Larry Huff v. Regional Transportation Program et al. — 2017 ME 229

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.

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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 . . . .
. . . .

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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).

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[¶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).

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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.

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[¶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.

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[¶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.

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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.

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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