DATE OF JUDGMENT: 06/11/2014.
APPEALED: COMMISSION. TRIBUNAL FROM WHICH
MISSISSIPPI WORKERS' COMPENSATION.
FOR APPELLANT: M. W. ZUMMACH, GREGORY C. MORTON.
FOR APPELLEE: ROGEN K. CHHABRA, DARRYL MOSES GIBBS, CANDACE GREGORY MAYBERRY, ASHLEY LEKESHA HENDRICKS, BENJAMIN SETH THOMPSON.
BEFORE IRVING, P.J., BARNES AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE BWRITTEN OPINION. WILSON, J., NOT PARTICIPATING.
[¶1] Kevin Collins, a job applicant with Averitt Express Inc. (Averitt), injured his knee while performing a pre-employment job-function test during the hiring/orientation process. He filed a workers' compensation claim, but Averitt argued that Collins was not an employee and, therefore, not entitled to benefits.
[¶2] An administrative judge (AJ) with the Mississippi Workers' Compensation Commission ruled that Collins was entitled to benefits. Averitt filed an appeal with the full Commission, which affirmed the ruling. Averitt now appeals that ruling. We find no error and affirm the judgment granting Collins workers' compensation benefits for his injury.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
[¶3] Collins applied for a position as a truck driver with Averitt. On November 2, 2012, Averitt sent Collins a letter, informing him of the dates of his scheduled orientation. The letter further stated: " Your job offer is contingent upon your passing your physical, drug screen and road test." Collins's road test was scheduled for Sunday, November 4, 2012, one day
prior to the commencement of orientation. It was administered at Averitt's Cookeville, Tennessee facility by fleet manager Danny Smith. The road test consists of two phases: (1) the actual driving portion, which requires an applicant to demonstrate his driving proficiency and skill in the operation of a tractor-trailer vehicle; and (2) a job-function test, which requires an applicant physically to enter and exit the rear of a trailer in a specific manner. Collins was unable to perform the requirements of the job-function test, so he failed that portion of the road test.
[¶4] When Collins reported for orientation the next morning, Averitt informed him that it was rescinding the job offer due to his failure to pass the requirements of the road test. Collins explained that he had injured his knee attempting to enter and exit the trailer during the job function test. Averitt paid Collins a per diem of $75 for attending the first day of orientation, even though he did not attend the actual session, and mileage ($238.68). Averitt also referred Collins to an independent medical ...