Opinion
No. 2273 C.D. 2013
03-18-2015
Steven W. Gregory, Petitioner v. Workers' Compensation Appeal Board (Rusden, both individually and as General Partner of 2905 Frankford Avenue, L.P. and Uninsured Employers Guaranty Fund), Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Steven W. Gregory (Claimant) petitions this Court for review of the Workers' Compensation Appeal Board's (Board) November 19, 2013 order affirming the Workers' Compensation Judge's (WCJ) decision denying Claimant's claim petition. The sole issue for this Court's review is whether Claimant was an independent contractor at the time he sustained his injuries. After review, we affirm.
On June 6, 2011, Claimant filed claim petitions seeking partial disability, medical and specific loss benefits and counsel fees from 2905 Frankford Avenue, L.P. (2905 Frankford Avenue) and William Rusden, individually and as general partner of 2905 Frankford Avenue, L.P. (Rusden), for a fractured right wrist and left hand, and index and ring finger lacerations he sustained when he fell from a ladder while working at 2905 Frankford Avenue on June 4, 2008. Therein, Claimant reported that his job was: "Main carpenter, supervised all of the other carpenters on the job." Certified Record (C.R.), 6/6/11 Claim Petitions at 1. Rusden and 2905 Frankford Avenue denied the claim petitions on the basis that Claimant was not an employee. On July 29, 2011, Claimant also filed claim petitions for benefits from the Uninsured Employer Guaranty Fund (Fund) alleging that 2905 Frankford Avenue and Rusden did not carry workers' compensation insurance. C.R., 7/29/11 Claim Petitions at 1. The Fund denied those claim petitions.
Claimant originally filed claim petitions on June 2, 2010. They were withdrawn without prejudice because he was in jail and could not attend the hearings.
The Department of Labor and Industry's Bureau of Workers' Compensation rejected Claimant's claim petitions filed on May 31, 2011 because they were in an incorrect format or form. Moreover, the Bureau denied the Uninsured Employer Guaranty Fund's motion to dismiss Claimant's claim petitions because they were filed beyond the threeyear statute of limitations.
After a September 12, 2011 hearing, the WCJ bifurcated the liability portion of the case from the benefits portion. He further ordered the parties to present evidence and fact witnesses at an October 19, 2011 hearing solely on the issue of whether Claimant was an employee at the time of his injury. On February 29, 2012, the WCJ issued a decision and order denying and dismissing Claimant's claim petitions. Claimant appealed to the Board. By November 19, 2013 order, the Board affirmed the WCJ's decision. Claimant appealed to this Court.
"This Court's review is limited to whether there was a violation of constitutional rights or error of law, and whether necessary findings of fact were supported by substantial evidence." Am. Road Lines v. Workers' Comp. Appeal Bd. (Royal), 39 A.3d 603, 610 n.6 (Pa. Cmwlth. 2012).
Claimant argues that the Board erred by affirming the WCJ's determination that Claimant was an independent contractor at the time of his injury. Specifically, Claimant avers that he performs work for Rusden in the regular course of Rusden's rental, repair and maintenance of its rental properties and is paid by the day, thus he is neither an independent contractor nor a casual employee.
"To be eligible for workmen's compensation benefits, Claimant must first prove that he was injured while in an employee-employer relationship." Haines v. Workmen's Comp. Appeal Bd. (Clearfield Cnty.), 606 A.2d 571, 572 (Pa. Cmwlth. 1992). Section 104 of the Workers' Compensation Act (Act) provides, in pertinent part:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 22.
The term 'employe,' as used in this act is declared to be synonymous with servant, and includes--77 P.S. § 22. "Under the Act, an independent contractor is not an 'employee' entitled to compensation." Straight Line Exp. v. Workmen's Comp. Appeal Bd. (Packer), 654 A.2d 649, 651 (Pa. Cmwlth. 1995). The Pennsylvania Supreme Court has declared:
All natural persons who perform services for another for a valuable consideration, exclusive of . . . persons whose employment is casual in character and not in the regular course of the business of the employer . . . .
In determining employee or independent contractor status, certain criteria have come to serve as guideposts for the reviewing tribunal. Both parties correctly point to this court's decision in Hammermill Paper Company v. Rust Engineering Company, . . . 243 A.2d 389, 392 ([Pa.] 1968), as setting forth the relevant factors in undertaking this analysis.
In Hammermill Paper, this court set forth the following indicia to be considered when determining employee/independent contractor status:
While no hard and fast rule exists to determine whether a particular relationship is that of employer-employee or owner-independent contractor, certain guidelines have been established and certain factors are required to be taken into consideration:
'Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one is engaged in a distinct occupation or business; which party supplied the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer, and also the right to terminate the employment at any time.'
Universal Am-Can, Ltd. v. Workers' Comp. Appeal Bd. (Minteer), 762 A.2d 328, 332-33 (Pa. 2000) (citations omitted; bold emphasis added); see also Am. Road Lines v. Workers' Comp. Appeal Bd. (Royal), 39 A.3d 603 (Pa. Cmwlth. 2012). "The existence of an employment relationship is a question of law which must be resolved on the particular facts of each case." Haines, 606 A.2d at 573.
Hammermill Paper, 243 A.2d at 392.
Whether some or all of these factors exist in any given situation is not controlling. Further, while each factor is relevant, there are certain guidelines that have been elevated to be dominant considerations. . . . [C]ontrol over the work to be completed and the manner in which it is to be performed are the primary factors in determining employee status. Moreover, it is the existence of the right to control that is significant, irrespective of whether the control is actually exercised.
The facts underlying Claimant's claims are largely undisputed. At the September 12, 2011 hearing, Claimant testified that he had been renting a room on a weekly basis from Rusden for approximately six to eight months prior to his injury. During that time, he had been working for Tim Ferretti (Ferretti) as a carpenter. In approximately April of 2008, after Claimant confided to Rusden that his work "was slow" because Ferretti had not called him, Rusden hired Claimant to rake leaves with him in the mountains for two days. Reproduced Record (R.R.) at 34a. Claimant observed Rusden drop flyers at a gated community in the mountains advertising that Rusden did yard work for hire. Rusden paid Claimant $75.00 for each five to six-hour work day.
According to Claimant, Ferretti paid him $200.00 cash per day until June 4, 2008. Due to weather conditions or lack of work, there were approximately two or three days per month that Ferretti had no work for Claimant. Claimant returned to work for Ferretti after his injury, but at a reduced income (i.e., $150.00/day) due to limitations purportedly caused by Claimant's June 4, 2008 injuries.
Claimant next worked for Rusden on June 4, 2008. Claimant recounted that Rusden instructed him to construct walls and doors at three of Rusden's rental properties in order to make large rooms into smaller ones. Claimant stated that, at each of the first two locations, Rusden worked with Claimant handing him metal studs. He recalled that "Ricky," another Rusden tenant, moved furniture and cleaned up at each property. Claimant explained that after they reached the third location - 2905 Frankford Avenue - Rusden received a telephone call and had to leave. Claimant testified that due to the high ceilings at that location, Rusden retrieved and set up a ladder for Claimant's use before he left.
Claimant recalled that when he was almost finished with that job, he reached for something and the ladder's left legs became unstable, causing him to lose his balance. He described grabbing a metal stud in order to maintain his balance, but instead he cut his left hand and then fell from the ladder onto his right hand which fractured. He reported his injury to "Joe, the guy that's the head of the house." R.R. at 42a. Joe took Claimant to the hospital where his left hand was stitched, and two weeks later, he underwent right hand surgery. Claimant asserted that he "get[s] $25[.00] an hour" in cash for his carpentry work and, although Rusden agreed to pay him that amount for his June 4, 2008 work, Claimant "never got paid." R.R. at 46a. However, Claimant admitted that Rusden did not collect rent from him during the couple of months he did not work following the accident. He acknowledged that at the time of his accident, he had no specific Rusden jobs lined up after the 2905 Frankford Avenue wall installation.
At the October 19, 2011 hearing limited to the issue of whether Claimant was an employee, Rusden testified that he has been employed full-time as a Philadelphia police officer for approximately 15 years. He stated that in 2008 he worked the 11:00 p.m. to 7:00 a.m. shift. Rusden reported that he holds interests in several rental properties, including the three where Claimant worked on June 4, 2008. Rusden pronounced that he is not a carpenter. When work is needed on his properties, he hires the necessary people to do it. He described that although he installed replacement windows prior to becoming a police officer, that work differed from the work Claimant performed on June 4, 2008.
Rusden explained that the June 4, 2008 job came about as a result of Claimant informing him that he was a carpenter and asking if there were jobs he could do for Rusden. While he had intended to install walls at the three properties so he could increase the number of rooms available, he did not have a particular timeframe in mind, "but as a couple of weeks went by[, Claimant] asked me again and I basically put it together." R.R. at 102a. Rusden maintained that due to Claimant's particular carpentry skills and because Claimant was behind on the rent, Rusden offered him the job as payment toward the rent balance due. Rusden deemed Claimant's work on June 4, 2008 an "odd job" for which he agreed to pay Claimant $75.00 per day. R.R. at 102a. Rusden avowed that neither he nor 2905 Frankford Avenue has employees. He explained that his tenant and friend Joe collects weekly rents at Rusden's properties, without being paid to do it. He also stated that Ricky is a tenant and friend who helps him clean the properties and paint them when necessary.
Rusden admitted that he worked with Claimant at the first two properties on June 4, 2008, but left Claimant at the third property so he could sleep before his night shift. Rusden testified that although he supplied the ladder, and the materials for the jobs, Claimant brought and used his own tools. Rusden described that at each location, he told Claimant where to put the wall, and if Claimant asked for something, Rusden handed it to him. Before he left the third property, the only instruction he gave Claimant was to clean up.
Rusden stated that he did not intend to hire Claimant after June 4, 2008 because he did not have a business, he did not have additional work of that nature for Claimant to perform, and he was not impressed with Claimant's carpentry work that day. Rusden claimed that he specifically told Claimant that Rusden would finish the remaining work on a different day. He admitted that Claimant did not pay rent to Rusden for "a little over a year" after the accident and then moved out. R.R. at 105a-106a. He further maintained that he gave Claimant money after the accident because "[h]e needed to eat." R.R. at 106a.
Rusden asserted that although he would not hire Claimant for carpentry work, he did not have a problem hiring him to rake leaves in the mountains. Rusden recalled that Claimant did the raking in the mountains with him within the nine or ten months after June 4, 2008, and that Claimant was wearing a brace on his hand. They worked one day at Rusden's property, and the other day for hire at someone else's property. He paid Claimant $75.00 for each day.
Claimant countered that he worked with Rusden in the mountains prior to his injury. He had a cast on his hand for some time and, thereafter, was in physical therapy until October 28, 2008. He contended that although he returned to work with Ferretti in November 2008, the screws in his wrist limited his movement, and he would have difficulty raking at that point.
The law is well established that "[t]he WCJ is the ultimate factfinder and has exclusive province over questions of credibility and evidentiary weight." Univ. of Pa. v. Workers' Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth. 2011). "The WCJ, therefore, is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses." Griffiths v. Workers' Comp. Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000).
Here, the WCJ held that Claimant and Rusden's testimony supported that Claimant was an independent contractor and, where their testimony conflicted, he deemed Rusden more credible than Claimant. Based upon the evidence in this case, the WCJ specifically found:
a. Claimant consistently testified as if he had a carpentry business. For example, he testified, 'I was slow [for work] . . . I told him I'm a carpenter.' (N.T. 9/12/11 p. 17). He told [Rusden] that his rate for carpentry work was $25 an hour, and that he quoted him an hourly rate because he was not sure how long the job would last. Claimant listed on every claim petition he has filed for 'job title at the time of injury' that he is a 'Main Carpenter.'
b. Claimant was paid by the day. [Rusden] testified that he agreed to pay Claimant $75 a day. This testimony is accepted as more credible than the testimony of Claimant (both of whom appeared before this WCJ for live testimony).
c. [Rusden] did not supervise Claimant's work at 2905 Frankford Avenue. In fact, [Rusden] left the property. [Rusden] did not supervise Claimant's work, but relied upon Claimant's skills and expertise as a carpenter. Claimant admitted that [Rusden] hired him to work on the rental properties because he 'had the skills' of a 'carpenter.' (N.T. 9/12/11 at p. 39). Claimant agreed that [Rusden] is not a carpenter, but rather only had knowledge of installing windows. (Id. at 45). [Rusden] credibly testified that he was not a carpenter, and did not have the skills of a carpenter. (N.T. 10/19/11 at p. 7). [Rusden] credibly testified that although he performed some 'simple jobs' on the rental properties, he really did not do any repairs himself. If the jobs were more complicated, [Rusden] would hire someone to do it. For example, he testified that
'If it needs a roof, I hire a roofer; if I need an electrician; I need to hire an electrician, so I wouldn't be the only one doing the repairs.' (N.T. 10/19/11 at 22). [Rusden] credibly testified, 'I'm not a carpenter.' (Id. at 23). Rather, he credibly testified that he hired Claimant who professed to being a carpenter.
d. [Rusden] did not control the specific manner in which Claimant's work was to be performed, but instead directed him only as to the particular task to be done. For example, Claimant testified that [Rusden] directed him that he 'want[ed] the wall here, I want a door here.' (N.T. 9/12/11 at p. 23). At the property where Claimant was injured, 2905 Frankford Avenue, [Rusden] simply retrieved a ladder for Claimant and 'told me what to do' and then [Rusden] left the property for Claimant to finish the work. (N.T. 9/12/11 p. 24).
e. Although [Rusden] had gone to the hardware store to get the material, Claimant provided his own tools to perform the work. Claimant testified he noticed that the left-hand side of the ladder was broken the next day, when he went back 'to get my tools and I looked at it.' (Id. at 24). [Rusden] credibly testified that Claimant brought his own tools with him. (N.T. 10/19/11 p. 15).
f. Claimant was not on a particular schedule and at the 2905 property, Claimant worked at his own pace. Moreover, as of June 4, 2008, Claimant testified, he was also working for [Ferretti] earning $200 a day. (N.T. 9/12/11 at p. 26, 40). However, as it was slow, he worked for [Rusden] on June 4, 2008.
g. The work was casual. Claimant testified that [Rusden] told him, 'I got a day's work for you, putting metal studs up in three houses.' (N.T. 9/12/11 at p. 61). Claimant worked for [Rusden] a total of three days, over a period of about three months (testifying he worked in the Poconos for two separate days[,] weeks apart sometime around April). (N.T. 9/12/11 p. 39, 60). After Claimant
completed his work on June 4, 2008, Claimant did not have any more jobs to perform for [Rusden]. (Id. at 44). Other than the June 4, 2008 day of work, Claimant had no idea whether he would have been given more work by [Rusden] for more jobs. (Id. at 52).WCJ Dec. at 4-5. Based upon the above findings, the WCJ concluded that Claimant was an independent contractor. The WCJ further stated: "[S]hould an appellate court determine an error in this conclusion of law and find Claimant was an employee, the [WCJ] finds and concludes that Claimant is excluded under the Act as a 'casual employee' under Section 104 of the Act." WCJ Dec. at 8.
Neither the Board nor the Court may reweigh the evidence or the WCJ's credibility determinations. Sell v. Workers' Comp. Appeal Bd. (LNP Eng'g), 771 A.2d 1246 (Pa. 2001). This Court has stated: "[I]t is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made." Lahr Mech. v. Workers' Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa. Cmwlth. 2007) (quoting Minicozzi v. Workers' Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005)).
The Board affirmed the WCJ's decision denying Claimant's claim petition because the testimony fully supported the WCJ's determination that Claimant was an independent contractor at the time of his injury. Since this Court may not reweigh the evidence or the WCJ's credibility determinations, and because the record evidence supports the WCJ's conclusion, we hold that the Board did not err by affirming the WCJ's determination. Accordingly, we affirm the Board's order.
Because the Board affirmed the WCJ's determination that Claimant was an independent contractor and not an employee, it did not address Claimant's casual employment argument. --------
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 18th day of March, 2015, the Workers' Compensation Appeal Board's November 19, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge