Opinion
No. 2350 C.D. 2011
07-09-2012
Harry Babe, Jr., Petitioner v. Workers' Compensation Appeal Board (SCI Couriers), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Harry Babe, Jr. (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) denying the Claim Petition that Claimant filed against SCI Couriers (SCI). In his decision and order, the WCJ found that Claimant had failed to prove that he was an employee of SCI at the time of his injury. We affirm.
Claimant fell while delivering boxes as an airfreight courier for an affiliate of SCI on February 11, 2008, and suffered aggravation of pre-existent cervical disc degeneration and left hip degenerative arthritis. (WCJ Decision, Findings of Fact (F.F.) ¶3b, Reproduced Record (R.R.) at 86a; Hearing Transcript (H.T.) at 5-6, R.R. at 11a-12a; Exhibit D-1 Claimant Dep. at 6-10, R.R. at 44a- 48a.) It was stipulated by Claimant and SCI that Claimant has not fully recovered from these injuries but is capable of sedentary work. (F.F. ¶3a, R.R. at 86a.) The only issue disputed by the parties, before both the WCJ and this Court, is whether Claimant was in an employer/employee relationship with SCI or whether he was an independent contractor.
The only witness who testified in this matter by deposition or in person at the hearing was Claimant. Claimant described his job title as independent courier and testified that he had an independent contractor owner operator agreement with SCI. (Claim Petition at 2, R.R. at 5a; Exhibit D-1 Claimant Dep. at 6, 14-16, R.R. at 44a, 52a-54a; H.T. at 17-18, R.R. at 23a-24a.) Claimant owned his own delivery van for which he paid all maintenance and fuel. (F.F. ¶¶5, 6, R.R. at 87a-88a; Exhibit D-1 Claimant Dep. at 13-14, 20, 22-24, R.R. at 51a-52a, 58a, 60a-62a.) Claimant used his van for some deliveries and used larger trucks owned by the SCI affiliates for other deliveries, depending on the size of the delivery. (F.F. ¶5, R.R. at 87a; H.T. at 5-6, 12-13, 20-21, 28, R.R. at 11a-12a, 18a-19a, 26a-27a, 34a.)
Claimant was paid based on the deliveries he did, at a percentage of the fee paid by the customer, not based on the hours or days that he worked. (F.F. ¶5, R.R. at 87a; H.T. at 27, R.R. at 33a; Exhibit D-1 Claimant Dep. at 16, 18-19, R.R. at 54a, 56a-57a.) Claimant testified that he could select or reject delivery assignments. (F.F. ¶5, R.R. at 87a; Exhibit D-1 Claimant Dep. at 21, R.R. at 59a.) Claimant testified that he was told where the deliveries were to be made, but determined his own routes for the deliveries and that no one directed him on how to do his job. (F.F. ¶5, R.R. at 87a; H.T. at 20, R.R. at 26a; Exhibit D-1 Claimant Dep. at 19, 21, R.R. at 57a, 59a.) Claimant could hire and substitute others to perform his deliveries without obtaining approval from SCI, provided that the substitutes were licensed drivers and met the qualifications that Claimant was required to satisfy. (Exhibit D-1 Claimant Dep. Exhibit 1 ¶4, R.R. at 74a.) Claimant was permitted to accept delivery work from other companies, subject only to the requirement that the items in the delivery not violate legal restrictions or customer rules concerning mixing of products in a delivery, and Claimant testified that he did work for another company unrelated to SCI in the same period that he was doing his delivery work for SCI and its affiliates. (Exhibit D-1 Claimant Dep. Exhibit 1 ¶15, R.R. at 75a; H.T. at 7-8, R.R. at 13a-14a.)
Claimant's income from SCI was reported by SCI on a Form 1099. (F.F. ¶5, R.R. at 87a; H.T. at 23-24, R.R. at 29a-30a; Exhibit D-1 Claimant Dep. at 15, R.R. at 53a.) Claimant paid his own taxes directly, and, at Claimant's request, SCI put ten percent of its payments to him in escrow and disbursed that to him quarterly to pay taxes. (F.F. ¶5, R.R. at 87a; H.T. at 10-12, 23-25, R.R. at 16a-18a, 29a-31a; Exhibit D-1 Claimant Dep. at 21-22, R.R. at 59a-60a; Exhibit D-1 Claimant Dep. Exhibit 1 ¶5, R.R. at 74a.) Claimant paid for his own occupational accident insurance, disability insurance and medical insurance and had SCI deduct part of its payments to him to pay for these items. (F.F. ¶5, R.R. at 87a; H.T. at 11-12, 25, R.R. at 17a-18a, 31a; Exhibit D-1 Claimant Dep. at 19, R.R. at 57a; Exhibit D-1 Claimant Dep. Exhibit 1 ¶¶5, 6, R.R. at 74a.)
The WCJ concluded, based on Claimant's testimony, that SCI "did not control his hours of work, manage the way his job was performed or collect taxes, fees or provide insurance for the Claimant as they would for an employee." (F.F. ¶7, R.R. at 88a.) The WCJ, accordingly, found that Claimant was an independent contractor and not an employee of SCI and denied Claimant's Claim Petition. The Board affirmed, and this appeal followed.
Our review is limited to determining whether an error of law was committed, whether the WCJ's necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated. Universal Am-Can, Ltd. v. Workers' Compensation Appeal Board (Minteer), 563 Pa. 480, 486 n.2, 762 A.2d 328, 331 n.2 (2000); American Road Lines v. Workers' Compensation Appeal Board (Royal), 39 A.3d 603, 610 n.6 (Pa. Cmwlth. 2012).
A claimant must be an employee to be eligible to receive benefits under the Workers' Compensation Act (the Act). Section 301(a) of the Act, 77 P.S. §431; Section 103 of the Act, 77 P.S. §21; Section 104 of the Act, 77 P.S. §22; Universal Am-Can, Ltd. v. Workers' Compensation Appeal Board (Minteer), 563 Pa. 480, 485, 762 A.2d 328, 330 (2000); American Road Lines v. Workers' Compensation Appeal Board (Royal), 39 A.3d 603, 610 (Pa. Cmwlth. 2012); Guthrie v. Workers' Compensation Appeal Board (The Travelers' Club, Inc.), 854 A.2d 653, 661 (Pa. Cmwlth. 2004). "An independent contractor is not entitled to benefits because of the absence of a master/servant relationship. Thus, employee or independent contractor status is a crucial threshold determination that must be made before granting workers' compensation benefits." Universal Am-Can, Ltd., 563 Pa. at 485, 762 A.2d at 330 (citations omitted). It is the claimant's burden to prove that he was an employee and not an independent contractor. Universal Am-Can, Ltd., 563 Pa. at 485, 762 A.2d at 330; American Road Lines, 39 A.3d at 610; Guthrie, 854 A.2d at 661.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. --------
Whether the claimant was an employee is a question of law based on the facts of the case. Universal Am-Can, Ltd., 563 Pa. at 486, 762 A.2d at 330-31; American Road Lines, 39 A.3d at 610; Guthrie, 854 A.2d at 661. The factors to consider in determining whether the claimant was an employee, rather than an independent contractor, include control over the work and the manner in which it was to be done, whether the claimant was responsible only for the result, which party supplied the tools or equipment, whether the claimant was paid by time worked or by jobs performed, who paid taxes and insurance, and whether the claimant was allowed to work for other unrelated companies at the same time. Universal Am-Can, Ltd., 563 Pa. at 489-90, 762 A.2d at 332-33; American Road Lines, 39 A.3d at 611; 3D Trucking Co. v. Workers' Compensation Appeal Board (Fine & Anthony Holdings International), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007); Guthrie, 854 A.2d at 661 n.13, 662-63 & n.16. The most important factor is who controls the work and the manner in which it is to be performed. Universal Am-Can, Ltd., 563 Pa. at 490, 762 A.2d at 333; American Road Lines, 39 A.3d at 611; Guthrie, 854 A.2d at 661 n.13.
Here, the WCJ correctly concluded that Claimant had not shown that he was an employee of SCI. Claimant's own testimony established that he, not SCI, determined and controlled how his work would be performed. Claimant testified that no one at SCI told him how to perform his job and that he was free to select or reject delivery assignments from SCI. Claimant could substitute other licensed drivers to perform his deliveries without obtaining approval from SCI and could do deliveries for other unaffiliated companies. In addition, Claimant was paid by the job, not on the basis of time worked, used his own equipment for deliveries unless a larger truck was required for delivery load, and paid his own taxes and insurance.
Stillman v. Workmen's Compensation Appeal Board (CBR Enterprises), 569 A.2d 983 (Pa. Cmwlth. 1990), relied on by Claimant, does not support his contention that he was an employee of SCI. In Stillman, the decedent was paid a weekly salary, the employer supplied all equipment and paid all expenses on the equipment used in the work, the decedent's business cards were in the name of the employer and the employer maintained workers' compensation covering decedent listing him as an employee. 569 A.2d at 984-87. There were no findings in Stillman that the decedent could reject assignments, work for other companies or substitute others to do his work and no finding that no one directed him how to perform his job. Rather, the only facts supporting independent contractor status were that decedent's title was independent contractor and that his taxes were paid as a non-employee. 569 A.2d at 984-86.
Accordingly, we affirm the order of the Board in this matter.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 9th day of July, 2012, the order of the Workers' Compensation Appeal Board in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge