The appellant appeals the compensation judge’s finding that he was an independent contractor and therefore was not an employee of Menard, Inc.  We affirm.

Ray Wheeler, the appellant, entered into a delivery service contract with Menard Inc., which was insured for workers’ compensation liability by Zurich North America, collectively the respondents, to perform delivery services using and driving his own truck while hauling a trailer owned by Menard.  The contract was a standard form written agreement created by and for Menard, Inc., between haulers and Menard.  The agreement stated that appellant, the hauler, is an independent contractor, and “nothing in this Agreement shall be construed as creating an employer-employee relationship between Menard and Hauler.”^[1]  In the agreement, the hauler’s compensation was determined by a zone mileage charge and fuel cost surcharges.  Menard also paid handling charges that were outlined in the written agreement.  Bonuses were available and were tied to the net selling price of the products delivered.  The hauler was responsible for providing necessary insurance coverage, including workers’ compensation insurance for any employees, motor vehicle insurance, general liability insurance, and cargo insurance.  The appellant and a Menard manager also signed a waiver of workers’ compensation coverage.^[2]

The hauler was required to complete every delivery as soon as possible within normal business hours on the day that Menard notified hauler that a delivery job had been allocated to hauler, and all deliveries had to be made only during the normal store hours of Menard.  The appellant testified that he hired a driver to help him with deliveries, and that he provided workers’ compensation coverage for that employee.  He declined workers’ compensation coverage for himself.^[3]

The contract required the hauler to acquire a truck that would haul a trailer owned by Menard.  The truck used to haul a Menard trailer was expected to meet the “recommended vehicle requirements” set out in the agreement, including truck model and year.  After reviewing the contract with a Menard representative, the appellant signed the agreement and purchased a truck within the recommended vehicle requirements for hauling, model, and year, but not the recommended color.  The agreement also required the hauler to have a sign on the truck with his business name and phone number on it and identifying that the delivery service was operated by the hauler.  The appellant testified that he was required to make deliveries during inclement weather and when the trailer was overweight, but he also testified that he had refused to deliver loads during such circumstances without any negative consequences from Menard.^[4]

The agreement allowed the appellant to subcontract deliveries under the terms of the agreement with written authorization from Menard and submission of employment and background information on any employees hired by the hauler.  The appellant also agreed that any driver or helpers making deliveries would wear clean uniforms labeled with the person’s name and the name of the delivery service.

On April 30, 2009, the appellant sustained a broken clavicle while delivering Menard products to a Menard customer.  On March 5, 2010, the appellant filed a claim petition alleging that he had sustained that injury as an employee of Menard Inc.  The respondents denied an employment relationship with the appellant.  A hearing was held on December 14, 2010.  The compensation judge found that the appellant was an independent contractor on the date of injury, and denied the claim.  This appeal followed.

The appellant argues that the Workers' Compensation Court of Appeals may review the issue on appeal, whether the appellant was an independent contractor, de novo as a question of law.  The Minnesota Supreme Court has stated that “the determination of employment status is, ultimately, a legal one.”^[5]  A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which this court may consider de novo.^[6]  This court has clarified, however, that in a case “with facts which might fit a particular work situation into more than one of the criteria, or where a criterion is partially met, the compensation judge must weigh those facts and the credibility of the witnesses to make the final determination.”^[7]  The court has also noted that “[i]n such a case, the compensation judge's determination must be given the deference reserved for factfinders under this court's standard of review.”^[8]  Under that standard, this court must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”^[9]  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”^[10]

Independent contractors are statutorily exempt from coverage under the Minnesota Workers’ Compensation Act.^[11]  The compensation judge found that the appellant was an independent contractor at the time of his injury on April 30, 2009, not an employee of Menard, and therefore his injury was not compensable.  The appellant asserts that Menard’s extensive control on the manner in which the appellant performed his delivery duties created an employer-employee relationship between the parties in spite of the written contract to the contrary.  The respondents assert that the evidence on record supports the findings by the compensation judge that the appellant, not Menard, had substantial control over his work under the contract, and therefore, was an independent contractor on the date of injury.  The respondents further contend the compensation judge applied the proper law to the facts of this case.

In determining whether a petitioner is an employee or an independent contractor, traditionally the factors considered were the right to control the means and manner of performance, the mode of payment, the furnishing of material or tools, the control of the premises where the work is done, and the right of the employer to discharge.^[12]  Criteria listed in Minnesota Rules for specific occupations are derivative of this traditional five-factor analysis.^[13]  “Furthermore, the fundamental test of employment is the right, not just the exercise, of the employer to control the details of the work.”^[14]

The compensation judge determined that the appellant was an independent contractor by applying the factors listed in Minn. Stat. § 176.043,^[15] which was effective August 1, 2009.  The appellant was injured on April 30, 2009, before Minn. Stat. § 176.043 became effective.  Minn. R. 5224.0290^[16] was in effect on the date of injury^[17] and therefore is the appropriate rule to analyze whether the appellant was an independent contractor or an employee of Menard on April 30, 2009.

The appellant argues that Minn. R. 5224.0290 is not applicable in this case based on the wording of the rule.  The rule refers to an owner-operator of a truck, tractor, or truck-tractor, and one of the factors listed is that the individual owns the equipment or holds it under a bona-fide lease arrangement.  The appellant argues that the critical equipment in this case is the trailer, which is owned by Menard, and not the truck, which is owned by the appellant, and since the rule does not discuss ownership and control of the trailer, it is not applicable to this situation.  Therefore, the appellant claims that Minn. R. 5224.0320 regarding general criteria for nonspecified occupations, as listed in Minn. R. 5224.0330 and 5224.0340 should apply.^[18]  We disagree.  Minn. R. 5224.0290 clearly applies to truck owner-drivers or operators of trucks, tractors, or truck-tractors without regard to ownership of the trailers being hauled by those vehicles.

The factors listed in Minn. R. 5224.0290 are very similar to the factors listed in Minn. Stat. § 176.043.  The factors to be considered when classifying a relationship as an independent contractor under the workers’ compensation act include ownership and maintenance of the equipment, responsibility for operating costs and supplying the necessary personal services to operate the equipment, compensation based on factors related to the work performed and not on the basis of the hours or time expended, determination of the details and means of performing the services, and a contract that specifies the relationship to be that of an independent contractor and not that of an employee.  Both Minn. R. 5224.0290 and Minn. Stat. § 176.043 require that each of the factors be present in order for the individual operator to be considered an independent contractor.  The compensation judge analyzed the appropriate factors in determining whether the appellant was an independent contractor or an employee of Menard.

In general, a truck owner-driver is any individual who owns or holds a vehicle and who leases that vehicle together with driver services to a business which transports freight for-hire or transfers freight for a private motor carrier.^[19]  Under Minn. R. 5224.0290, a truck owner-driver will be classified as an independent contractor when performing services in the operation of his truck when certain factors are present in the execution of the agreement that create an independent contractor relationship.  In this case, the appellant purchased a truck within the recommended vehicle requirements for hauling, model, and year, but not the recommended color.  The appellant was the truck owner and driver transporting and delivering products for Menard.  He was responsible for maintenance and repair of the truck, and was responsible for all operating costs for diesel fuel charges, oil changes, services, and purchases for truck parts regardless of the designated driver.  The appellant was not paid by the hour, but was paid according to the contract under a zone mileage charge plus fuel cost surcharges and handling charges.  The appellant also hired a driver to help him with deliveries using his truck, and provided the driver with workers’ compensation coverage.  The appellant signed a waiver of workers’ compensation coverage, which stated that any injuries to himself or to any of his employees while performing services under the delivery service agreement would not be covered under any workers’ compensation insurance policy held by Menard.  The appellant’s delivery service contract with Menard specifically stated that he was an independent contractor.

The appellant claims that the compensation judge erred by finding that he controlled the means of performing the work required under the contract.  He first argues that Menard had extensive control over the means of performing the services under the contract since Menard supplied the trailer, determined the cargo, required delivery during certain hours, and required a uniform.  The compensation judge noted in her memorandum that the contract requirements to deliver products during Menard’s normal business hours and to place those delivered products in locations directed by the customer are not evidence of substantial control by Menard to classify the relationship as employer-employee.  Likewise, the judge noted that Menard’s dress code was essentially a general requirement to “make explicit the basic expectation of all business relationships - that work be done during a reasonable time frame in a reasonably professional way.”^[20]  The compensation judge reasonably considered those contract requirements as conditions that define and explain expectations of the parties in most business relationships and are not exclusive to an employer-employee relationship.

The appellant also argues that the non-compete clause included in his contract indicates control by Menard.  The compensation judge noted that the non-compete clause only limited the appellant’s ability to drive for Menard competitors.  Employers often require their employees to execute employment agreements that contain covenants not to compete.  However, the appellant testified that his driving was limited to delivery services for Menard because he did not know anyone else who was interested in delivery services.  The non-compete clause was not unduly burdensome on the appellant’s right to earn a living and this court is reluctant to find the restriction to be confirmation of an employer-employee relationship.

Further, Menard did not exercise any control over how the appellant’s truck got to the delivery site; he chose his own route.  The appellant was able to refuse to make deliveries without any consequences from Menard.  Menard also exercised no control over the change of drivers performing delivery services for Menard.  Overall, the appellant controlled the means and manner of performing services by providing his own truck, paying truck operating costs, exercising his right to accept or reject a delivery job, choosing his own delivery routes, and hiring his own drivers.  All these factors create a relationship of an independent contractor with Menard.  Substantial evidence supports the compensation judge’s finding that the employee controlled the means of performing the work required under the contract.

We recognize contract or waiver provisions that classify a relationship as an independent contractor and deny an employer-employee relationship, standing alone, are not conclusive evidence to establish an independent contractor relationship between the appellant and Menard.  In this case, the compensation judge properly analyzed the relationship using the owner-operator’s truck as the essential piece of equipment contemplated under the delivery service contract.  The appellant is a truck owner-driver who operates his own truck to deliver Menard’s products.  The transport and delivery of goods is performed by operation of the appellant’s truck pulling a Menard’s trailer.  The compensation judge made findings on the factors used to determine whether a truck owner-driver was an independent contractor and not an employee.  Substantial evidence supports all of the compensation judge’s findings.  We conclude that the compensation judge considered the appropriate factors to reach her conclusion and affirm her decision that the appellant was an independent contractor at the time of the April 30, 2009, injury.