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Therapist not entitled to comp for brain injury

appeals court

A physical therapist who suffered a traumatic brain injury in a car accident is not entitled to workers compensation benefits because he was not an employee, the Arkansas Court of Appeals in Little Rock held Wednesday.

In Davis v. Ed Hickman P.A., the appellate court unanimously affirmed an Arkansas Workers Compensation Commission decision after determining that the worker was an independent contractor.

John Davis suffered a permanent brain injury requiring assistance with performing his daily activities in the Oct. 7, 2015 motor vehicle collision. At the time of his injury, Mr. Davis said, he worked as a physical therapist for Ed Hickman P.A. in Fort Smith, Arkansas, making home patient visits as a licensed physical therapist.

Ed Hickman P.A. provided Mr. Davis with an Android device to take notes during visits, resistance tubing and ultrasound equipment, but the two parties had signed a written contract listing Mr. Davis as an independent contractor who was paid on a per-patient basis, and required Mr. Davis to carry a minimum amount of professional liability and auto liability insurance to indemnify Ed Hickman P.A.

Mr. Davis had also signed a legal document acknowledging that he was an independent contractor for workers compensation purposes, but Ed Hickman P.A., which also served clients in Oklahoma, did carry workers compensation coverage in Oklahoma after its contractors were audited and not recognized as being independent contractors in that state.

Ed Hickman P.A. and its insurer argued that Mr. Davis was an independent contractor, not an employee. An administrative law judge found in favor of the employer and insurer and the commission affirmed the decision.

Although Ed Hickman P.A. said it did not have control over Mr. Davis’ schedule, he said he was assigned by the company to weekend-call rotations and had patients assigned as well as a time frame in which they needed to be seen. The commission found that Mr. Davis had sole control over his work and that he also worked for a hospital while performing services for Ed Hickman P.A.

Mr. Davis appealed, arguing that the commission’s decision was “unfair and bad public policy,” but the appellate court affirmed it, holding that he was an independent contractor at the time of the accident and therefore not entitled to any benefits.

Though the appellate court noted that Ed Hickman P.A. paid for a workers compensation policy that may have included Mr. Davis, it said that it was “but one factor to weigh” and held that the commission did not err in finding that Mr. Davis was an independent contractor and not entitled to worker compensation.