Opinion
No. 1061 C.D. 2014
07-10-2015
Joseph Keenan, Petitioner v. Workers' Compensation Appeal Board (Cocco d/b/a Joe's Awning Services and Uninsured Employers Guarantee Fund), Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Joseph Keenan (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), which affirmed in part, reversed in part, and modified in part the decision of a Workers' Compensation Judge (WCJ). The Board affirmed the WCJ's decision that Claimant was an employee of Joe's Awning Services (Employer) and not an independent contractor. The Board reversed the WCJ's decision that Claimant was not a seasonal employee, and the Board modified the WCJ's award of workers' compensation benefits. The Board also suspended Claimant's benefits as of December 28, 2009. We now affirm in part, reverse in part, vacate in part, and remand the matter for further proceedings.
On June 10, 2009, while employed by Employer, Claimant sustained a work-related left wrist injury when he fell off a ladder at a job site. (Reproduced Record (R.R.) at 12.) Claimant filed a claim petition on October 5, 2009, seeking full disability, medical bills, and counsel fees. (Id. at 12-15.) Employer did not have workers' compensation insurance. Claimant filed a "notice of claim against uninsured employer" and sought benefits from the Uninsured Employer Guaranty Fund (UEGF). (Id. at 16-21.) UEGF filed an answer denying the material allegations of Claimant's claim petition. The WCJ conducted a hearing on September 21, 2010, to determine whether Claimant was an employee of Employer. At the parties' request, the WCJ bifurcated the proceeding. On November 18, 2010, the WCJ issued an interlocutory order finding that Claimant was an employee of Employer rather than an independent contractor. (Id. at 32-33.) The WCJ conducted another hearing on February 10, 2011.
Claimant testified by deposition on April 27, 2010, and at the hearing before the WCJ on February 10, 2011. He testified that he was employed as a laborer by Employer in February or March of 2009. (Id. at 158.) His job involved installing and removing cloth awnings. (Id. at 159.) When Claimant was hired, he had no experience installing awnings. (Id. at 161.) Employer's owner, Joseph Cocco, did not inform Claimant that Claimant was being hired as an independent contractor, nor did Mr. Cocco request that Claimant provide his own liability insurance. (Id. at 161-62.) Claimant did not contact customers directly and was not in control of scheduling jobs with customers. (Id. at 163.) On work days, Mr. Cocco would inform Claimant when to meet him at Employer's shop. (Id. at 164.) Claimant would then load Employer's van and drive with Mr. Cocco to the job site. (Id. at 166.) Claimant did not provide any of his own tools or materials for jobs. (Id.) Once Claimant arrived at the job site, either Mr. Cocco or Employer's foreman, Thomas Bonner, would tell Claimant what to do. (Id. at 167-68.) Mr. Cocco or Mr. Bonner dictated Claimant's daily schedule. (Id. at 169.) Claimant worked forty to fifty hours a week at a rate of $10.00 per hour. (Id. at 171-72.) Regarding his expectations concerning future work, Claimant testified:
Q. Okay. How many weeks, like for example, you said you were employed there - - - when did you start?(Id. at 241.) After his work injury, Claimant did not return to work for Employer.
A. I would say around February and September and October we were getting laid off.
Q. Okay. So you wouldn't work for, say, October, November, December and January?
A. Not all the time. It depended on if the weather was nice out, we'd go out and take some awnings down or install awnings.
Following his injury on June 10, 2009, Claimant attempted to return to work for different employers. (Id. at 176.) From December 28, 2009, through January 28, 2010, Claimant worked as a project manager for a company called Providence Point. (Id. at 180.) He made $10.50 per hour and worked forty hours a week. (Id. at 180-81.) Providence Point terminated Claimant's employment when it discovered that Claimant had a criminal conviction in Florida. (Id. at 181.) Claimant testified that in October 2010 he found employment with a company called Cleaning Concepts. (Id. at 239.) While employed with Cleaning Concepts, Claimant began to feel throbbing pain in his left wrist. (Id. at 240.) Claimant left employment with Cleaning Concepts due to the pain in his wrist. (Id. at 249). Claimant then began to work at Double L, a bar where he works twelve hours a week for $7.25 per hour. (Id. at 176.)
Mr. Cocco testified by deposition. He testified that he is the owner of Employer. (Id. at 203-04.) Mr. Cocco hired Claimant as a laborer, and Claimant initially worked about two days a week. (Id. at 204.) He testified that he viewed Claimant as an independent contractor. (Id. at 207.) Mr. Cocco also indicated that Employer's business is seasonal and that the work usually ends in June. (Id. at 209.) Mr. Cocco works in Employer's shop during the off-season and occasionally hires help. (Id.) Employer did not maintain workers' compensation insurance. (Id. at 214.) After Claimant's injury, Claimant refused to return to work for Employer. (Id. at 211-12.)
The WCJ issued a final decision on March 11, 2011, which was subsequently remanded back to the WCJ by the Board to allow for the submission of briefs by the parties. (Id. at 60.) After remand, the WCJ issued a new decision, which granted Claimant's claim petition and required UEGF to make any benefit payments that Employer did not. (Id. at 76.) In rendering his decision, the WCJ determined that Claimant was more credible than Employer. (Id. at 72.) The WCJ, therefore, found Claimant credible when he testified that his work was not seasonal in nature and also when he testified to the nature of his relationship with Employer. Accordingly, the WCJ concluded that Claimant's work was not seasonal and that Claimant was an employee of Employer. (Id. at 75-76.) Concerning Claimant's work hours and salary, the WCJ found:
This Judge infers and finds that . . . [C]laimant worked about eight hours per day at two days per week for an initial amount of $9.00 per hour for the period from on or about March 1, 2009[,] to on or about May 30, 2009. He therefore earned about $60.00 per week during that period. He then began working May 31, 2009[,] at about 40 hours per week for [Employer] at $10.00 per hour and he earned $400.00 per week from that time until June 10, 2009.(Id. at 73.) The WCJ awarded Claimant benefits in the amount of $360.00 per week. Employer and UEGF appealed to the Board.
The Board reversed in part and affirmed in part. Specifically, the Board reversed the WCJ's determination that Claimant's job was not seasonal, because the WCJ relied on Claimant's testimony and disregarded Mr. Cocco's "unrefuted testimony . . . that [Employer's] business was seasonal in nature with awnings being installed from March to June and awnings being taken down from September to the middle of November." (Id. at 102-03.) The Board also modified Claimant's award of benefits based on the number of weeks Claimant worked for Employer and Claimant's actual earnings while he worked for Employer. Lastly, the Board suspended Claimant's benefits as of December 28, 2009, because Claimant earned a higher weekly wage once he began working for Providence Point on that date. Further, Claimant's wage loss after Providence Point terminated his employment was not related to his work injury. Claimant appealed to this Court.
On appeal, Claimant argues that the Board erred in concluding that he was a seasonal employee, suspending his benefits as of December 28, 2009, and modifying his benefits based on its determination that Claimant was a seasonal employee. Employer argues that the Board erred in determining that Claimant was an employee of Employer, rather than an independent contractor.
Our scope 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 first address Claimant's argument that the Board erred as a matter of law in determining that he was a seasonal employee. Claimant contends that there was substantial, credible evidence to support the WCJ's finding that Claimant was not a seasonal employee, thus, the Board exceeded its scope of review in reversing the WCJ's finding. Employer and UEGF counter that Claimant could not perform his job duties throughout the year, therefore, Claimant must be deemed a seasonal employee.
Section 309(e) of the Workers' Compensation Act (Act), pertaining to seasonal employees, provides that seasonal occupations are those which "cannot be carried on throughout the year." "[L]abor or occupation possible of performance and being carried on at any time of the year, or through the entire twelve months, is certainly not seasonal." Froehly v. T.M. Harton Co., 139 A. 727, 730 (Pa. 1927). The inquiry centers on the character of the work rather than the period during which the business is open. Id. In Froehly, the Pennsylvania Supreme Court held that dishwashing was not a seasonal occupation, even though the claimant washed dishes for a business that was only open during the summer. Id.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(e).
In Ross v. Workers' Compensation Appeal Board (Arena Football League), 702 A.2d 1099 (Pa. Cmwlth. 1997), appeal denied, 724 A.2d 937 (Pa. 1998), this Court considered whether a professional football player was a seasonal employee. We determined that the Arena Football League operated on a seasonal basis because its games took place during a specified period of time. Id. at 1100-01. Further, even though football can be played at any time during the year, the claimant had a contract which precluded him from playing football for any other employer. Id. at 1101. The claimant was only able to play football during the football season set by the Arena Football League, and, therefore, the claimant was a seasonal employee. Id.
The instant matter is distinguishable from Ross. Here, Claimant was employed by Employer as a "laborer." (R.R. at 158.) Despite Employer's argument that the business is only open during certain seasons, the Board must look at the nature of the claimant's work. The occupation of laborer is one that is capable of being performed throughout the entire year. Claimant had no contract that precluded him from finding employment as a laborer elsewhere. Further, Claimant credibly testified that although he expected to be laid off in the winter, he would continue to work when the weather was suitable enough to work outside. (Id. at 241-42.) The Board, therefore, erred in concluding as a matter of law that Claimant was a seasonal employee.
Claimant next argues that the Board erred in suspending his benefits as of December 28, 2009. Claimant cites Brandywine Mazda Suzuki and Inservco v. Workers' Compensation Board of Appeal (Asman), 872 A.2d 253 (Pa. Cmwlth. 2005), in support of this contention. In Brandywine, the claimant sustained a work-related injury, and the employer terminated his employment a few weeks later. Brandywine, 872 A.2d at 254. The WCJ found that the claimant's employment had been terminated for poor job performance, which the employer was aware of prior to the occurrence of claimant's work injury. Id. The WCJ then concluded that the claimant's loss of earnings was not due to his work injury and suspended the claimant's benefits. Id. The Board determined that the WCJ had erred in suspending the claimant's benefits without proof of job availability, and the employer appealed to this Court. We held:
[W]hen a claimant has proven a disabling work injury, i.e., a loss of earnings caused by a work injury, then pre-injury grounds for firing the claimant cannot act as a superseding cause of a claimant's loss of earnings and relieve employer of having to show job availability in order to obtain a suspension of benefits.Id. at 257. We concluded that, because the employer terminated the claimant's employment "for poor job performance which had occurred prior to his injury, the Board properly concluded that benefits could not be suspended absent proof of available work." Id. Claimant contends that, pursuant to Brandywine, the Board erred in considering conduct that occurred prior to his work injury.
"[C]ompensation may properly be suspended when the post-injury earnings equal or exceed the wages previously earned." Palmiere v. Workmen's Comp. Appeal Bd. (East End Trucking), 496 A.2d 918, 919 n.1 (Pa. Cmwlth. 1985). In Harvey v. Workers' Compensation Appeal Board (Monongahela Valley Hospital), 983 A.2d 1254 (Pa. Cmwlth. 2009), appeal denied, 995 A.2d 335 (Pa. 2010), a claimant's employment was terminated due to the loss of her nursing license prior to her work injury. Id. at 1261. This Court determined that Brandywine did not control, because the employer only learned of claimant's loss of her nursing license after the work injury had occurred, and, thus, the employer had no opportunity to terminate the claimant's employment until after she sustained her work injury. Id. This Court also noted that "the only relevant issue in deciding whether a claimant's benefits should be suspended is whether the loss of earnings was no longer the result of the work injury." Id. at 1262 (emphasis in original). The claimant's loss of earnings was a result of her pre-injury misconduct, rather than her work injury.
Here, Claimant's loss of earnings as of December 28, 2009, was not the result of his work injury. As an employee of Providence Point, Claimant had a higher hourly wage than he did when he worked for Employer. Claimant's subsequent loss of earnings was due entirely to his criminal conviction, of which Providence Point was initially unaware. Once Claimant's conviction was discovered, Providence Point terminated his employment. If Claimant had not had a criminal conviction, his employment would not have been terminated and he would not have sustained a loss of earnings. Claimant's loss of earnings was entirely unrelated to his work injury, and, therefore, the Board did not err in suspending Claimant's benefits as of December 28, 2009.
As part of its argument in support of the Board's suspension of Claimant's benefits, Employer also contends that "there is no medical evidence that clearly demonstrates with a certainty that . . . Claimant is unable to perform his pre-injury work." (Employer's Br. at 19.) Because we affirm the Board with respect to the suspension of Claimant's benefits, we need not address Employer's additional argument.
Claimant next argues that the Board erred in modifying the WCJ's award of benefits. Claimant contends that because his employment was not seasonal, the Board erred in amending the WCJ's calculation of benefits on the basis that he was a seasonal employee. Section 309(e) of the Act provides:
Except as provided in clause (d.1) or (d.2), in occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the average weekly wage shall be taken to be one-fiftieth of the total wages which the employe has earned from all occupations during the twelve calendar months immediately preceding the injury, unless it be shown that during such year, by reason of exceptional causes, such method of computation does not ascertain fairly the earnings of the employe, in which case the period for
calculation shall be extended so far as to give a basis for the fair ascertainment of his average weekly earnings.
Despite Claimant's contentions, the Board did not use Section 309(e) of the Act to calculate Claimant's benefits. Rather, the Board noted that "there is no indication that Claimant worked for any employer in the twelve calendar months immediately preceding his injuries," and, thus, "Section 309(e) directs us back to Section 309(d.1) and (d.2) to calculate Claimant's average weekly wage." (R.R. at 103.) Sections 309(d.1) and (d.2) of the Act, as amended, 77 P.S. §§ 309(d.1) and (d.2), provide:
(d.1) If the employe has not been employed by the employer for at least three consecutive periods of thirteen calendar weeks in the fifty-two weeks immediately preceding the injury, the average weekly wage shall be calculated by dividing by thirteen the total wages earned in the employ of the employer for any completed period of thirteen calendar weeks immediately preceding the injury and by averaging the total amounts earned during such periods.The Board determined that Section 309(d.2) of the Act should apply because "it is likely [Claimant] worked thirteen weeks or less." (Id. at 104.) The Board calculated Claimant's actual earnings using the WCJ's findings and subsequently arrived at an average weekly wage of $162.29 per week.
(d.2) If the employe has worked less than a complete period of thirteen calendar weeks and does not have fixed weekly wages, the average weekly wage shall be the hourly wage rate multiplied by the number of hours the employe was expected to work per week under the terms of employment.
In Burkhart Refractory Installation v. Workers' Compensation Appeal Board (Christ), 896 A.2d 9 (Pa. Cmwlth.), appeal denied, 906 A.2d 1197 (Pa. 2006), a claimant was hired for an unspecified number of hours and worked only twelve weeks before he sustained a work-related injury. The WCJ strictly applied the formula in Section 309(d.2) of the Act to calculate the claimant's average weekly wage, but the Board reversed, concluding that "a strict application of Section 309(d.2) of the Act . . . did not afford a determination that reflected economic reality." Id. at 10. Instead, the Board divided the claimant's gross wages by the number of weeks he had actually worked. Id. This Court affirmed the Board's use of this alternative formula. Id. at 13. In so doing, we noted that Section 309(d.2) of the Act could not be strictly applied to the claimant's situation, because the claimant did not have a specific number of work hours. Id. The Board's use of an alternative formula where Claimant worked less than thirteen weeks and did not have set work hours constituted a "fair compromise in this situation." Id.
The claimant in Burkhart was employed for sixteen weeks but only earned wages for twelve of those weeks. Burkhart, 896 A.2d at 12.
It is unclear what formula the WCJ or Board applied to calculate Claimant's average weekly wage, and, thus, we cannot determine from the record whether the Board's modification was proper. The Board indicated that it "could not discern when in March 2009 Claimant actually began working," but it presumed that Claimant's term of employment was likely thirteen weeks or less and appeared to apply the Burkhart formula. (Bd. Op. at 11.) The WCJ, however, found that Claimant began working on March 1, 2009, and appeared to calculate Claimant's average weekly wage using Section 309(d.2) of the Act. If Claimant worked from March 1, 2009, to June 10, 2009, Claimant's term of employment was over fourteen weeks and the WCJ or Board should have applied Section 309(d.1) of the Act, which both failed to do. Alternatively, if Claimant worked for less than thirteen weeks, the Board's calculation would have been appropriate. It is, therefore, necessary that we remand this matter to the Board with instructions that the matter be remanded to the WCJ, so that the WCJ can determine when Claimant began working and calculate his average weekly wage accordingly.
Despite this finding, there is no evidence that Claimant began working on March 1, 2009. Claimant testified only that he began working in "February or March." (R.R. at 158.)
Finally, Employer argues that the WCJ erred in finding that Claimant was an employee rather than an independent contractor. Claimant, however, did not raise this issue in his petition for review and Employer failed to file a cross-petition for review within fourteen days of the service of Claimant's petition for review. See Pa. R.A.P. 1512(a)(2). Employer has thus waived the issue. Accordingly, we will not consider Employer's argument that Claimant was an independent contractor.
Even if Employer had not waived the argument, we would reject it. Employer essentially contends that substantial evidence did not exist for the WCJ to find that Claimant was an employee rather than an independent contractor. In Hammermill Paper Company v. Rust Engineering Company, 243 A.2d 389 (Pa. 1968), the Pennsylvania Supreme Court listed the factors relevant to determining whether a claimant is an employee or an independent contractor:
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 employed is engaged in a distinct occupation or business; which party supplies 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.
Accordingly, we affirm in part, reverse in part, and vacate in part the Board's order. This matter is remanded to the Board with instruction that the matter be remanded to the WCJ for additional fact finding and calculation of Claimant's average weekly wage consistent with this opinion.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 10th day of July, 2015, the order of the Workers' Compensation Appeal Board (Board) is hereby REVERSED in part, as it relates to the Board's determination that Joseph Keenan's (Claimant) employment with Joe's Awning Services was seasonal. The order is VACATED in part, as it relates to the Board's modification of Claimant's average weekly wage. This matter is REMANDED to the Board with instruction that the matter be remanded to the Workers' Compensation Judge for additional fact finding and calculation of Claimant's average weekly wage consistent with this opinion. In all other respects, the Board's order is hereby AFFIRMED.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge
Id. at 392.
Claimant's credible testimony concerning his relationship with Employer constitutes substantial evidence to support the WCJ's determination that Claimant was an employee. "Substantial evidence is evidence which a reasonable mind would accept as adequate to support a conclusion." Cinram Manufacturing, Inc. v. Workers' Comp. Appeal Bd. (Hill), 975 A.2d 577, 583 (Pa. 2009). Here, Claimant testified that he was never informed that he was hired as an independent contractor. (R.R. at 161.) Claimant had no direct contact with customers, and he was supervised by Mr. Cocco or his foreman. (Id. at 167-69.) Claimant used Mr. Cocco's tools and materials. (Id. at 166.) Claimant did not have any particular skill in installing and removing cloth awnings, nor did he have any past work experience. (Id. at 161.) Claimant's credible testimony, therefore, supports the WCJ's determination that Claimant was an employee rather than an independent contractor.