SSR 61-61. PHYSICIAN -- PART-TIME SERVICES FOR INDUSTRIAL FIRM

D's widow filed application for survivor benefits for herself and her two

children on the earnings record of her deceased husband, D, a physician. D

had engaged in the private practice of medicine for many years and, in

addition, had performed medical services for the X Corporation, a firm

engaged in heavy industry, from January 1957 until his death in March

1961. Self-employment as a doctor of medicine is excluded from coverage

under the Social Security Act. However, services performed by a physician

as an employee are covered under the Act and the remuneration for such

services is creditable for benefit purposes. The amount of the benefits

payable to D's widow and children thus depends on whether D was an

employee of the X Corporation with regard to the services he performed for

it.

D's duties for the corporation consisted of performing routine employment

and re-employment examination of employees, as well as examining and

treating those company employees in need of medical attention, including

surgery needed as the result of an industrial accident. He worked a

regular 2-hour schedule each day, 6 days a week. D was required to adhere

to this schedule and was not at liberty to respond to an emergency arising

in his private practice during his working hours for the corporation. In

addition, he was on call at any time in case of emergency at the

corporation's plant. D performed his services on the corporation's

premises and used equipment and facilities furnished by the corporation.

He was paid a monthly salary for his services, was given written and oral

instructions in conformity with company policies and procedures, and was

also given instructions by the corporation's head physician, a full-time

employee of the corporation. In the event of a difference of opinion

between the two physicians, final decision and responsibility rested with

the head physician

ation.

He was paid a monthly salary for his services, was given written and oral

instructions in conformity with company policies and procedures, and was

also given instructions by the corporation's head physician, a full-time

employee of the corporation. In the event of a difference of opinion

between the two physicians, final decision and responsibility rested with

the head physician. D was required to submit written reports to the

corporation relative to employees' ailments or injuries, progress, and

final recovery. He was required to perform services personally and could

not engage assistants or arrange for a substitute for himself in event of

his inability to carry out his duties. Both the corporation and D had the

right to terminate the relationship at any time without either party

incurring any liability for breach of contract. The corporation extended

to D all of the rights and benefits enjoyed by its employees, such as

pensions, vacations, and sick pay.

Under section 210(j)(2) of the Social Security Act, the term "employee"

includes any individual who, under the usual common-law rules applicable

in determining the employer-employee relationship, has the status of an

employee. Whether an individual is an employee under such rules depends

upon the facts in each case. The guides for determining whether an

employer-employee relationship exists are found in Regulations No. 4, §

404.1004( c ). Generally, such a relationship exists where the person

for whom the services are performed has the right to control and direct

the individual who performs the services, not only as to the result to be

accomplished by the work but also as to the details and means by which the

result is accomplished.

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employer-employee relationship exists are found in Regulations No. 4, §

404.1004( c ). Generally, such a relationship exists where the person

for whom the services are performed has the right to control and direct

the individual who performs the services, not only as to the result to be

accomplished by the work but also as to the details and means by which the

result is accomplished.

Physicians who engage in the pursuit of an independent trade or business

in which they offer their services to the public are generally independent

contractors and not employees. However, if the requisite degree of control

and supervision exists between a physician and another, he is an employee

rather than an independent contractor with respect to any services

performed under such circumstances. Whether the requisite control exists

may be determined by the application of such factors as: (1) the degree to

which he has become integrated into the operating organization of the

person or firm for which the services are performed; (2) the substantial

nature, regularity, and continuity of his work for such person or firm;

(3) the authority vested in or reserved by such person or firm to require

compliance with established general policies; and (4) the degree to which

he has been accorded the rights and privileges which such person or firm

has created or established for his employees generally. These factors are

emphasized in determining what constitutes the requisite degree of control

since it is often difficult for the person or firm for which the services

are performed to supervise a physician in the performance of his services

because of the high degree of skill required by a physician and because

the methods by which he works are prescribed by the techniques and

standards of his profession.

emphasized in determining what constitutes the requisite degree of control

since it is often difficult for the person or firm for which the services

are performed to supervise a physician in the performance of his services

because of the high degree of skill required by a physician and because

the methods by which he works are prescribed by the techniques and

standards of his profession.

Generally, a physician engaged in the private practice of medicine who

also examines and treats employees of a company on a part-time basis is

not an employee of the company for social security purposes. See Willard Storage Battery Co. v. Carey , 103 F.Supp. 7 (a tax case),

and Clithero v. Folsom (U.S.D.C. E.D. Mo. 1958) C.C.H., Unemp. Ins.

Reports, vol. 1A Fed. para. 8425, (involving a claim for social security

benefits). In those cases, direct control and supervision were not

contemplated by the company as to the details and means by which the

physicians accomplished their work, and they were free to leave the

company's premises during working hours if an emergency case in their

private practice required their presence.

The facts in this case are distinguishable from those present in the Willard and Clithero cases. Here D was integrated into the

operating organization of the company; his services were of a substantial,

regular, and continuous nature; contemplation of an employer-employee

relationship is evidenced by the extension of employee benefits and

privileges to him by the company; and he was subject to the supervision of

the company's head physician, an acknowledged employee, as to the manner

in which his services were to be performed.

Accordingly, it is held that D, with respect to the services he

performed for the X Corporation on a part-time basis, was an employee of

the corporation. Therefore, the wages he received from the X Corporation

must be included in determining the entitlement of, and the amount of the

benefits payable to, his widow and two children.