Opinion
No. 1150 C.D. 2013
11-13-2013
Konstatinos Bouikidis, Petitioner v. Workers' Compensation Appeal Board (St. Demetrios Greek Orthodox Church), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Konstatinos Bouikidis (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) reversing the decision of a Workers' Compensation Judge (WCJ) that had granted Claimant's claim petition for benefits under the Workers' Compensation Act (Act). We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1 - 1041.4, 2501 - 2708.
On July 15, 2009, Claimant filed a claim petition for benefits for injuries that he suffered on June 29, 2008, when he fell from a ladder to the ground while attempting to collect live doves in the banquet room of the St. Demetrios Greek Orthodox Church (Church) following a wedding ceremony. Claimant asserted that he was working maintenance/housekeeping for the Church at the time of the fall, and that he was also employed by Colonial Marble and Granite (Colonial) and as a satellite dish installer. The Church filed an answer to the petition denying all of the material allegations raised therein and hearings before the WCJ ensued.
Claimant testified that in August 2007, the Church hired his wife, Lira Veizaj (Wife), as an independent contractor to clean the Church's halls after events and that he was hired by the Church to perform maintenance at events. He stated that the Church paid Wife $500.00 by check per event and that he received $250.00 of this payment. He testified that the fee was not actually paid to him or Wife, but that the payment check was made out to Wife's son, Vasil Veizaj (Son), who, in turn, gave Claimant the money. Claimant stated that he set up chairs for events and that he cleaned up the Church hall and bathrooms, kitchen and bar, waxed the floors and changed the Church lamps following the events. He testified that he worked with Wife; that no one from the Church was present to supervise them; and that the Church's board president, Michael Vousdoukas (Vousdoukas), would inspect their work. He stated that after his fall, he woke up in the hospital with head injuries; a fractured left clavicle; four fractured ribs; and internal bleeding; and that he later had his spleen removed and his torn rotator cuff repaired through surgery. Claimant testified that Vousdoukas gave him $3,000.00 to help pay his mortgage after he was released from the hospital. Claimant stated that he also worked for his primary employer, Colonial, six days a week as a driver/installer earning $750.00 per week, but that he has not returned to work due to his injuries.
Dean Trevlyn, M.D. (Dr. Trevlyn), a board certified orthopedic surgeon, testified that he treated Claimant after the accident and that Claimant sustained a clavicle fracture that was completely displaced and comminuted and had not yet healed; an adhesive capsulitis of the left shoulder; and a possible rotator cuff tear. He stated that Claimant underwent surgery to repair the rotator cuff and an excision of the exostosis of the clavicle, and arthroscopic surgery to remove scar tissue to improve his shoulder range of motion. He testified that he discharged Claimant because no further surgeries would be helpful and that light exercises would maintain his movement and strength. Dr. Trevlyn opined that Claimant's injuries were related to his fall; that he had ongoing limitations related to his shoulder; and that he is unable to do a job that requires heavy lifting or sustained lifting over his head.
Charles Hummer, Jr., M.D. (Dr. Hummer), a board certified orthopedic surgeon, performed an independent medical evaluation and reviewed Claimant's records and opined that Claimant had a fracture of the left clavicle which was resolved and well healed, and a rotator cuff tear of the left shoulder which was status postop and healed. Dr. Hummer agreed with Dr. Trevlyn that Claimant has a 20pound weight restriction and that he would put some restrictions on Claimant's lower extremity and walking. He opined that Claimant did not require any additional treatment for his orthopedic injuries sustained in his fall.
Paraskevi Papadopoulos, the Church's secretary, testified that she would give the accountant the payroll and that he wrote the checks. She stated that Vousdoukas would check the halls after an event to make sure there was no damage so she could return the security deposit. She testified that Vousdoukas hired Wife and that she saw Claimant helping Wife with cleaning the halls. She stated that Wife and Claimant were not on the payroll and were never given a W-2 or 1099 form, but that the checks were written to Son and that he was never given a W-2 or 1099 form. She stated that following Claimant's accident, she saw other people working events with Wife such as Son and Claimant's mother.
Wife testified that Vousdoukas hired her to do maintenance work at the Church for $500.00 per week and that she was paid an additional $400.00 for cleaning the Church's hall after an event. She stated that Claimant helped her work during events in the hall and that Vousdoukas told her that Claimant could help her during events in the hall. She testified that she was paid by check made payable to Son and that Son now helps her work the events.
Son testified that his mother was paid for her maintenance work by check payable to him because he was the only one with a checking account and that he paid the bills. He stated that there was no documentation that any of the money paid to his mother for maintenance was paid to Claimant and that he never wrote a check from his bank account to Claimant.
Vousdoukas testified that he hired Wife to perform custodial services for the Church and that she was paid $500.00 weekly to keep the grounds, halls and school clean. He stated that Wife was paid by check made payable to Son and that neither were given a W-4, W-9, W-2 or a 1099 form. Vousdoukas testified that Wife was also paid a separate $500.00 or $450.00 fee for working at special events in the two Church halls. He stated that he did not supervise Wife performing her work, and that it was his understanding that she needed the help of Claimant, Son, Claimant's mother and others to clean the large Church hall because she was unable do so herself and that she paid each of them $80.00. Vousdoukas testified that he was the only person who could hire anyone and that he never hired Claimant; the Church never paid Claimant either by cash or check; the Church never gave Claimant a 1099 form; he never had any conversation about Claimant performing services for the Church; and that the payment made to Claimant after the accident was made out of good will and was not intended to be paid as wages.
With the exception of the medical experts, the WCJ found that all of the witnesses were generally incredible and found that Claimant was not a Church employee and that there was no employment relationship between the two. She found that the Church hired Wife as an independent contractor; that there was no control over the manner in which she performed her duties; and that Wife hired Claimant to assist her at events for $80.00 per event. The WCJ found that, at the time of his injury, the Church hall was under Wife's sole control and concluded that the Church was Claimant's statutory employer at the time of the accident making it responsible for the payment of workers' compensation benefits. Finding that Claimant had an average weekly wage of $750.00 based on his earnings at Colonial and at the Church, the WCJ issued an order granting Claimant's petition and awarding him $500.00 in weekly benefits and Employer appealed to the Board.
Section 302(b) of the Act states, in pertinent part:
Any employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of such employer's regular business entrusted to that employe or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employe or contractor, if primarily liable for the payment of such compensation, has secured the payment thereof as provided for in this act....77 P.S. §462.
In June 2011, Employer filed a petition to join Wife as an additional defendant and a petition to review Claimant's compensation benefits because the WCJ determined that the Church hired her as an independent contractor and that Claimant was her employee at the time of his injury so that she is primarily liable to Claimant for compensation benefits as his employer and liable to the Church under Section 302 for any amount paid by the Church to Claimant. In November 2011, the WCJ issued a decision dismissing the petitions under the doctrine of collateral estoppel and noted that the issues raised therein had been appealed and were being considered by the Board.
Citing Section 302(b) of the Act and Six L's Packing Company v. Workers' Compensation Appeal Board (Williamson), 615 Pa. 615, 44 A.3d 1148 (2012), the Board reversed, stating that it was Claimant's burden of proving that the Church was his statutory employer and that a statutory employer is liable for compensation benefits to a subcontractor's employees unless the subcontractor has workers' compensation coverage. The Board explained that while Claimant testified that the Church hired Wife as an independent contractor, he never asserted that he was his wife's employee. The Board noted that Claimant testified that the Church hired him as an employee to work with Wife and, while the WCJ found this testimony not credible, it supports the fact that Claimant was not asserting that he was employed by Wife and, therefore, he was not asserting that he was the Church's statutory employee under Section 302(b) of the Act.
The Board also found that assuming Claimant was the Church's statutory employee, he failed to meet his burden of proving that his direct employer, Wife, did not carry workers' compensation coverage thereby implicating coverage by the Church under Section 302(b). The Board noted that the record is devoid of any evidence regarding whether Wife carried workers' compensation coverage for her employees and, without such evidence, the Church was not required to provide coverage even if it is considered to be a statutory employer under Section 302(b). As a result, the Board reversed the WCJ's decision and Claimant filed this appeal.,
The Board also determined that Employer's joinder petition and review petition were moot because it reversed the WCJ's grant of Claimant's claim petition.
By Memorandum and Order dated October 1, 2013, this Court denied Claimant's supersedeas petition.
This Court's standard of review is limited to determining whether there has been a violation of constitutional rights, whether an error of law has been committed, or whether all necessary findings of fact made by the WCJ are supported by substantial evidence. Vandervort v. Workers' Compensation Appeal Board (City of Philadelphia), 899 A.2d 414, 417 n.5 (Pa. Cmwlth.), appeal denied, 590 Pa. 664, 911 A.2d 938 (2006).
Claimant argues that the Board erred in usurping the WCJ's role of fact-finder by rewriting the WCJ's credibility determinations by finding that Claimant did not assert the he was employed by his wife based on his testimony that was discredited by the WCJ. If he was not employed by Wife, then the Church could not be his statutory employer. As we explained:
Claimant also argues that the Board erred in finding that he did not sustain his burden of proving that Wife did not have workers' compensation insurance because the record shows that she was incapable of doing so and that remand is proper should this Court determine that he did, in fact, fail to carry his burden of proof in this regard. However, based upon our disposition of Claimant's first argument, we will not consider this claim.
Pursuant to [Sections 203 and 302 of the Act, 77 P.S. §§52, 462], which describe a statutory employer's legal obligations and privileges, certain entities, usually contractors, may be deemed statutory employers because the injured employee's direct employer, the subcontractor, failed to properly secure workers' compensation insurance. An entity's status as a "statutory employer" results in liability for workers' compensation insurance and, coextensively, provides immunity to the statutory employer from common law tort liability.Vandervort, 899 A.2d at 418. Thus, Section 302(b) "[r]equires the contractor, as the statutory employer, to be responsible for payment of workers' compensation benefits where the sub-contractor, or direct employer of the injured employee, does not have the proper insurance." Id. In Six L's Packing Company, the Supreme Court set forth the five elements that a claimant must establish to show that an entity is a statutory employer for purposes of Section 302(b) of the Act:
(1) the entity is under contract with an owner or one in position of an owner; (2) the entity occupies or is in
control of the premises [where the injury occurred]; (3) the entity entered into a subcontract; (4) the entity entrusted a part of its regular business to the subcontractor; and (5) the injured party is an employee of such subcontractor.Id. at 619, 44 A.3d at 1151 (citation omitted).
Section 203 of the Act states:
An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.
There is simply not substantial evidence proffered to establish that Claimant was Wife's employee before the Board; he only contended that he was an employee of the Church so that the fifth prong of the foregoing test is not met.
Moreover, Claimant did not establish the first prong and the Church cannot be a statutory employer under Section 302(b) because the Church owns the halls and did not retain any control over the manner in which they were to be cleaned. See Six L's Packing Company, 615 Pa. at 625-26, 632, 44 A.3d at 1155, 1159; McDonald v. Levinson Steel Co., 302 Pa. 287, 295-97, 153 A. 424, 427 (1930); Brooks v. Buckley & Banks, 291 Pa. 1, 4-5, 139 A. 379, 380-81 (1927); Vandervort, 899 A.2d at 420-21. --------
Accordingly, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 13th day of November, 2013, the order of the Workers' Compensation Appeal Board dated June 25, 2013, at No. A11-0324, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge