Opinion
No. 644 C.D. 2014
12-04-2014
Porfirio Placencia Nunez, Petitioner v. Workers' Compensation Appeal Board (QC Quality Construction, Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Porfirio Placencia Nunez (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) reversing the decision of a workers' compensation judge (WCJ) and denying Claimant's claim petition for benefits under the Pennsylvania Workers' Compensation Act (Act). The sole issue in this case is whether Claimant is an employee and eligible for workers' compensation benefits or an independent contractor ineligible for benefits. Holding that Claimant was an employee at the time of injury, we reverse.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
In March 2011, Claimant filed a claim petition alleging that he fractured his left leg and injured his right knee when he fell from a ladder in December 2010 while working as a laborer for QC Quality Construction, Inc. (QC) and that he was fully disabled from his injuries. Claimant also filed a claim petition for benefits from the Uninsured Employer Guaranty Fund and Uninsured Employer (UEGF) alleging the same disabling injuries and the petitions were consolidated for disposition. QC filed answers to the petitions denying that Claimant was an employee at the time he sustained his injuries.
A claimant must be an employee to be eligible to receive benefits under the Act. Sections 103, 104, 301(a) of the Act, 77 P.S. §§21, 22, 431; Universal Am-Can, Ltd. v. Workers' Compensation Appeal Board (Minteer), 762 A.2d 328, 330 (Pa. 2000). It is a claimant's burden to establish an employer/employee relationship to receive benefits. Id.
Before the WCJ, Claimant testified that he worked for two or three years for QC rehabbing houses and that Carlos Quezada (Quezada) was his boss. He stated that his hours were from 8:00 a.m. to 4:30 or 5:00 p.m., and that while he was occasionally 15 minutes late, he could not arrive or leave the job whenever he wanted. He testified Quezada or his wife paid him in cash between $600.00 and $900.00 per week, and that QC paid him an hourly rate when he worked overtime. He went on to testify that QC sent him a 1099 form at the end of the year and that he paid his own taxes. He stated that he generally did electrical work for QC but learned how to do carpentry work around the windows while on the job for QC and that he was working on windows on the day that he was injured. He testified that he used his own tools when doing electrical work and fixing windows except for a machine that bends and cuts metal for the windows and the ladder that he was standing on when he fell. He stated that he would perform electrical work for Anna Stevens, a New Jersey company, when work was not available with QC, but that he immediately returned to QC when work was available.
Claimant testified that at the time of his injury, all of the other workers had left for another site, but that he was told to stay to finish carpentry work. He stated that he was working on the window of a house from the outside while on a ladder, when it slipped and he fell approximately 18 feet to the ground injuring both his legs and his back. He testified that he has to wear a boot on his left leg because he still has a lot of swelling in both legs; he needs to use crutches because he doesn't have the ability to stay on his feet for long; and he has not been back to any type of work since his fall.
Claimant also presented the deposition testimony of George Rodriguez, M.D., his treating board certified physiatrist and pain doctor, regarding the severity of his injuries and the extent of his continuing disability. (See N.T. 8/1/11 at 50-53).
Quezada testified that Claimant started working for QC as an employee in 2008, but that he left and returned to work in 2009 as an independent contractor and was not put back on the payroll. He stated that Claimant was hired as an electrician and QC was going to train him, but that he is "a skilled guy" and was not trained by QC to be a plumber or carpenter. He stated that Claimant was not instructed on how to do the work and was not supervised because Claimant was "a skilled guy" who knows how to perform the job. He testified that he told him what to do and not how to perform the job because Claimant knew how to do it. He stated that Claimant was not trained in window capping by any QC employee and learned it from another contractor. He testified that he told Claimant how many windows to complete and checked in on him on the day of Claimant's injury, but that he did not stay to supervise Claimant's work and indicated that the window job could be done either inside or outside of the house. He testified that Claimant was paid in cash and QC did not pay Claimant's taxes, although it issued him a 1099 form at his request, and did not provide Claimant with insurance benefits, a uniform or a company vehicle.
UEGF presented the deposition testimony of Armando Mendez, M.D., a board certified orthopedic surgeon, who testified that Claimant's work-related injuries were resolved and that he is capable of returning to full-time medium-duty work with lifting and repetitive work restrictions. (See N.T. 2/23/12 at 19-20).
The WCJ found Claimant's testimony generally more credible than Quezada's where they conflicted and found the following relevant facts:
• Claimant worked as an hourly employee for QC doing electrical, plumbing, and window capping work and he was paid $600.00 per week in cash with no written contract;
• Claimant would work for other employers, sometimes for two weeks or so when work for QC was slow, but he always returned to work for QC;
• Claimant was paid for the week if he worked a week and he was paid by the hour if he only worked a day at the same rate and he was paid overtime at that rate;
• Claimant and Quezada did not negotiate or decide on a price before a job because Claimant was paid depending on how much work he performed;
• Quezada was Claimant's boss and his hours were from 8:00 a.m. to 4:30 or 5:00 p.m.;
• Claimant could not arrive at or leave a job whenever he wanted to;(WCJ 3/24/11 Decision at 12-15).
• Claimant paid his own taxes based on 1099 forms that QC sent him at the end of the year;
• QC supplied all materials at all jobs while Claimant brought his own tools to a job, but he used QC's ladder and bending machine when capping the windows at the job he was working on at the time of injury;
• Claimant was originally hired as an employee in 2008;
• In 2009, Quezada's accountant told him not to have employees, but to have contractors so all his employees were told they were contractors at that time;
• Claimant was doing the same electrical, plumbing, and window capping work for QC when he returned to work for QC in 2009 that he had performed for QC in 2008;
• Claimant learned to cap windows on the job for QC by observing a co-worker and he only did this work for QC;
• Claimant only performed the window work by himself on two occasions including the day of injury;
• On the day of injury, his co-workers left to work at another site, Claimant was told to stay and finish the capping he was doing, and he was capping a window using QC's ladder when he slipped and fell.
Based on Claimant's credible testimony, the WCJ concluded:
• Claimant sustained his burden of proving that he was a QC employee because QC had the right to control the details of his work, what to do and when to do it;
• Claimant worked normal working hours and was not usually late; QC told him what work to do;(Id. at 17). As a result, the WCJ awarded benefits and Employer appealed.
• QC told Claimant to stay late and finish capping the windows on the date of injury;
• QC supplied the materials, ladder, and bending machine Claimant was using at the time of injury;
• Claimant did not do window or plumbing work for any other employer;
• Claimant was an hourly employee; Claimant and QC did not enter into a written contract for his services; and
• Claimant and QC did not negotiate the price of a job before it was completed.
The Board reversed, concluding that Claimant was not QC's employee because "the factors suggesting an employment relationship are far outweighed by the factors indicating an absence of an employment relationship, particularly in light of the lack of evidence that [QC] or [Quezada] had meaningful control over the manner of Claimant's work." (Board 3/26/14 Opinion at 7).
Specifically, the Board explained:
While the WCJ rejected [Quezada]'s testimony, Claimant admitted in his own testimony that he did not have anyone giving him instructions beyond telling him which tasks to do, and he was working by himself at the job site when he was injured. Where Claimant credibly acknowledged that he received no supervision during the completion of his work, and he performed at least some tasks alone at the site, his testimony is not sufficient to establish that [QC] or [Quezada] had control over the manner in which he carried out his work to such an extent that it established an employment relationship. We note that Claimant also testified that he knew how to do the window work because he learned how to do it on jobs he performed for [QC]. However, we cannot conclude that having received training at some point on [QC]'s job site amounts to control by [QC] or [Quezada] over the manner of his work at the time of his work injury, specifically where Claimant did not clarify from whom he received any such training.(Board 3/26/14 Opinion at 5-7) (citation and footnotes omitted). The Board also explained that the Construction Workplace Misclassification Act, Act of October 13, 2010, P.L. 506, 43 P.S. §§933.1-933.17, outlining criteria for determining whether a claimant is an employee or an independent contractor for workers' compensation and unemployment compensation purposes, is inapplicable because Claimant's alleged work injury occurred prior to its effective date. (See
We also note that Claimant credibly testified that he had to be at the job site from 8:00 a.m. to 4:30 or 5:00 p.m., and [Quezada] admitted that he checked in at the job site in the morning to make sure Claimant was completing his work. Nonetheless, we cannot conclude that needing to keep regular work hours or being subject to [Quezada]'s periodic verifications of work progress amount to the extent of control over the manner of Claimant's work that would establish an employment relationship, particularly where Claimant admitted that he was unsupervised and sometimes left alone to work. Although it is the right to control, not actual exercise of that right that evidences an employment relationship, Claimant's testimony as a whole does not support a conclusion that [QC] or [Quezada] had any ability or inclination to supervise how Claimant actually performed his work, including the window job he was doing alone when he was injured. Therefore, we must conclude that [QC] or [Quezada] did not exercise sufficient control over Claimant's manner of work as to establish an employment relationship on that basis.
With respect to other circumstances that are relevant to any alleged employment relationship, Claimant credibly testified that he used some tools that were not his own on [QC]'s job site, including a ladder and a metal bender. However, he also admitted that he used many of his own tools as well. Furthermore, while Claimant credibly testified that [QC] paid him by the week rather than by the job, he also acknowledged that he was paid with a 1099 form, and he was allowed to take jobs with other companies.
In this appeal, Claimant contends that the Board erred in reversing the WCJ's decision because her findings of fact support the legal conclusion that he was QC's employee at the time of his injuries. We agree.
This Court's 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. American Road Lines v. Workers' Compensation Appeal Board (Royal), 39 A.3d 603, 610 n.6 (Pa. Cmwlth. 2012).
As a corollary to this claim, Claimant also asserts that the Board impermissibly usurped the WCJ's fact finding role in concluding that he was not an employee, but was an independent contractor at the time of injury. While the WCJ is the ultimate finder of fact, the Board can consider whether any legal conclusion reached by the WCJ constitutes an error of law. Habib v. Workers' Compensation Appeal Board (John Roth Paving Pavemasters), 29 A.3d 409, 412 (Pa. Cmwlth. 2011), appeal denied, 40 A.3d 123 (Pa. 2012). Whether a claimant is an independent contractor or employee is a question of law based on the facts of the case that is fully reviewable by both the Board and this Court. Scher v. Workers' Compensation Appeal Board (City of Philadelphia), 740 A.2d 741, 746 (Pa. Cmwlth. 1999), appeal denied, 758 A.2d 666 (Pa. 2000). In this case, the Board did not make any additional findings of fact or reject any of the WCJ's findings of fact, and Claimant does not cite any specific instance where the Board overlooked, reinterpreted or presented new findings of fact. Rather, the Board's Opinion demonstrates that it applied the WCJ's findings of fact in reversing her legal conclusion that Claimant was an employee of QC at the time of injury. --------
"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., 762 A.2d at 330 (citations omitted). This Court should not be "solicitous to find contractorship rather than employment" and "inferences favoring the claim need make only slightly stronger appeal to reason that those opposed." Id. (citation omitted).
As our Supreme Court has explained:
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:Id. at 333 (citations omitted).
"Control of [the] manner of 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."
The most important of the foregoing factors are who controls the work to be completed and the manner in which it is to be performed. Id. (citations omitted). "[I]t is the existence of the right to control that is significant, irrespective of whether the control is actually exercised." Id. (citation omitted and emphasis in original). Control exists where the purported employer "possesses the right to select the employee; the right and power to discharge the employee; the power to direct the manner of performance; and, the power to control the employee." American Road Lines, 39 A.3d at 611 (citation omitted).
Here, the Board improperly concluded that Claimant was not QC's employee for workers' compensation purposes based on the findings made by the WCJ. While QC did not exercise control over the manner in which Claimant performed his work, it did exercise the right to control the work that Claimant completed - whether it be electrical, plumbing or window capping work. In addition, as the WCJ found: Claimant was required to be at QC's work site from 8:30 a.m. to either 4:30 or 5:00 p.m.; Claimant could not arrive at or leave a job whenever he wanted; Claimant and QC did not negotiate the price of a job before it was completed but, rather, he was paid weekly and hourly for overtime; QC supplied the materials, ladder and bending machine that Claimant was using at the time of injury; and, while Claimant could work for other employers, this only occurred when no other work was assigned to him by QC. Simply put, the control Employer had over Claimant is no different than the control building contractors have over its workers, especially a "skilled guy" worker. Based on those findings, we agree with the WCJ that her findings demonstrate that Claimant was, in fact, QC's employee at the time of injury. See, e.g., Miller's Building & Remodeling v. Workmen's Compensation Appeal Board (Hancock), 401 A.2d 598, 599-600 (Pa. Cmwlth. 1979).
Accordingly, the Board's order is reversed and the WCJ's order awarding benefits is reinstated.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 4th day of December, 2014, the order of the Workers' Compensation Appeal Board dated March 26, 2014, at Nos. A12-1163 and A12-1179, is reversed and the order of the workers' compensation judge awarding benefits is reinstated.
/s/_________
DAN PELLEGRINI, President Judge
id. at 3 n.2). In this appeal, Claimant does not contest the Board's determination in this regard. See (Petition for Review at 2, Brief of Petitioner at 4); Pa. R.A.P. 1513(d)(5), 2116(a).