dissenting.
I disagree with the majority's conclusion that McFarland was an employee of Expressway Dodge and therefore respectfully dissent from the decision to affirm the Worker's Compensation Board's determination.
I note at the outset that I agree entirely with the majority's discussion of the law applicable to this case. In particular, I agree that we should resort to the Restatement test in order to determine whether McFarland was an employee or an independent contractor,. In my view, however, the outcome in this case is the same regardless of which test is applied: McFarland was not an employee. Therefore, my departure with my colleagues lay not in which test should be applied, but in the proper balancing of the factors set out in that test.
In reaching the conclusion that McFarland was an independent contractor, I am mindful that our supreme court has indicated that the factors to be considered do not represent a mathematical formula wherein factors cutting one way are measured against those cutting the other way. GKN Co. v. Magness, 744 N.E.2d 397 (Ind. 2001). Rather, the factors "must be weighed against each other as a part of a balancing test" and are not to be regarded as "a mathematical formula where the majority wins." Id. at 402. The court also indicated that when applying this evaluative method, we should give the greatest weight to the right of the employer to exercise control over the employee. Id.
Looking first at the factors other than control, I do not perceive a balance that would weigh in favor of a determination that McFarland was an employee. Therefore, the matter of control over the work, already identified as the single most important consideration by our supreme court, takes on even more importance in this case. The facts relevant to control reveal that Expressway occasionally contacted McFarland when it needed to move a vehicle from one location to another. Although perhaps not entirely relevant to the issue of control, I note that McFarland was always free to decline the offer and would have suffered no adverse consequences if he chose to do so. In any event, after he accepted a job, MceFarland was instructed only to take the vehicle from one place to another. He was not told the manner in which to drive, the route to take, or even when he should leave. The largely unfettered discretion enjoyed by McFarland in these control aspects of his relationship with Expressway indicate to me that McFarland was not an employee of Expressway, but rather an independent contractor. This is especially so in view of the relatively even balance existing among the other factors to be considered.
I would reverse the Board and hold that McFarland was not an employee of Expressway.