The lyrics, “Come fly with me, come fly, come fly away” are instantly associated with Frank Sinatra (although, troublingly, the Michael Buble version appeared higher in my google search for a link to the lyrics). It is a little known fact* that the original version of the song was an ode to woodsmen and forestry workers and went something like this: “Come log with me, come log, come log away.”

In the original* lyric, Ol’ Blue Eyes invites a fellow logger to chop wood with him — not for him. That same distinction (with, not for) made all the difference in a recent court decision denying workers compensation benefits to a logger.

In 2013, logger James Chapman was cutting trees somewhere in Gallia County, Ohio. Chapman needed some help and asked James Green, another experienced logger, to cut down some of the trees at a rate of $80 a day. Green agreed.

Three days after embarking on this great adventure, a tree fell on Green. It is unclear whether anyone was around to hear it or whether it made a sound. Green hurt his neck, back, left hip, and head.

Green filed a workers’ comp claim, alleging that Chapman hired him and that the injury was incurred in the course of that employment. Ohio’s Bureau of Workers’ Compensation denied the claim, finding that Green was not an employee of Chapman. Green appealed and lost again.

Like other states, Ohio requires an employer-employee relationship for workers’ compensation coverage to be available. Ohio uses a Right to Control Test to determine whether someone is an employee or an independent contractor.  (Other states use other tests.)

Here, the court ruled that Chapman merely told Green which trees to chop down. Come chop with me, not for me.  Chapman didn’t tell Green how to cut down the trees or when to do it. Chapman didn’t supervise him either. Green was an experienced logger and was told at the outset that he was not being retained as an employee. He was being given a task — cut down those trees over there — and then it was up to Green to use his experience and judgment to determine how to accomplish that task. Those facts, the court ruled, are indicative of an independent contractor relationship, not employment.

Green’s workers’ compensation claim was therefore denied, which made Green sad, and which could have been the inspiration for Sinatra’s 1962 recording of “Pick Yourself Up.”**

*Not a fact.

**Also not a fact.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.