Edwards v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Senior Judge FRIEDMAN.

Because the majority and the Board erred in usurping the WCJ’s role as fact-finder and concluding that the facts are similar to this court’s unreported opinion in Fletcher v. Workers’ Compensation Appeal Board (Saia d/b/a Visiting Angels), 2010 WL 9513248 (Pa.Cmwlth., No. 1664 C.D.2009, filed March 26, 2010), I respectfully dissent.1

Because Claimant prevailed before the WCJ, she “is entitled to all favorable inferences that can be drawn from the evidence.” State Workmen’s Insurance Fund v. Workmen’s Compensation Appeal Board (Hoover), 680 A.2d 40, 43 (Pa.Cmwlth.1996). The majority concludes that “the facts of this case are nearly identical to those in Fletcher.’’ (Maj. Op. at 1163.) I cannot agree.

In Fletcher, this court found it “most important” that Nicole Saia, owner of a health care agency, testified that she did not have the right to exercise supervision or control over the claimant’s activities at the client’s residence and the claimant had no duty to report to Saia. Fletcher, slip op. at 12. Here, the WCJ specifically found that “the manner in which [Claimant] performed her job [was] set, controlled and defined by [Company].” (WCJ’s Findings of Fact, No. 18.) Company trained Claimant to be a caregiver, provided Claimant with a manual for patient care, stayed in constant contact with Claimant, advising her of the client’s condition, and set Claimant’s hours. (Id., Nos. 3-4,18.) Company also required Claimant “to constantly check in and out when working on a case.” (Id., No. 3.)

Moreover, in Fletcher, the WCJ determined that Saia did not have the authority to terminate the relationship between a caregiver and a client. Fletcher, slip op. at 12. Here, the WCJ specifically found that Company could remove a caregiver from a case and replace the caregiver with someone else. (WCJ’s Findings of Fact, No. 15.) Company could also terminate a caregiver at any time. (Id., No. 18.)

*1165Additionally, contrary to the majority’s finding that the client determined Claimant’s rate of pay (Maj. Op. at 1163), the WCJ specifically found that Company set Claimant’s hourly wage rate. (WCJ’s Findings of Fact, Nos. 3, 18.) Unlike the claimant in Fletcher, Claimant here did not sign an employment agreement or an independent contractor agreement at the time Company hired her. Specifically, Claimant had been working for Company .for several months before signing an employment agreement in 2009, and did not sign an independent contractor agreement until 2011. (WCJ’s Findings of Fact, Nos. 7, 12.)2

In determining whether an. employer-employee relationship exists, a court may consider the following factors:

(1) control of manner the work is done; (2) responsibility for result only; (3) terms of agreement between the parties; (4) nature of the work/occupation; (5) skill required for performance; (6) whether one is engaged in a distinct occupation or business; (7) which party supplies the tools/equipment; (8) whether payment is by time or by the job; (9) whether work is part of the regular business of employer; and, (10) the right to terminate employment.

American Road Lines v. Workers’ Compensation Appeal Board (Royal), 39 A.3d 603, 611 (Pa.Cmwlth.2012). Control over the work to be completed and the manner in which it is to be performed are the primary factors to consider. Id, Control 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.” Id.

As found by the WCJ,. Company assigned ' Claimant to work at the client’s home. (WCJ’s Findings of Fact, Nos. 3-4.) Company could terminate Claimant at any time. (Id., No. 18,) Company controlled Claimant’s hours and wages and the manner in which she performed her work. (Id.)

Accordingly, based on the WCJ’s findings of fact, I would conclude that Claimant is an employee of Company and reverse the decision of the Board.

. In addition to being factually dissimilar, Fletcher, an unreported opinion, is not controlling.

. The WCJ found that the purpose of the independent contractor agreement “was to attempt to avoid liability for any work injuries sustained by the aides who work for and are employed by [Company]." (WCJ's Findings of Fact, No. 19.)