Opinion
No. 1176 C.D. 2011
05-23-2012
Abdullah Heard, Petitioner v. Workers' Compensation Appeal Board (KBS Trucking Inc., Uninsured Employers Guaranty Fund, and FedEx Trade Networks, Inc.), Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Abdullah Heard (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed the decision of the Workers' Compensation Judge (WCJ), which (1) denied a motion Claimant made in reliance upon our decision in Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981), through which Claimant sought benefits against KBS Trucking, Inc. (KBS), as putative employer; (2) denied the claim petition that Claimant filed against KBS; (3) denied the claim petition that Claimant filed against the Uninsured Employers Guaranty Fund (Fund); (4) denied as moot the Fund's petition for joinder of FedEx as an additional defendant; and (5) denied as moot the Fund's petition for physical examination of Claimant. We affirm the Board's order.
In Yellow Freight, we held that when a respondent fails to raise an affirmative defense to a claim, those defenses are waived. Relying upon Section 416 of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 821, we concluded in Yellow Freight that a respondent that has not filed an answer to a claim petition, without adequate excuse, is precluded from seeking to submit evidence on a factual issue set forth in the claim petition.
While working as a forklift operator on August 14, 2007, Claimant hit his head against a metal bar, which, Claimant alleged, caused injury to his upper back, neck, and left shoulder. Claimant never returned to work. On October 10, 2007, Claimant filed a claim petition against KBS, seeking total disability as of the date of his injury. When KBS did not file an answer to his claim petition, Claimant, during a November 26, 2007 hearing before the WCJ, moved to have the allegations in his claim petition deemed admitted as a matter of law, based upon our holding in Yellow Freight.
On February 14, 2008, Claimant filed a claim petition against the Fund, identical to the petition he filed against KBS. The Fund, unlike KBS, filed a timely response. Following certain testimony Claimant provided regarding the nature of his employment, the Fund moved to join FedEx as an additional employer. On August 6, 2008, the Fund filed a petition for physical examination of Claimant. The WCJ consolidated all of these petitions and the oral motion Claimant made under Yellow Freight. The WCJ conducted hearings, during which the WCJ received evidence regarding Claimant's employment and his alleged injury. The WCJ determined that Claimant's testimony regarding his employment relationship with KBS and FedEx was credible, but the WCJ rejected Claimant's testimony regarding his alleged injury and disability.
With regard to Claimant's relationship with KBS and FedEx, both of those entities offered evidence regarding the nature of Claimant's employment. The WCJ made numerous factual findings based on the credited testimony, and, based upon her factual findings, the WCJ concluded:
Claimant was an employee of FedEx Trade Networks. Although KBS Trucking paid Claimant, deducted taxes from his pay and provided workers' compensation insurance pursuant to the master agreement between KBS Trucking, Inc. and FedEx Trade Networks, it is the ability to control the employee's activities that is the most important consideration in determining whether an entity is a claimant's employer. FedEx Trade Networks had the ability to control Claimant's activities while he was at the FedEx location operating a FedEx-owned forklift. Therefore, FedEx Trade Networks was Claimant's Employer on August 14, 2007.Conclusion of Law # 2.
In addition to concluding that FedEx, rather than KBS, was Claimant's employer for workers' compensation purposes, the WCJ also concluded that Claimant failed to establish that he sustained a compensable injury. Moreover, the WCJ concluded that, although KBS did not file an answer to the claim petition and provided no excuse for that failure, KBS "raised a legal defense that Claimant was not an employee, and, therefore, was not injured in the course and scope of his employment with KBS[]." (Conclusion of Law no. 3.) Further, as indicated above, the Fund also asserted that FedEx, rather than KBS, was Claimant's employer for workers' compensation purposes. Based upon these legal conclusions, the WCJ denied the claim petitions against KBS and the Fund, and she dismissed the two remaining petitions as moot.
Claimant filed an appeal with the Board. In that appeal, Claimant challenged broadly the WCJ's factual findings numbers 7-12. In addition to simply referring to these factual findings, Claimant stated:
The [WCJ] erred as a matter of law in denying and dismissing Claimant's claim petition. The Claimant filed a claim petition against KBS Trucking on or about October 10, 2007 for an injury which took place on August 14, 2007. The assignment of petition was made on October 24, 2007. No timely answer was filed by the defendant and the claimant made a Yellow Freight motion that all of the allegations contained in the claim petition be deemed admitted. The defendant offered no defense for its failure to answer the claim petition and therefore the WCJ erred in denying the [claim petition].Claimant also challenged the WCJ's Conclusions of Law numbers 2 through 5 and 7. Claimant also asserted that had the Yellow Freight motion been granted, he would have been entitled to compensation. For that reason, Claimant requested that the order denying the claim petition be reversed.
The Board concluded that the WCJ did not err in denying Claimant's Yellow Freight motion. Further, the Board also concluded that the WCJ did not err with regard to her conclusion that FedEx, rather than KBS, was Claimant's employer. Claimant filed the present petition for review with this Court.
On appeal, Claimant raises the following issues: (1) whether the Board erred in concluding that the WCJ properly denied Claimant's Yellow Freight motion; (2) whether the Board erred in concluding that the WCJ correctly determined that FedEx, rather than KBS, was Claimant's employer; and (3) whether the WCJ erred in dismissing Claimant's claim petition.
Our standard of review in a workers' compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. We acknowledge our Supreme Court's decision in Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), wherein the Court held that "review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court." Wintermyer, 571 Pa. at 203, 812 A.2d at 487.
We begin with the first issue, which involves the question of whether the WCJ and the Board erred in concluding that Claimant was not entitled to judgment in his favor against KBS based upon our holding in Yellow Freight. Section 416 of the Workers' Compensation Act (Act), 77 P.S. § 821, requires parties before a workers' compensation judge to file an answer to "any claim petition or other petition" within twenty days of being served with such petitions. Section 416 provides also that
Act of June 2, 1915, P.L. 736, as amended.
[e]very fact alleged in a claim petition not specifically denied by an answer so filed by an adverse party shall be deemed to be admitted by him. But the failure of any party or of all of them to deny a fact alleged in any other petition shall not preclude the workers' compensation judge before whom the petition is heard from requiring, of his own motion, proof of such fact. If a party fails to file an answer and/or fails to appear . . . at the hearing without adequate excuse, the workers' compensation judge hearing the petition shall decide the matter on the basis of the petition and evidence presented.
Claimant acknowledges that the rule established under Section 416 of the Act, and as interpreted in Yellow Freight, permits a workers' compensation judge to admit without evidence, facts, but not legal conclusions, averred in a claim petition when an adverse party, such as an employer or insurer, fails to respond to the averments without excuse. In this case, the WCJ denied Claimant's Yellow Freight motion because she reasoned that, even if she were to accept the averments as true, an underlying legal question necessary to Claimant's claim petition—whether KBS was Claimant's employer—remained to be resolved. As the Board noted, even if the WCJ had granted the Yellow Freight motion, Claimant would have been entitled only to the benefit of averred facts.
In his claim petition, the only factual matters Claimant averred were: (1) "The forklift I was driving tipped over causing me to strike my head;" (2) Claimant was not working at KBS's business office when he was injured but rather at FedEx; (3) Claimant notified his supervisor on the day of the alleged injury; (4) Claimant's job title when he was allegedly injured was "forklift operator/warehouseman;" (5) Claimant was not working for more than one employer at the time of his alleged injury; and (6) Claimant's alleged injury caused him to stop working.
In Dendenault v. Worker's Compensation Appeal Board (Philadelphia Flyers, Ltd.), 728 A.2d 1001 (Pa. Cmwlth. 1999), this Court held that an employer's failure to respond to a claim petition does not establish a claimant's right to a default judgment. Dendenault, 728 A.2d at 1005. "The WCJ's authority and discretion to determine the weight and credibility of evidence are not terminated merely because the employer is precluded from presenting evidence. Under these circumstances, the WCJ remains duty bound to determine whether the totality of the evidence is legally sufficient to satisfy the claimant's burden of proof." Id. We have also held that Section 416 does not preclude an employer from offering evidence in rebuttal to facts that a claimant did not specifically allege in a claim petition. Heraeus Electro Nite Co. v. Workmen's Comp. Appeal Bd. (Ulrich), 697 A.2d 603, 608 (Pa. Cmwlth. 1997), appeal granted, 551 Pa. 431, 710 A.2d 1139 (1998), and appeal dismissed, 554 Pa. 512, 721 A.2d 1095 (1999).
Here, the question of whether Claimant had an employment relationship with KBS is a question of law, and our holding in Yellow Freight simply does not apply to that issue. Further, as indicated above, when Claimant filed an identical claim petition against the Fund, and the Fund submitted a timely response, the WCJ was required to engage in an analysis of the legal question of whether KBS was Claimant's employer under the Act. Claimant does not dispute this proposition, but rather contends that the WCJ erred in concluding that KBS was not Claimant's employer based upon averments in the claim petition. Therefore, with regard to the claim petitions directed against KBS and the Fund, the applicability of our decision in Yellow Freight appears to be contingent on our resolution of Claimant's second issue, that is, whether the WCJ erred in concluding that FedEx, rather than KBS, was Claimant's employer.
The Fund, however, argues that Claimant has waived the issue of whether the WCJ erred in concluding that KBS was not Claimant's employer. If the Fund is correct, then we need not resolve the previous issue relating to the applicability of Yellow Freight, because the conclusion that FedEx was Claimant's employer would preclude recovery against KBS in any event.
In Jonathan Sheppard Stables v. Workers' Compensation Appeal Board (Wyatt), 739 A.2d 1084 (Pa. Cmwlth. 1999), this Court concluded that the employer, Jonathan Sheppard Stables, had waived issues relating to the underlying findings of fact and conclusions of law rendered by the workers' compensation judge, by failing on appeal to specify the particular errors and by only identifying by number the factual findings and legal conclusions that the workers' compensation judge had rendered. In a footnote, we stated that "in specifying the errors of law committed by the WCJ and the reasons why his decision does not conform to the provisions of the Act, Employer merely stated '2-10' on the appeal form to the Board . . . It is unclear as to what '2-10' is meant to convey as a basis for the appeal to the Board, and such a cryptic assertion clearly does not specify the errors of law committed by the WCJ or why his decision does not conform to the provisions of the Act." Id. at 1089 n.5.
In this case, Claimant identified specific conclusions of law which he believed were not correct or which were "not in accordance with" the Act. Claimant did specifically claim that the WCJ erred as a matter of law in denying his Yellow Freight motion, but does not specifically indicate the legal basis of his challenge to Conclusion of Law number 2. Consequently, we agree with the Fund that Claimant waived this issue. Moreover, an additional consequence of this waiver is that Claimant is bound by the conclusion that FedEx was Claimant's employer. Therefore, even if the WCJ were required to reconsider the Yellow Freight motion, the result would not be any different. Therefore, we conclude, that the WCJ did not err in denying Claimant's motion because granting the motion would not have affected the outcome in this case.
Based upon our resolution of these issues, we need not consider the merits of Claimant's allegation of error regarding the WCJ's denial of Claimant's claim petition. Accordingly, we affirm the Board's order.
We also note that Claimant has not asserted that the WCJ erred in denying the Fund's motion to join FedEx as an additional respondent. --------
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 23rd day of May, 2012, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge