IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Low Cost Tree Service/ : Steve Love, : Petitioner : : v. : : Workers Compensation Appeal : Board (Anderson, Uninsured : Employers Guaranty Fund and ACS : Claims Service), : No C.D Respondents : Submitted: March 6, 2015 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COVEY FILED: July 22, 2015 Low Cost Tree Service/Steve Love (Love) petitions this Court for review of the Workers Compensation (WC) Appeal Board s (Board) September 23, 2014 order affirming the Workers Compensation Judge s (WCJ) decision granting Keith Anderson s (Claimant) two claim petitions for WC benefits (Claim Petitions) and claim petition for benefits from the Uninsured Employer and the Uninsured Employers Guaranty Fund (UEGF) 1 (Fund Claim Petition) under the WC Act. 2 The 1 The [UEGF] maintains funds to pay workers compensation benefits to any claimant or dependents where an employer liable to pay benefits failed to insure or self-insure its liability at the time of the injury. Section 1602(c) of the [WC] Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 7 of the Act of November 9, 2006, P.L. 1362, 77 P.S. 2702(c). Anderson v. Workers Comp. Appeal Bd. (F.O. Transport), 111 A.3d 238, 241 n.1 (Pa. Cmwlth. 2015). 2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S ,

2 sole issue before this Court is whether the Board properly concluded that Claimant was Love s employee at the time he sustained his injury. 3 After review, we affirm. On May 3, 2012, Claimant filed a claim petition seeking WC benefits (Claim Petition 1) from Low Cost Tree Service alleging that he had sustained a right radius fracture as the result of a falling tree limb. Neither Love 4 nor Low Cost Tree Service answered Claim Petition 1. On June 1, 2012, Claimant filed the Fund Claim Petition describing the same injury and alleging that Claimant had filed a Notice of Claim Against Uninsured Employer. On June 20, 2012, the UEGF answered the Fund Claim Petition denying all material allegations and raising various defenses. On November 19, 2012, Claimant filed a claim petition for WC benefits (Claim Petition 2) from Steve Love describing the right radius fracture. The Claim Petitions and Fund Claim Petition were assigned to a WCJ and hearings were held in the matter. On June 14, 2013, having found that Claimant was Love s employee, the WCJ granted Claimant s Claim Petitions and the Fund Claim Petition. On June 20, 2013, the WCJ issued an amended decision holding Love primarily liable and UEGF secondarily liable for Claimant s benefits. Love appealed to the Board. On September 23, 2014, the Board affirmed the WCJ s decision. Love appealed to this Court. 5 3 The parties stipulated that Claimant sustained a right radius fracture when a large branch fell and struck him on his right forearm, and that Claimant s medical treatment for the fracture was reasonable and necessary. 4 Love testified that Low Cost Tree Service is not an entity. See Reproduced Record (R.R) at 12. He further stated it is a service he started with his kids and thereafter, friends began working with him. See R.R. at 20. He also testified: It s just me and a bunch of guys out working. Somewhere back years ago, people asked me what we call ourselves. So we picked a name that somebody might be interested in calling us. R.R. at 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. To the extent this appeal presents questions of law, review in this matter is plenary. Am. Rd. Lines v. Workers Comp. Appeal Bd. (Royal), 39 A.3d 603, 610 n.6 (Pa. Cmwlth. 2012) (citation omitted). 2

3 The law is well-established that [t]o 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). Whether an employeremployee relationship exists is a question of law based upon findings of fact. B&T Trucking v. Workers Comp. Appeal Bd. (Paull), 815 A.2d 1167, 1171 (Pa. Cmwlth. 2003) (emphasis added). Love argues that since he did not possess the necessary authority and control at the time of Claimant s injury, there was no employer-employee relationship between Claimant and Love and, therefore, Claimant is not entitled to receive WC benefits. The WCJ, as fact finder, has exclusive province over questions of credibility and a reviewing court is not to reweigh the evidence or review the credibility of witnesses. Furthermore, a WCJ may accept or reject the testimony of any witness in whole or in part. City of Phila. v. Workers Comp. Appeal Bd. (Reed), 785 A.2d 1065, 1068 (Pa. Cmwlth. 2001) (citation omitted). Unless made arbitrarily or capriciously, a WCJ s credibility determinations will be upheld on appeal. Dorsey v. Workers Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006). [A] capricious disregard [of evidence] occurs only when the fact-finder deliberately ignores relevant, competent evidence. Williams v. Workers Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 145 (Pa. Cmwlth. 2004). Importantly, this Court has held: [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. [Minicozzi v. Workers Comp. Appeal Bd. (Indust. Metal Plating, Inc.), 873 A.2d 25,] 29 [(Pa. Cmwlth. 2005)] (quoting [Del. Cnty.] v. Workers Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa.[]Cmwlth.[]2002)). We review the entire record to determine if it contains evidence a reasonable mind might 3

4 find sufficient to support the WCJ s findings. Minicozzi. If the record contains such evidence, the findings must be upheld even though the record contains conflicting evidence. Id. Lahr Mech. v. Workers Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa. Cmwlth. 2007). Testimony of a witness that was credited by the WCJ amounts to substantial evidence. Casne v. Workers Comp. Appeal Bd. (STAT Couriers, Inc.), 962 A.2d 14, 16 (Pa. Cmwlth. 2008). Claimant, Love and Raymond Lefever (Lefever) 6 testified before the WCJ. Based upon the testimony presented, the WCJ deemed Claimant s testimony credible, stating: [T]his [WCJ] finds credible the fact that Claimant had no prior experience in tree cutting service; that Claimant brought no tools to the job/work to be performed other than his hard hat; that Claimant was paid an average day rate for most days worked of $100 with some limited times, i.e., once in a while when he might be paid more when there was [a] big job; that he did not consider himself a partner in the tree service operation; that [] Love had trained him to do the work, i.e., [] Love instructed Claimant on how to use the chipper and the different other tools associated with the job; and [] Love provided direction on what to do for each job, i.e., [] Love told him what to do and if there was something to do, [] Love would outline what they were going to try to do and what the goal was and where to go. This [WCJ] accepts the foregoing as fact and to the extent that the testimony of either [] Love or [] Lefever conflict with or is materially different than the testimony of Claimant on these issues, the testimony of both [] Love and [] Lefever is specifically rejected. WCJ Dec. at 10 (footnote omitted). The WCJ specifically rejected Love s testimony as not credible where it conflicts with the testimony of Claimant[,] and found that Lefever s testimony was not credible and not relevant to the issue of whether Claimant was Love s employee. WCJ Dec. at Lefever testified that he is a partner in Low Cost Tree Service, but not an owner. 4

5 Based on his factual findings and credibility determinations, the WCJ concluded that Claimant was Love s employee, finding: WCJ Dec. at 14. Board Op. at 6. Claimant had responded to a Craigslist advertisement that provided a local tree company was looking for a helper or a laborer. This did not engender, in the mind of this [WCJ], that the tree cutting enterprise was seeking anyone with any specific skills or expertise. This fact was confirmed by the testimony of Claimant that he had not done this type of work before and that [] Love had trained him.... In addition, the work that was being performed was part of the regular business of [] Love d/b/a Low Cost Tree Service, i.e., this was an enterprise that had existed for the purpose of, among other things, tree cutting, before Claimant responded to the Craigslist advertisement and started working. Finally, although [] Love disavowed exercising any control and or the right to control, this [WCJ] simply did not find this testimony credible, especially in light of the analogy that [] Love drew when comparing the group working to a football game and agreeing that he was the captain of the team. This analogy comports better with the testimony of Claimant where he testified that [] Love provided direction on what to do for each job.... Given these factors, this [WCJ] concludes that Claimant has met his burden of proving that there was an employment relationship between Claimant and [] Love d/b/a Low Cost Tree Service. In affirming the WCJ s decision, the Board stated: The WCJ considered the Hammermill [Paper Co. v. Rust Eng g Co., 243 A.2d 389 (Pa. 1968)] factors, observing that the job did not require any specific skills or expertise. Claimant did not bring tools, and he was trained by [] Love. He further observed that Low Cost Tree Service was in existence before Claimant responded to the ad and started working, and the work being performed was part of the regular business of [] Love d/b/a Low Cost Tree Service. Our Supreme Court in Hammermill explained: 5

6 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. Id. at 392 (quoting Stepp v. Renn, 135 A.2d 794, 796 (Pa. Super. 1957)). Whether some or all of these factors exist in any given situation is not controlling. Universal Am-Can, Ltd. v. Workers Comp. Appeal Bd. (Minteer), 762 A.2d 328, 333 (Pa. 2000). Importantly: The key factor is whether the alleged employer had the right to control the work to be done, and the manner in which work is performed. We find control in an employment relationship exists where the alleged 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. Payment of wages and payroll deductions are significant, as is provision of workers compensation coverage. However, payment is not determinative. Am. Rd. Lines v. Workers Comp. Appeal Bd. (Royal), 39 A.3d 603, 611 (Pa. Cmwlth. 2012) (citations omitted; emphasis added); see also 3D Trucking Co. v. Workers Comp. Appeal Bd. (Fine & Anthony Holdings Int l), 921 A.2d 1281 (Pa. Cmwlth. 2007); Sunset Golf Course v. Workmen s Comp. Appeal Bd. (Dep t of Pub. Welfare), 595 A.2d 213 (Pa. Cmwlth. 1991). Here, the evidence supports the WCJ s finding that Claimant responded to an advertisement on Craigslist for a helper or laborer. Further, although Claimant 6

7 had no experience in landscaping, yard work or tree removal, he was hired by Love to perform work that was a regular part of Love s existing business. Love trained Claimant, directed the manner in which he was to perform and provided the tools and equipment Claimant needed to do his work. Claimant was paid by the day rather than by the job. Although Love contends that his testimony demonstrates that no employment relationship exists, his testimony was found to lack credibility. We must uphold the WCJ s factual findings that are supported by substantial evidence and the credibility determinations. City of Phila., Dorsey. Therefore, we hold that the WCJ and the Board properly considered and applied the Hammermill factors in concluding that Claimant was Love s employee at the time of his injury. For all of the above reasons, the Board s decision is affirmed. ANNE E. COVEY, Judge 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Low Cost Tree Service/ : Steve Love, : Petitioner : : v. : : Workers Compensation Appeal : Board (Anderson, Uninsured : Employers Guaranty Fund and ACS : Claims Service), : No C.D Respondents : O R D E R AND NOW, this 22 nd day of July, 2015, the Workers Compensation Appeal Board s September 23, 2014 order is affirmed. ANNE E. COVEY, Judge

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