IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Francis Evans, : Petitioner : : v. : : Workers' Compensation Appeal : Board (BCM Contracting), : No. 998 C.D Respondent : Submitted: November 15, 2013 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: February 21, 2014 Francis Evans (Claimant) challenges the order of the Workers Compensation Appeal Board (Board) that affirmed the Workers Compensation Judge s (WCJ) decision to vacate his earlier decision and dismiss Claimant s claim against Twin City Fire Insurance Company/Hartford (Twin City). On March 29, 2007, Claimant petitioned for benefits and alleged that he worked as a roofer for BCM Contracting (Employer). Claimant further alleged that on December 10, 2006, he sustained multiple injuries when he fell approximately 40 feet from the top rung of a ladder to the ground. Claim Petition, March 29, 2007, (Petition) at 1; Reproduced Record (R.R.) at 1a. As a result of the fall, Claimant alleged that he suffered a right fibular fracture, a right scapular fracture, and a left navicular fracture. Petition at 1; R.R. at 1a.

2 Twin City answered and denied all allegations. alleged that it did not insure Employer on the date of the alleged industry. Twin City also The WCJ scheduled five hearings during which Claimant did not present any testimony or admissible evidence in support of his petition. At the fifth hearing on May 28, 2008, Twin City requested dismissal because it did not insure Employer at the time of the alleged injury. The WCJ denied the request. Claimant presented no evidence at three additional hearings. One hearing was canceled at his request. At the hearing on September 17, 2008, Claimant s attorney, Ronald J. Fonner (Attorney Fonner) requested that the WCJ bifurcate the case to first determine whether Twin City insured Employer. Timothy Sullivan, attorney for Twin City, did not disagree. The WCJ stated, You will take a deposition to establish the lack of insurance submit that and I will decide whether there is insurance or not and we will proceed from there. Notes of Testimony, September 17, 2008, at 4. Twin City presented the deposition testimony of Daniel J. Theriault (Theriault), an underwriter for Hartford Insurance Group 1 in the small business section. Theriault testified that the small business section handled workers compensation policies for small commercial businesses with under one million dollars per year in payroll. Deposition of Daniel J. Theriault, August 13, 2009, (Theriault Deposition) at 3-4; R.R. at 74a-75a. Theriault explained that Hartford 1 Twin City is part of the Hartford Insurance Group. 2

3 insured Wayne Kapalka doing business as BCM Landscape Company. 2 Theriault Deposition at 6; R.R. at 77a. The insurance was listed under the code of landscape contractor. Theriault stated: That class would contemplate your general landscapingtype operation. That would be employees doing things as simple as mowing lawns. It would also contemplate things like planting shrubbery, any kind of trimming of that those types of plants. It would also contemplate things like hardscaping where... you might have some sort of a concrete or border around future landscaping. Theriault Deposition at 9-10; R.R. at 80a-81a. 3 Hartford also listed Employer under a code for snow plowing, but the policy did not cover any residential or commercial roofing. Theriault Deposition at 10; R.R. at 81a. Because of non-payment, Hartford cancelled Employer s policy effective November 26, Theriault Deposition at 12; R.R. at 83a. Employer submitted the policy and the notice of cancellation into evidence. At a tenth scheduled hearing on October 19, 2009, Claimant did not present any evidence. Twin City submitted Theriault s deposition. 2 BCM Landscape Company is a different name than that of the alleged employer, BCM Contracting. 3 Attorney Fonner did not object to this testimony. Attorney Fonner was present for the deposition and conducted cross-examination. He also lodged hearsay objections to Theriault s description of events which occurred prior to when he became aware of the insurance policy and to which he may not have had personal knowledge. Attorney Fonner also objected to a lack of foundation at one point and to one question as leading. 3

4 In a decision dated January 6, 2010, the WCJ denied and dismissed the claim petition. The WCJ found Theriault credible. The WCJ made the following relevant findings of fact: 17. After careful and thorough review of all of the foregoing, this Workers Compensation Judge finds that the claimant failed to meet his burden of proof with respect to his pending Claim Petition. In finding that the claimant failed to meet his burden of proof, the Workers Compensation Judge finds that the claimant has not provided any testimony or admissible evidence in support of his claim petition. 18. After careful and thorough review of all of the foregoing, this Workers Compensation Judge finds that the claimant failed to meet his burden of proof with respect to his pending Claim Petition. In finding that the claimant failed to meet his burden of proof, this Workers Compensation Judge finds the testimony of Dan Theriault to be persuasive and credible and undisputed After careful and thorough review of all he [sic] foregoing, this Workers Compensation Judge finds that the claimant has failed to meet his burden of proof with respect to his claim that BCM Contracting was insured by Twin City Fire Insurance Company/The Hartford at the time of his alleged injury on December 10, Furthermore, the claimant has failed to meet his burden of proof that Wayne Kapalka was the owner, operator or in any way affiliated with BCM Contracting. 22. After careful and thorough review of all the foregoing, this Workers Compensation Judge finds that claimant failed to meet his burden of proof with respect to the argument that the policy of BCM Landscaping should be altered and thereby enlarged to include employees of BCM Contracting due to the fact they have never presented any evidence that the claimant was employed by BCM Contracting, or any other entity, and Wayne Kapalka and/or BCM Landscaping is in any way affiliated with BCM Contracting. 4

5 WCJ s Decision, January 6, 2010, Findings of Fact Nos and at 4-6; R.R. at 15a-17a. After receiving the decision, Attorney Fonner, Claimant s counsel, sent the following letter to the WCJ: I have reviewed your January 6, 2010 Decision in the above-referenced matter. As you may recall, defense counsel for the insurance carrier and I had requested that this matter be bifurcated for you to render a decision with respect to whether the insurance carrier insured the employer at the time of Mr. Evans work injury. The deposition of an insurance carrier representative took place and was offered into evidence. The record was then closed, only with respect to that issue. In reviewing your January 6, 2010 Decision, it appears that you rendered a decision with respect to the Claim Petition in its entirety. Based on the stipulation with respect to what was to be decided at this point, Mr. Evans respectfully requests that you vacate your January 6, 2010 Decision to reflect that the Claim Petition is being dismissed, only as it pertains to the Defendant, insurance carrier. Furthermore, Mr. Evans respectfully requests that you indicate, in your Decision, that the case will continue against the employer. I am enclosing a proposed order to encompass these changes. I discussed this matter with Mr. Sullivan [Counsel for Twin City] and he has no objection to this request. Thank you for your consideration of this matter. Letter from Ronald J. Fonner, January 15, 2010, at 1; Supplemental Reproduced Record (S.R.R.) at 1b. 5

6 The proposed order, included with the letter, stated that the claim petition was dismissed only with respect to Twin City and the claim petition as it pertained to Employer would continue to be litigated by the parties. the earlier decision: On January 19, 2010, the WCJ issued an interlocutory order vacating And now, this 19 th day of January 2010, it is hereby ordered that the Decision rendered by this Judge on the 5 th of January, 2010, be vacated. Based on the evidence or [sic] record, and the stipulation of the parties to bifurcate this matter, it is hereby ordered that the Claim Petition is dismissed only with respect to the defendant/insurance carrier, Twin City Fire Insurance Company/The Hartford. This Judge has determined that the defendant/insurance carrier, Twin City Fire Insurance Company/The Hartford did not insure the defendant/employer on the date of injury and the petition with respect to the defendant/insurance carrier, Twin City Fire Insurance Company/The Hartford and [sic] is hereby dismissed. The Petition as it pertains to the defendant/employer will continue to be litigated by the parties. This is a Final Order with respect to the defendant/insurance carrier, Twin City Fire Insurance Company/The Hartford. Interlocutory Order Vacating Decision, January 19, 2010, at 1; R.R. at 20a. Claimant appealed to the Board and asserted that the WCJ erred when he determined that Twin City did not insure Claimant at the time of his alleged injury because Theriault was not competent to testify with respect to the cancellation of the policy insofar as the testimony he provided was hearsay, that the WCJ erred when he determined that Employer was not insured by Twin City 6

7 because of the type of work Claimant performed, and that the cancellation notice offered by Twin City was not signed and was not authenticated by Theriault. The Board affirmed: Instantly, the Judge initially issued a January 6, 2010 Decision and Order, which denied Claimant s Claim Petition against both Twin City Fire and Defendant [Employer] itself. However, that Decision and Order was later vacated by the Judge s January 19, 2010 Interlocutory Order. The Judge properly vacated his original Decision based upon a written stipulation from both parties agreeing that the Decision and Order should be vacated and the Judge should issue an amended Order clarifying the issues.... Thus, because the January 6, 2010 Decision and Order is vacated, Claimant can not [sic] now make any arguments on appeal as to its merits. Nevertheless, Claimant also appeals the January 19, 2010 Interlocutory Order. Again, this Order was properly issued by the Judge pursuant to a written stipulation between the parties. In terms of the Order itself, it only pertains to Twin City Fire being dismissed from the case, and leaves open Claimant s Claim Petition for a final determination in regard to Defendant itself. Thus, because it is not a final disposition of Claimant s Claim Petition, it is properly an interlocutory order, and not subject to appeal by Claimant. (Citations omitted). Board Opinion, May 17, 2013, at 2-3; R.R. at 41a-42a. The Board also determined that Claimant stipulated to the interlocutory order. 7

8 Claimant contends that the Board erred when it concluded that Claimant had stipulated to the dismissal of Twin City as the insurance carrier liable for his injuries. 4 Although the Board mentioned the stipulation in its decision, the primary reason why it affirmed the WCJ was that the WCJ s order was not a final order that disposed of Claimant s claim petition, but interlocutory and not appealable by Claimant. In Benjamin v. Workmen s Compensation Appeal Board (Furlong Manufacturing Company), 672 A.2d 364, 367 (Pa. Cmwlth. 1996), this Court addressed an interlocutory order by a workers compensation judge and explained, [a] decision of a WCJ that does not dispose of all claims or of all parties is interlocutory. 5 Here, the WCJ s order of January 19, 2010, that dismissed Twin City was interlocutory because it did not dispose of the claim of Claimant or remove Employer from the case. The Board s determination that the WCJ s order was interlocutory and not subject to appeal by Claimant was proper. 6 4 This Court s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 5 In Benjamin, the issue before this Court was whether an order by a WCJ that directed Furlong Manufacturing Company to pay all escrowed legal fees to Fred Benjamin s lawyer and to continue to pay such fees until the WCJ issued a final order was interlocutory. 6 Although the Board also mentioned that Claimant stipulated to the order which dismissed Twin City, this Court need not address this alternate reason for the Board s decision. 8

9 Curiously, Claimant does not address the Board s determination that the WCJ issued an interlocutory, unappealable order as that was the primary basis for the Board s decision. Accordingly, this Court affirms and this case is remanded to the Board with instructions to remand to the WCJ for consideration of the merits of Claimant s claim petition against Employer. 7 BERNARD L. McGINLEY, Judge Judge McCullough did not participate in the decision in this case. 7 Once the WCJ issues a final order, Claimant will have the opportunity to raise the issue of Twin City s coverage of Employer before the Board and, ultimately, this Court, if he so chooses. 9

10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Francis Evans, : Petitioner : : v. : : Workers' Compensation Appeal : Board (BCM Contracting), : No. 998 C.D Respondent : O R D E R AND NOW, this 21 st day of February, 2014, the order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed and this case is remanded to the Workers Compensation Appeal Board to remand to the Workers Compensation Judge for consideration of the merits of Francis Evans s claim petition against BCM Contracting. BERNARD L. McGINLEY, Judge

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