In Averitt Express, Inc. v. Collins, 2015 WL 4485586 (Ms. Ct. App. 2015), an applicant’s job offer was contingent on his passing a physical, drug screen, and, as he had applied to drive trucks, a road test.  The road test was scheduled to occur on the day before the commencement of orientation.  The applicant was unable to perform the requirements of the job-function portion of his road test, in that he was unable to enter and exit the rear of a trailer in a specific manner.  The next day, the applicant appeared for orientation but was told his job offer was rescinded due to his road test failure.  The applicant then reported that he injured his knee attempting to enter and exit the trailer the day before.  The company paid the applicant a per diem of $75 for attending the first day of orientation, even though he did not attend the actual session, and mileage reimbursement. The company also referred the applicant to an independent medical provider for his alleged injury, where he was diagnosed with a torn lateral meniscus.

The applicant subsequently filed a petition with the Mississippi Workers’ Compensation Commission, requesting workers’ compensation benefits, as he claimed he was injured while an employee of the company. In its response, the company denied an employer/employee relationship existed at the time of the injury. An administrative judge ruled that the applicant was a company employee under an “implied contract of hire” when his injury occurred; therefore, he was entitled to benefits. The company appealed the judge’s findings to the Workers’ Compensation Commission, which affirmed the ruling. The matter was then appealed to the Mississippi Court of Appeals, where it was again affirmed.

The sole issue on appeal was whether “an implied contract of hire” existed between the company and the applicant that entitled the applicant to workers’ compensation benefits as an “employee.”  As explained by the court, subject to certain exceptions, Miss. Code Ann. §71–3–3(d) defines an “employee” as “any person … in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied[.]” The court then noted that the elements of a contract for hire are mutual consent, consideration, and right of control, though they are not rigidly applied in workers’ compensation cases.  Accordingly, the court found that a welcome letter regarding the hiring and orientation process showed mutual consent, that the per diem and mileage reimbursement showed consideration, and that the company’s control over the road test showed its right of control.  Therefore, the judgment of the MWC was affirmed.