concurring:
I concur with the majority opinion. I write only to comment upon Justice Durham’s dissent. Justice Durham correctly notes that the trend of many jurisdictions is to move away from a strict right-to-control test, either in favor of or in combination with a number of other tests. Those tests purportedly acknowledge a more realistic and comprehensive view of the increasingly complicated nature of employment relationships. In particular, Justice Durham proposes that we adopt a “relative nature of the work” test, which would examine all facets of the employment relationship in determining employment status. She borrows this test from IB Arthur Larson, Larson’s Workmen’s Compensation Law § 43.52.
While we may well wish to reexamine our general adherence to the right-to-control test at some time in the future, I believe that this case does not afford the appropriate opportunity to do so now. In particular, the application and impact of Justice Durham’s proposed test is not adequately defined or assessed in her dissent. Moreover, it is not clear that Larson’s commentary accounts for recent trends in on-the-job injury litigation. I address each of these concerns briefly in turn.
Justice Durham focuses on the employment arrangement negotiated between Geneva Rock and Grange. She points to a number of factors — primarily involving Grange’s responsibility for maintaining his own equipment and managing his own payroll, insurance, and deductions — which purportedly place Grange in the role of an independent contractor. She then proceeds to outline one of the proposed tests contained in Larson’s treatise, the “relative nature of the work” test. Her reliance on this test is, in my view, highly problematic in this particular case. Indeed, application of that test does not seem to produce the result Justice Durham *252reaches. Professor Larson indicates that application of the nature-of-the-work test has increasingly led to diminution of the independent contractor status and expansion of employee status. Larson, § 43.53 to .54. In other words, according to Larson, application of the nature-of-the-work test is more likely (rather than less likely, as implied by Justice Durham’s dissent) to result in a finding of employee status than application of a strict right-to-control test.
Of course, there may be fact patterns more likely to result in a finding of independent contractor status under the nature-of-the-work test than under the right-to-control test and vice versa. The critical point, however, is not so much the labels that are applied to the tests employed for determining the employment status of workers for compensation purposes, but rather the underlying policy rationale that should govern. That rationale must be articulated with some degree of clarity if we are to offer adequate guidance to the bench and bar in applying any new standard.1 I believe that simply invoking Larson without describing how his test would address the fact pattern at hand does not fulfill that obligation.
This brings me to my second concern with Justice Durham’s reliance upon Larson’s treatise. Larson presumes that the policy justification underlying workers’ compensation is
that the cost of all industrial accidents should be borne by the customer as a part of the cost of the product. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection.
Larson, § 43.51. On the basis of that policy, Larson outlines a trend toward offering the protection of workers’ compensation insurance to an ever-increasing number of workers, many of whom would have been considered independent contractors under the common law master/servant analysis. This focus on the “beneficent” purposes of workers’ compensation, however, fails to acknowledge the increasing desire of employers to place themselves under the umbrella of the exclusive remedy provision of workers’ compensation and the concomitant desire of many workers to disassociate themselves from the “protection” of workers’ compensation remedies in exchange for the potentially more generous offerings of a traditional negligence action. The availability of contingent fee representation renders this latter avenue even more attractive for middle or lower class persons who, prior to the increasing prominence of such arrangements, could not afford legal representation at an hourly rate. Consequently, any reevaluation of the criteria for determining employee status should, as a part of its policy rationale, account for all of the incentives governing employers and workers rather than merely reciting the cost-shifting justification offered by Larson.
. In this regard, the examples of potentially defective applications of the right-to-control test offered by the dissent are not, in my view, very helpful. Justice Durham refers to "[lawyers], accountants, therapists, and numerous other professionals” who, she asserts, could be found to be employees of their clients under the right-to-control test, owing to "detailed instructions concerning the manner in which the tasks they have been retained to perform must be accomplished.” I do not believe the right-to-control standard transforms the traditional client-professional relationship into an employer-employee relationship. The right-to-control test must preserve the distinction between "supervisory” control (which entails a good deal more than simply directing the performance of a particular task) and mere contractual duty. I think that Justice Durham’s opinion underestimates the abilily of courts to draw such fundamental distinctions. Nevertheless, to the extent that Justice Durham alerts us to the increasing complexity of modem employment relationships, her point is well taken. There may well be a larger number of indi-cia which ought to be considered in these cases. Although I believe the right-to-control test often implicitly incorporates some of these indicia, such should not preclude a more careful and explicit elucidation of them by this Court at some time in the future.