  • You can hire others to help you complete the job
  • You profit or suffer a financial loss based on how well you manage the job
  • You set the hours you work

If you have read any of the criteria above and believe you may be misclassified as an independent contractor, and you were injured on the job, it is important to discuss the situation with a qualified lawyer. Being out of work for even a short period can be financially devastating and workers’ compensation benefits can help you stay afloat financially.

If you have a long-term injury, such as a permanent partial disability, these benefits may be provided for an extended period as you attempt to recover or find other work.

Need Help with Your Workers’ Comp Claim? Call Today

We know you may have many questions about pursuing workers’ compensation benefits, particularly if your claim has been denied and you need to file an appeal. We are here to help.

The initial consultation to discuss your situation is free of charge. You are under no obligation to hire our firm. If you do, there will be no upfront fees or costs while we manage your case.

Give us a call today to see how we may be able to assist you. We have helped many injured employees obtain benefits to help them while they are unable to work.

Geoff McDonald and Associates: 804-888-8888.


No Fees Unless We Win

    Is a Workplace Injury Outside Normal Duties Covered?

    You may know that you can seek worker’s compensation for an accident that happens at work. But what if you were acting outside of your normal job duties when the accident occurred? Is it still covered? The answer depends on the accident circumstances and whether...

    What If My Workplace Injury Was My Coworker’s Fault?

    If you experienced an injury while completing your job duties, you have a right to seek workers’ compensation to cover your medical care and lost wages. But what happens if your coworker was responsible for your accident?  A Virginia workplace injury lawyer can...

    Are Any Employers Exempt From Workers’ Compensation in Virginia?

    Virginia law requires the majority of employers to carry workers’ comp insurance, which is responsible for compensating ill or injured workers. However, there are a few exceptions to this rule. If you suffered a work-related injury, you’ll need to find out whether you...

    Our Case Results

    Industrial Plant Accident

    Attorneys for the Plaintiff: Jeffrey A. Breit and Justin M. Sheldon Our client was killed in an industrial accident when an unauthorized worker was operating an overhead crane and pinned our client between…

    Rear-End Crash

    Our client suffered a traumatic brain injury, facial trauma, a dislocated hip and severe abdominal trauma when she was rear-ended at a traffic light by a tractor trailer. Suit was commenced shortly after…

    Assault of Log Truck Driver

    Attorneys for the Plaintiff: Geoffrey R. McDonald, Frank H. Hupfl, Justin M. Sheldon.
    Our client suffered a traumatic brain injury after being assaulted and knocked to the ground while fueling his logging…

    Drunk Driving Crash

    Our client suffered neck/head trauma and a broken wrist after his vehicle was struck by a drunk driver while he was stopped at a traffic light. Upon rejection of a settlement offer of $325,000, our litigation…

    Rear-End Collision

    Attorneys for the Plaintiff: Justin M. Sheldon and Geoff R. McDonald, Richmond
    GMA’s client was injured as a result of a rear-end collision in the greater Richmond area. The crash occurred a little after…

    Client Reviews

    Cheryl and Rich were wonderful and patient with me throughout the case. All of my questions were answered. They really helped me through this tough time and made sure to let me know what was going on. I really thank Geoff…

    Troy Saxby

    My experience with GMA staff was first rate. They always represented in a professional way and made sure I had everything as far as paperwork. Kara and Theo made sure to answer all my questions, was always available and so…

    Shirley Brown

    Geoff McDonald & Associates is the team that you want on the field if you’re in need of top notch legal defense! Mr. Taj Henley demonstrated true customer service skills and his expertise made me feel comfortable throughout the…

    Julian Reeves

    Geoff McDonald & Associates: Thank you Taj Henley for all of your hard work and dedication! Very expeditious in my case and I was very satisfied with my settlement. Will recommend to all my friends and family!

    Shareema Williams

    Geoff is number one in my book and I especially appreciate the support of Mr Henley

    Ebony Conwell

    I was so pleased with the knowledge and support from Mr. Taj Henley

    Kideem Frierson

    Thank you Geoff McDonald &Associates. A special thank you to Mr. Taj Henley

    Denise Conwell

    Mr. Taj Henley displays exceptional professionalism for Geoff McDonald & Associates, along with commendable communication skills and customer service. By his work ethic and commitment to the people he serves his value to any…

    Justin Fitzgerald