Johnson v. Workmen's Compensation Appeal Board

PELLEGRINI, Judge.

Stephen Johnson (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board) affirming the Referee’s decision denying him workmen’s compensation benefits because he was not an employee of the Dubois Courier Express (Courier/Newspaper) at the time he was injured.1

On January 2, 1986, Claimant took over his sister’s newspaper delivery route and began delivering newspapers for the Courier. At that time, he was thirteen years old. On the evening of June 6,1986, while making deliveries, Claimant was *79hit by a car as he attempted to cross the street. He sustained serious injuries and incurred significant medical expenses.

Claimant filed a claim petition for workmen’s compensation benefits. The Courier filed an answer denying responsibility and claiming that Claimant was an independent contractor rather than an employee of the Courier at the time of his injury. As such, it claimed his injury was not covered under The Pennsylvania Workmen’s Compensation Act (Act).2

At the hearing before the Referee, the parties agreed to bifurcate the case so that it could first be determined whether Claimant was an employee of the Courier at the time he was injured. After hearing testimony from both parties, the Referee made the following pertinent findings of fact:

5. At the time of taking over the paper route, the claimant reported to the Defendant’s Promotion Director and was, basically, interviewed and instructed in the duties and responsibilities that were expected of him by the Defendant, as well as by the customers being served. Each paper boy is assigned a certain area, or route, within which he delivers newspapers to customers.
6. There was no written contract or agreement between the Defendant and any paper boy.
9. The Defendant supplies and delivers newspapers to a designated drop point selected by the carrier. In this case, the claimant’s newspapers were delivered, along with newspapers for other carriers in the city, to Urban’s Gas Station. The newspapers were picked up by the claimant and the paper boys, and they then proceeded to deliver the newspapers.
10. The Defendant supplied the bag in which the newspapers were carried, but there was no uniform, or dress code for any paper boy.
11. Newspapers were delivered six (6) days per week, and the carrier paid 5 cents for each newspaper delivered, on a daily basis. Carriers were paid by check mailed to them every two weeks.
*8012. Customers paid the Defendant directly for the newspapers; and the carrier did not handle any money. The carrier, or news boy, did not have the right to increase or decrease the price of the newspaper.
13. The Defendant paid the carrier an extra $1.00 every two (2) weeks for good service, and 50 cents was deducted for any customer that was “missed”, with no delivery.
14. The Defendant delivered newspapers to the drop point at approximately 2:45 p.m.; and the paper boy was expected to deliver the newspaper to the customer no later than 6:00 p.m.
15. The paper boy determined the manner in which he delivered the newspaper; by foot, bicycle, or other vehicle. The paper boy was not reimbursed for any expense of equipment or materials used in delivery.
16. The claimant determined his own route of travel; and controlled the means of accomplishing the delivery of the newspaper.
17. Very little skill or instruction was required to deliver the newspapers in question.
18. The claimant would deal directly with the customer to obtain instructions as to where to leave the newspaper at the customer’s home or place of business.
19. The Defendant exercised no day to day supervision over the claimant, or any other paper boy.
20. The Defendant did not fix the claimant’s working hours, other than the newspapers were expected to be delivered prior to 6:00 p.m. so that the customers received “news, not history”.
21. The claimant, himself, determined when or at what hour he would deliver the newspapers, within the recommended time frame of 2:45 p.m. to 6:00 p.m., so as to maintain customer satisfaction.
22. The claimant was free to substitute another person to deliver the newspapers without notice or prior approval by the Defendant.
*8123. The Defendant did not direct the manner and way that the claimant carried out the delivery of the newspapers in question.
24. The claimant and other paper boys were permitted and encouraged to solicit customers within their area, so as to increase their earnings.
25. If a customer requested the Defendant to deliver a newspaper to his home, and that home was located within the claimant’s delivery area, the Defendant would notify the claimant of the new customer; and the claimant would handle the delivery of that newspaper.
26. The Defendant did not withhold any taxes or other charges from the claimant’s pay; and the claimant was not treated as one of the Defendant’s regular employees, as far as benefits, etc., were concerned.
27. The newspaper masthead contained a notice that if any customer had a service problem, to call the Circulation Department; and any complaints on delivery or service were made by the customer directly to the Defendant.
28. In the event of customer dissatisfaction, or other cause shown, the Defendant had the right to dismiss or fire the claimant or any other paper boy, if that paper boy did not remedy the situation that prompted the complaint.

Based on these findings, the Referee found that the Courier did not have any right to control Claimant’s performance of his duties and did not exercise any control over the manner in which he performed those duties. As such, Claimant had failed to meet his burden of proving by credible evidence that he was an employee of the Courier at the time he was injured. Claimant filed an appeal with the Board, arguing that the evidence demonstrated that he was an employee of the Courier at the time he was injured, not self-employed. The Board affirmed the Referee’s decision and this appeal followed.3

*82The sole issue before us is whether Claimant was an employee of the Courier or an independent contractor at the time he was injured for purposes of collecting workmen’s compensation benefits. Initially, we note that in order to qualify for workmen’s compensation benefits, a claimant has the burden of establishing that an employment relationship existed at the time of the injury and that the injury was related to the employment.4 Sixmo v. Workmen’s Compensation Appeal Board (Dileo’s Restaurant, Inc.), 137 Pa.Commonwealth Ct. 487, 586 A.2d 1008 (1991). Whether a claimant is an independent contractor or an employee is a question of law fully reviewable by this court. Lynch v. Workmen’s Compensation Appeal Board (Connellsville Area School District), 123 Pa.Commonwealth Ct. 299, 554 A.2d 159 (1989), petition for allowance of appeal denied, 525 Pa. 629, 578 A2d 416 (1990).

In Hammermill Paper Company v. Rust Engineering Co., 430 Pa. 365, 370, 243 A.2d 389, 392 (1968), our Supreme Court set forth the following factors to consider when determining the type of relationship which exists:

• control of the manner in which 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 alleged employer, and
*83•whether the alleged employer has the right to terminate the employment at any time.

Because each case is fact specific, all of these factors need not be present to determine the type of relationship which exists. J. Miller Co. v. Mixter, 2 Pa.Commonwealth Ct. 229, 277 A.2d 867 (1971).

While all of these factors are important indicators, the key element is whether the alleged employer has the right to control the work to be done and the manner in which it was performed. North Penn Transfer, Inc. v. Workmen’s Compensation Appeal Board (Michalovicz), 61 Pa.Commonwealth Ct. 469, 434 A2d 228 (1981). If the alleged employer has this right, an employer-employee relationship likely exists. Douglas v. Workmen’s Compensation Appeal Board (Dennis Truck Company), 40 Pa.Commonwealth Ct. 101, 396 A.2d 882 (1979).

In this case, Claimant contends that the Courier exercised such control over his work so as to make him an employee of that newspaper. He points out that the Courier delineated his territory, supplied the names and location of the customers, and controlled the time by which the papers had to be delivered. Specifically, the papers were placed at the pickup point at 2:45 p.m., he did not get out of school until 3:00 p.m., and the papers had to be delivered by 6:00 p.m. As such, he had a limited time to deliver the approximately 50 papers that he delivered. Further, because the Courier could terminate him at any time, it controlled his employment status and made him an employee at will.

As to other important factors indicating an employer-employee relationship, Claimant advises us that the newspapers and his delivery bag, the only equipment required for the job — were supplied by the newspaper, not him. If he were an independent contractor, he would have been required to purchase the papers for resale and supply his own bag. Additionally, payments from customers were made directly to the Courier, thereby taking away from him any responsibility for collecting and turning in the payments of the papers. Further, he was paid by the Courier every two weeks rather than *84on a piecemeal basis, which indicated that he was treated like an employee rather than an independent contractor.5 Similarly, because the Courier permitted him to purchase accident insurance through its insurance carrier and essentially was being provided a benefit by the Courier, that too was an indication that he was an employee.6

The Courier responds that it did not control either Claimant’s work or the manner of his performance, but only the result. In arguing that Claimant was essentially acting as a delivery service such as UPS or Federal Express, it points out that Claimant was only told to deliver the papers by 6:00 p.m., so that customers received “news” rather than “history,” but he was never directed otherwise as to the time or mode of delivery or the route travelled. More specifically, he was not told when he should begin delivering papers, or if he should walk, ride a bicycle, or use a vehicle to deliver his papers. He also was not reimbursed for the expense of any equipment he chose to use in delivering the papers. Additionally, he was not told by the Courier where to place the papers, but instead dealt directly with the customers who gave him instructions if the paper should be left at their home or office.

Claimant also determined the drop-off point of the newspapers and the Courier had no further intervention regarding the delivery of the papers after that point. Importantly, his work was never supervised and he was never required to come *85down to the Courier to report about his work.7 Regarding other factors, the Courier explains that because Claimant could solicit new customers without permission from the Newspaper, he was an independent businessman able to increase his revenues by expanding his area of operation. Also, social security payments and taxes were not withheld from Claimant’s pay as would be required if he were an employee.8

Balancing these factors, we believe that the Courier did not exercise sufficient control over Claimant’s work and the manner in which it was performed. As the Referee found, Claimant’s work was not controlled in such specific detail that his relationship with the Courier could be called anything but a contract for delivery of service. This becomes even more evident when two additional factors relating to control are considered — that the Courier did not prohibit Claimant from carrying competing newspapers or require Claimant to provide the Courier with notice or get prior approval when he wished to substitute another person to deliver the papers.

The Circulation Manager testified that the Courier’s carriers could deliver competing newspapers such as the Clearfield “Progress” and DuBois “Courier” while delivering its newspaper, (Reproduced Record at 75a.), and Claimant’s testimony *86supported that this was the Courier’s policy.9 By allowing the carriers to carry competing papers, the Courier was not controlling its carriers’ actions because the carriers alone could determine whether they would carry one, two or three different newspapers — thus, determining to whom they would provide a delivery service. As with all delivery services, the company contracting for the delivery service has no control over the carrier and how it performs its work, but only the result which is to have the goods delivered. This situation is no different.10

Similarly, regarding the substitution of employees, the Newspaper’s Program Director as well as Claimant testified that he was permitted to substitute a person to deliver his papers without giving the Courier notice or receiving prior approval. (Reproduced Record at 56a, 60a, 119a, 121a.) This, too, is an indicator that Claimant was an independent contractor because it shows that the Courier had no control over anyone Claimant chose to replace him on a given day.11 Claimant argues, though, that this is not an important factor because in this case, the Courier could fine Claimant .50 cents per paper or terminate Claimant if an inadequate substitution was provided and the papers were not delivered. To the *87contrary, we believe it shows that the relationship was that of an independent contractor requiring that Claimant get the job done as opposed to an employment relationship.12

Employees are generally not empowered with hiring other personnel. If they were, the employer would then have sub-employees which it did not hire, was not aware of, and of which it had no control. Employees also are not empowered to pay other personnel. Because Claimant was permitted to do his own hiring, so to speak, and he paid his substitute rather than the Courier,13 he was an independent contractor rather than an employee.

Consequently, because the Courier did not control Claimant’s work and the manner in which it was performed, Claimant was not an employee of the Courier at the time he was injured. Accordingly, the decision of the Board is affirmed.

ORDER

AND NOW, this 23rd day of August, 1993, the order of the Workmen’s Compensation Appeal Board dated January 28, 1992, No. A91-1992, is affirmed.

. This case was reassigned to the author on May 11, 1993.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1031.

. Our scope of review is limited to determining whether constitutional rights have been violated, an error of law committed, or whether necessary findings of fact are supported by substantial evidence. Blue Bell Printing v. Workmen’s Compensation Appeal Board (Montgomery *82Publishing Company), 115 Pa.Commonwealth Ct. 203, 539 A.2d 933 (1988).

. Pursuant to Section 104 of the Act, 77 P.S. § 22, an employee is defined as a person who performs services for another for a valuable consideration, exclusive of those whose employment is casual in character and not in the regular course of the business of the employer.

. Claimant also notes that the Courier would pay him a $1.00 bonus every two weeks for good service, but would deduct .50 cents each time he failed to deliver a paper to a customer.

. The Circulation Manager for the Courier testified as follows regarding Claimant’s accident insurance:

Q. What's this insurance that you're talking about? Does he have the option, or is this a fringe benefit available to all carriers?
A. He had the option to buy it; it was taken out of his check; he had to pay so much each month of it outright.
Q. Well, was it life insurance; accident insurance?
A. It was accident insurance.
Q. Sickness, or just accident?
A. It was accidents that occur upon the route, or actually they were covered on an off the route at that time, but was accident insurance; if broke an arm, leg or whatever.

(Reproduced Record at 86a, 87a.)

. The Courier directs our attention to our holding in Douglas where we determined a truck driver was an independent contractor rather than an employee based on similar factors set forth in this case. “It appears that the only indicia of an employment relationship was the fact that the Defendant would have told the Claimant when and where to deliver the materials had he been able to load them on his truck. In all previous assignments of this nature, Claimant was paid by Shempf on a commission basis, he determined his own routes of travel, and he controlled the means of accomplishing the delivery of good.” Id. 40 Pa.Commonwealth Ct. at 103, 396 A.2d at 883.

. The Courier also asks us to examine the only two Pennsylvania cases which have addressed the status of a newspaper carrier and have found an independent contractor relationship existed. However, in both Balinski v. Press Pub. Co. et al., 118 Pa.Superior Ct. 89, 179 A. 897 (1935) and Rodgers v. P-G Publishing Co., 194 Pa.Superior Ct. 207, 166 A.2d 544 (1960), the court heavily relied on the fact that the carriers purchased the papers themselves and then resold them to customers at a price they set, making a profit on the difference between their purchase and sales price. However, we are not going to rely on either of those cases because this is not a situation involving a sale for resale of newspapers, but rather involves an agreement for delivery service.

. Q. Did — was there any restriction against your delivering another newspaper like the "Pittsburgh Post-Gazette” or something like that?

A. Well, we were just assigned the “Courier-Express” right there; they wouldn’t let us deliver the “Pittsburgh Press”. Well, I could have delivered the "Pittsburgh Press” on Sundays.
Q. You could, or could not?
A. I could, if I wanted to.

(Reproduced Record at 56a, 57 a.)

. Other states which have addressed this identical issue have determined that an independent contractor relationship exists when the carrier is permitted to carry a competitor’s newspaper. See Taylor v. Industrial Accident Commission, 216 Cal.App.2d 466, 30 Cal.Rptr. 877 (1963) and Janice v. Hondzinski, 176 Mich.App. 49, 439 N.W.2d 276 (1989).

. It is true that when Claimant took over his sister’s route, they both went to the newspaper and a Courier employee interviewed him and provided him with instructions regarding his responsibilities. However, we do not believe that this is indicative of an employer-employee relationship. Claimant went to the newspaper offering his delivery service which the newspaper agreed to.

. See also The Miami Herald Publishing Company v. Kendall, 88 So.2d 276 (1956), where the Supreme Court of Florida determined that the newspaper carrier was an independent contractor because he was selected and was responsible for his substitute.

. Claimant testified that on several occasions, a substitute delivered his papers and he paid her directly. (Reproduced Record at 56a.) The Courier’s Program Director also testified that payment by the carrier to the substitute was made without the Newspaper’s knowledge. (Reproduced Record at 119a.)