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Legal Eagles

Help For The Injured Drummer

I was talking to my good friend Art Benson from Dynamic Percussion (dynamicpercussion.com) the other day, and he told me a story that would strike fear in the heart of any drummer. He talked about how he slipped a disc in his back a few years ago, and as a result, he wasn’t able to play for years. Drumming is Art’s life, so I understood the frustration he must have felt. DRUM! also understands the gravity of the incredibly physical aspect of our #1 passion, and that is why every month we publish a “Health Tips” column by Luga Podesta, M.D. offering tips on how to avoid injury.

But what happens when a working drummer is injured while on the job? Out in the 9–to–5 working world, employers are required by law to carry workers’ compensation insurance, which steps in if an employee is hurt while on the job and makes payments so that the employee is able to keep his head above water until he’s able to return to work.

So what rights do injured drummers have? Let’s assume Skid Row has decided to do the “reunion tour” thing, but original drummer Rob Affuso isn’t interested in doing the tour. The band hires Virgil Donati to drum for the tour, and he signs a contract stating that he is an independent contractor working with the band for the duration of the tour. The contract specifically states that he is not an employee. While on stage, Donati hyper-extends his elbow and isn’t able to finish the tour or work for the next four months. Is he out of luck because he is not an employee, or can he seek workers’ comp benefits?

The answer isn’t clear, because in an instance like this, workers’ compensation commissioners will apply different tests to determine if Donati was an independent contractor, or if he was, in fact, an employee. The tests determine 1) who had control over how the work was performed, 2) who supplied the equipment used by the injured worker, 3) who has the right to discharge the injured worker, and 4) who has control over the hours worked?

Applying the tests to the hypothetical above, 1) Skid Row would clearly instruct Donati on how the job is done, 2) Donati would likely bring his own kit to the gig, 3) Skid Row likely retained the right to fire Donati if the quality of his work dropped or if he didn’t show up for work, and 4) Skid Row would control the hours, as Donati would work according to the tour itinerary. In applying these tests, it appears that Donati is more of an employee than an independent contractor.

Consequently, it is very possible that a commissioner could find this and award workers’ compensation benefits to Donati, and if Skid Row doesn’t have this insurance, it would come out of the band’s pockets.

The law doesn’t always enforce contracts if they aren’t viewed as equitable to all parties involved, so just because your contract states you’re an independent contractor doesn’t guarantee that it is set in stone.

This article is not intended as legal advice. If you have specific legal concerns, I recommend that you personally contact an attorney.

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