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HomeMy WebLinkAbout13-0376t "V t 1 ?. !ei 1 ., :?. nil dd? Johnson, Duffie, Stewart & Weidner By: Wade D. Manley, Esquire I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT & INDUSTRY UNINSURED EMPLOYERS GUARANTEE FUND, Plaintiff V. JEFF TRIMMER d/b/a JEFF TRIMMER TREE SERVICE. Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2013-376 PRAECIPE TO STRIKE OFF JUDGMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pursuant to Section 428 of the Pennsylvania Workers' Compensation Law, 77 P.S. §932, attached is a certified copy of the disallowance of compensation in the form of an opinion of the Workers' Compensation Appeal Board, Case Number A11-1822, confirming that the Defendant, Jeff Trimmer d/b/a/ Jeff Trimmer Tree Service, was not the employer of the Claimant A copy of §428 of the Pennsylvania Workers' Compensation Law, 77 P S. §932, is attached hereto and states that "It shall be the duty of such Prothonotary to strike off the judgment" in such circumstances. JOHNSON, DUFFIE, STEWART & WEIDNER By: ? Get 1 Z41 Wade D. Manley, Esquire Attorney I.D. No. 87244 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant DATE: (/Jeff Trimmer d/b/a Jeff Trimmer Tree Service '? If 3 536017 09098-4 --"tk 40 AND NOW, this P day of _ , 2013, the lien entered on in the captioned matter is hereby stricken pursuant to Section 428 of the Pennsylvania Workers' Compensation Law, 77 P.S. §932. ??? Prothonotary WORKERS' COMPENSATION APPEAL BOARD CAPITOL ASSOCIATES BUILDING 901 N. 7th STREET, 3RD FLOOR SOUTH HARRISBURG, PA 17102-1412 (717) 783-7838 DAKTARI GARCIA V. JEFF TRIMMER TREE SERVICE Case Number; A11-1821 Opinion Mailing Date: 9/4/2012 Attached is a copy of an Opinion from the Workers' Compensation Appeal Board filed this date in the above-captioned case. An appeal to the Commonwealth Court of-Pennsylvania may be taken by any party aggrieved by the Board's decision, provided such appeal is taken within (30) days after the mailing date of the :Board's decision. The Board has nothing to do with the filing or processing of further appeals to the Court. Further appeals may be filed in person or by mail (accompanied by U.S. Postal Services form 3817) with the :Prothonotary of the Commonwealth Court of Pennsylvania, Suite 2100, 601 Commonwealth Avenue, PO Box 69185, Harrisburg, PA 17106-9185. Attachment Claimant Claimant Counsel(s) DAKTARI GARCIA KARL J. JANUZZI, ESQ. 513 SLACEMAN DRIVE 2225 MILLENNIUM WAY NEW CUMBERLAND, PA 17070 ENOLA, PA 17025 t3efendant(s) JEFF TRIMMER TREE SERVICE 522 MOORES MOUNTAIN ROAD MECHANICSBURG, PA 17055 Insurance Carrier(s) Defendant Counsel(s) WADE D. MANLEY, ESQ. P.O. BOX 109 LEMOYNE, PA 17043 UEGF ACS CLAIMS SERVICE P.O. BOX 1774 P.O. BOX 257 HARRISBURG, PA 17105 MECHANICSBURG, PA 17055 Commonwealth ERICH M. DIEHL, ESQ. BWC-LEGAL DIVISION RM 327, 1171 S CAMERON ST HARRISBURG, PA 17104 WORKERS' COMPENSATION APPEAL BOARD CAPITOL ASSOCIATES BUILDING 901 N. 7th STREET, 3RD FLOOR SOUTH HARRISBURG, PA 17102-1412 (717) 783-7838 ' DAKTARI GARCIA V. JEFF TRIMMER TREE SERVICE Case Number: A11-1821 Opinion Date: 09/04/2012 Claimant Claimant Counsel(s) Filed By: Commonwealth/Defendant DAKTARI GARCIA KARL J. JANUZZI, ESQ. 513 SLACEMAN DRIVE .2225 MILLENNIUM WAY NEW CUMBERLAND, PA 17070 ENOLA, PA 17025 From Order of. JUDGE DAVID P. WEYL REVERSED OPINION Defendant s) Insurance Carrier(s) Defendant Counsel(s) JEFF TRIMMER TREE SERVICE WADE D. MANLEY, ESQ. 522 MOORES MOUNTAIN ROAD P.O. BOX 109 MECHANICSBURG, PA 17055 LEMOYNE, PA 17043 UEGF ACS CLAIMS SERVICE P.O. BOX 1774 P.O.. BOX 257 HARRISBURG, PA 17105 MECHANICSBURG, PA 17055 Commonwealth ERICH M. DIEHL, ESQ. BWC-LEGAL DIVISION RM 327, 1171 S CAMERON ST HARRISBURG, PA 17104 A11-1821 & 1822 Page 2 OPINION McINTYRE, COMMISSIONER: Jeff Trimmer Tree Service (Defendant) and the Commonwealth of Pennsylvania appeal from the Decision and Order of the Workers' Compensation Judge (Judge) granting a Claim Petition for Workers' Compensation Benefits (Claim Petition) and a Claim Petition for Benefits from the Uninsured Employer Guaranty Fund and Uninsured Employer (UEGF Claim Petition) fled by Daktari Garcia (Claimant). We :reverse. On June 24, 2010, Claimant filed a Claim Petition alleging that on June 8, 2010 he sustained a work-related injury in the nature of a dislocated left shoulder. On August 27, 2010, Claimant filed a UEGF Claim Petition. Defendant and UEGF filed Answers denying the material averments of the petitions. The :petitions were consolidated and the litigation was bifurcated by agreement. By an interlocutory decision and order circulated on March 9, 2011, the Judge concluded that there was an employer-employee relationship between Claimant and Defendant. At the close of the evidence, the Judge found that Claimant was an employee of Defendant with an average weekly wage of $480,00. The Judge found that Claimant was totally disabled from June 8, 2010 through January 11, 2011, and partially disabled thereafter. Accordingly, he granted both petitions. Defendant and UEGF appeal. Our scope of review is limited to determining whether there is substantial, competent evidence to support necessary findings of. fact made by the workers' compensation judge and whether the workers' compensation judge committed an error of law. Bethenerav Mines v WCAB (Skirpan), 612 A.2d 434 (Pa. 1992). We are bound A11-1821 & 1822 Page 3 by the findings of the workers' compensation judge unless there is no competent evidence of record to support those findings.' Id. The Board functions as an appellate body and its role is not to reweigh evidence or review the credibility of witnesses, but only to determine whether, upon consideration of the evidence as a whole, the judge's findings have sufficient support in the record. Lehigh County Vo-Tech School v WCAB (Wolfe), 652 A.2d 797 (Pa. 1995). Defendant and UEGF argue that Claimant is not eligible for workers' compensation benefits because his employment was casual. We agree. It is the claimant's burden to establish all elements of his claim. Inglis House v. WCAB (Reedy), 535 Pa. 135, ,634 A.2d 592 (1993). The claimant must show that he was disabled by an injury sustained in the course and scope of employment. Innovative Spaces v. WCAB (DeAngelis),, 646 A.2d 51 (Pa. Cmwlth. 1994), appeal denied, 663 A.2d 696 (Pa. 1995). Accordingly, he must prove an employer-employee relationship. Universal Am-Can Ltd v WCAB (Minteer), 762 A.2d 328 (Pa. 2000). Whether an employment relationship exists is a question of law, fully reviewable by the Board, which must be based upon facts of record. Martin Trucking Co. v. WCAB, 373 A.2d 1168 (Pa. Cmwlth. 1977). Section 104 of the Workers' Compensation Ace (Act) provides in pertinent part: The term "EMPLOYE," as used in this act is declared to be synonymous with servant, and includes- 'In performing a substantial evidence analysis, the evidence, and every reasonable inference deducible from the evidence, must be viewed in the light most favorable to the prevailing party. WaWa v. WCAB Seltzer 951 A.2d 405 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence to support findings other than those made by the workers' compensation judge; the critical inquiry is whether there is evidence to support the findings actually made. Hoffmaster v. WCAB (Senco Products. Inc.), 721 A.2d 1152 (Pa. Cmwlth. 1998). 2 Act of June 2, 1915, P.L. 736, as amended. 77 P.S. §§ 1-1041.4; 2501-2708. A11-1821 & 1822 Page 4 All natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer .... 77 P.S. §'22. If the claimant establishes an employment relationship, the defendant has the burden to establish that the employment is both casual and not in the defendant's regular course of business. Gill v. WCAB, 425 A.2d 1206 (Pa. Cmwlth. 1981). Employment is casual where it is occasional, 'irregular or incidental, as opposed to regular and continuous. Brookhaven Baptist Church v WCAB (Halvorson), 912 A.2d 770 (Pa. 2006). Employment is not casual if the need for the work recurs with a fair degree of frequency and regularity, and there is an understanding that the employee is to perform such work as the necessity arises. Even if there is only a single or special job involved, the employment is not conclusively casual. If the work is a planned project and the employment is of a fairly long duration, the employment is not casual. Cochrane v. William Penn Hotel, 16 A.2d 43 (Pa. 1940). Employment is casual if it "comes about by chance, fortuitously, and for no fixed duration of time." Blake v. Wilson, 112 A. 126, 129 (Pa. 1920). The phrase "the regular course of the business of the employer" refers to the normal operations which regularly constitute the business in question. Callihan v. Montgomery, 115 A. 889 (Pa. 1922). Whether the employment is casual and not in the regular course of the employer's business is also a question of law. Brookhaven Baptist Church. Claimant testified that he began working for Jay Trimmer Tree Service around 2003. He met Jeff Trimmer when they both worked for Jay Trimmer. (N.T. 12/20/10 at p. 11). Claimant worked as a laborer, doing anything except cutting the big trees down. A11-1821 & 1822 Page 5 Id. at p. 18). He testified that Jay Trimmer didn't have work for him, and Jeff Trimmer offered him work so he started working for Jeff Trimmer. (ld. at. p. 34). Claimant's first day of work for Jeff Trimmer was June 3, 2010. (ld. at p. 31). He stated that at the end of each workday, Jeff Trimmer asked him if he was coming in the next morning and gave him a starting time. (Id. at p. 40). Claimant further testified that Jeff Trimmer didn't really tell him how long he would have work for him. He assumed that he would be working as long as Jeff Trimmer had work available. (Id. at pp. 46-47). On the date of injury, Claimant started the day at Jeff Trimmer's house. The job was finished around 12:30 or 1:00 p.m. Claimant returned to Jeff Trimmer's house and started working on a shed on Jeff Trimmer's property. (Id. at pp. 19-20). He stated that Jeff asked him to help Jeffs son, John, put shingles on the shed roof. (Id. at p. 20). Claimant was paid $12.00 an hour to work on the roof. (Id. at p. 59). He testified that they had just started to put the shingles_on when his right foot slipped. Claimant grabbed with his left arm to keep from falling and his shoulder popped out. (Id. at p. 21). John Trimmer took him home and he went to the hospital from there. (ld. at pp. 22-23). Jeff Trimmer testified that he was self-employed as Jeff Trimmer Tree Service, which was separate and apart from his father's business, Jay Trimmer Tree Service. (N.T. 12/20/10 at pp. 64-65). The business was a sole proprietorship. (Id. at p. 92). He did shrubbery work and tree trimming and sometimes cleaned gutters. (Id. at p. 78). Jeff Trimmer stated that he usually had one employee at a time, usually his sons or his brother-in-law. Id. at pp. 65-66). He further testified that Claimant worked for him on June 3, 4, 6, and 8, 2010. (Id. at p. 68). He explained that his son, John, got a A11-1821 & 1822 Page 6 "Mohawk" haircut and he would not allow John to 0 out on jobs looking like that, so he called Claimant and asked Claimant to work with him a couple days. At that time he had two shrubbery jobs to do. Id. at p. 69). Jeff Trimmer stated that he only needed Claimant until John's hair grew back, and that he didn't give Claimant any indication how long Claimant would be working because he didn't know how long the jobs were going to last. (Id. at pp. 75, 88). He did not expect to keep Claimant on after those jobs were completed. (Id. at p. 88). The job on June 8 took about 5 hours. (N.T. 12/20/10 at p. 76). Mr. Trimmer stated that he asked Claimant if he wanted to make some extra money by helping John work on the shed for the same pay rate as he was getting on the job. (Id. at p. 77). He further stated that Jeff Trimmer Tree Service did not do any roofing work. (Id. at p. 78). The shed belonged to John and was not being built for profit. (Id. at p. 90). John Trimmer testified that he was employed by his father in the spring and summer of 2010. (N.T. 12/20/10 at p. 93). He stated that he worked for his father a couple times week, when needed, and that he had worked with Claimant for Jay Trimmer. (Id. at p. 94). John Trimmer further testified that around the first or second of June 2010, his sister gave him a "Mohawk" haircut. His father, Jeff Trimmer, didn't think he was presentable for customers so Jeff Trimmer asked Claimant to work for him. (Id. at pp. 96-07). John Trimmer testified that he was building the shed for himself, to store a dirt bike, not for Jeff Trimmer Tree Service. (Id. at p. 95). He stated that he had worked with his father since he could walk, and that Jeff Trimmer Tree Service had not, to his knowledge, done any roofing work during that time. (Id. at pp. 99-100). A11-1821 & 1822 Page 7 The Judge found Claimant's testimony to be credible. He found Jeff Trimmer's testimony to be credible, with the exception of his testimony regarding his expectation to employ Claimant only for two jobs. He found John Trimmer's testimony to be credible-to the extent that it supported an employer/employee relationship between Claimant and Jeff Trimmer Tree Service. The Judge has complete authority over questions of credibility, . conflicting medical evidence and evidentiary weight. Sherrod v. WCAB f Thorouahgood Inc.), 666 A.2d 383 (Pa. Cmwlth. 1995). The Judge is free to accept or reject, in whole or in part, the testimony of any witness. Lombardo v. WCAB (Topes Company Inc.), 698 A.2d 1378 (Pa. Cmwlth. 1997). Upon review, we cannot agree that Claimant was an employee of Jeff Trimmer Tree Service at the time of his injury. Claimant's work for Jeff Trimmer Tree Service had already concluded for the day when he was offered and accepted the opportunity to earn extra money helping John Trimmer with the shed roof. The shed was a personal project of John Trimmer, not connected to Jeff Trimmer Tree Service. Therefore, Claimant was hired by Jeff Trimmer, as an individual, to help John Trimmer with a personal project. That employment was incidental, fortuitous, for no fixed period of time and outside Jeff Trimmer's regular course of business and was, accordingly, casual. Brookhaven Baptist Church; Blake. Casual employment is outside the scope of the Act. 77 P.S. § 22. Consequently, we reverse the grant of both petitions.3 We enter the following: 3 UEGF has additionally appealed from the Judge's finding of a $480.00 average weekly wage, argued that 'the Judge erred by failing to determine Claimant's partial disability rate and failing to suspend indemnity-benefits upon Claimant's resignation from his first post-injury job, and requested that the caption of this action be amended to identify Defendant as "Jeff Trimmer d/b/a Jeff Trimmer Tree Service." Our reversal of the grant of the petitions renders these issues moot. A11-1821 & 1822 Page 8 ORDER The Decision and Order of the Workers' Compensation Judge is hereby REVERSED. BY THE BOARD: CONCURRED IN BY: SAP 4- 4 Iml COMMISSIONER COMMISSIONER ?'LexisNexis• 77 P.S. § 932 Pa.C-S. documents are current through 2012 Regular Session Act 147, Enacted October 8, 2012PS. documents are current through 2012 Regular Session Acts 60, 62 to 83, 89, 90, 92, 96, 100, 1-01, 105 to 107, 109 to 111, 115, 117 to 121, 131, 134, 135, 137 and 140 to .142 August 16, 2012 Annotation Service Pennsylvania Statutes Annotated by LexisNexis > PENNSYLVANIA STATUTES > TITLE 77. > CHAPTER 6. > JUDGMENT ON AWARD OR ORDER OF BOARD > DG- MINT ON COMPENSATION AGREEMENT § 932. Disapproval of agreement or petition; striking of temporary -iudement If the agreement be disapproved, or, after hearing, compensation shall be disallowed, the employer may file, with the prothonotary of any county in which the petition or agreement is on record as a judgment, a certified copy of the disapproval of the agreement or disallowance of compensation, and it shall be the duty of such prothonotary to strike off the judgment. Act 1915-338, P.L. 736, § 428, approved June 2, 1915, eff. immediately; Act 1919-277, P.L. 642, § 6, approved June 26, 1919, eff. immediately; Act 1939-281, P.L. 520, § 1, approved June 21, 1939, eff. in 10 days; Act 1945-287, P.L. 671, § 1, approved May 18, 1945, eff. July 1, 1945; Act 1972-61 (S.B. 1048), P.L. 159, § 23, approved Mar. 29, 1972, eff. May 1, 1972. PENNSYLVANIA STATUTES, ANNOTATED BY LEMSNFMSQI WADE MANLEY �t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C-) COMMONWEALTH OF PENNSYLVANIA, c y DEPARTMENT OF LABOR AND INDUSTRY, UNINSURED EMPLOYERS GUARANTY FUND Petitioner NO.: 2013-00376 p6 V. =C1 tr JEFF TRIMMER d/b/a Civil Action - Law `'' JEFF TRIMMER TREE SERVICE Respondent PRAECIPE FOR DISPOSITION OF PETITIONER'S PETITION TO REVIEW THE ACTION OF THE CUMBERLAND COUNTY PROTHONOTARY TO THE HONORABLE JUDGES OF THE CUMBERLAND COUNTY COURT OF COMMON PLEAS: AND NOW, comes the Petitioner, the Commonwealth of Pennsylvania, Department of Labor and Industry, Uninsured Employers Guaranty Fund (UEGF) by Joseph J. Swartz, Assistant Counsel, and files this Praecipe for Disposition of Petitioner's Petition to Review the Action of the Cumberland County Prothonotary, and in support thereof alleges the following: 1 1. On or about February 13, 2013, Petitioner filed with this Court a Petition to Review the Action of the Cumberland County Prothonotary in Striking Petitioner's Judgment against Respondent, Jeff Trimmer d/b/a Jeff Trimmer Tree Service. 2. Concurrently, similar proceedings were underway in the York County Court of Common Pleas, wherein the judgment at issue was originally entered. 3. On or about, February 21, 2013, this Honorable Court issued an Order Preserving Petitioner's Right to Appeal the Action of the Cumberland County Prothonotary and stayed all further proceedings in this matter until the associated litigation in York County was resolved. 4. On or about May 9, 2013, The Honorable Andrea Marceca Strong of the York County Court of Common Pleas issued an order vacating the York County Prothonotary's purported action Striking Petitioner's Judgment against Respondent, and affirmed the October 18, 2012, judgment entered in favor of Petitioner. A copy of said decision is attached hereto as Exhibit A. Accordingly, Petitioner respectfully requests that this Honorable Court now issue a decision and order on the merits of its Petition. 2 Respectfully submitted, ale-,e- a osep J. Swa ssis nt Co Commonwealth of e sylva,i Department of Labor & Industry Bureau of Workers' Compensation 1171 South Cameron Street Harrisburg, PA 17104-2501 (717) 783-4467 Attorney.ID Number: 309233 Dated: May 23, 2013 3 Exhibit A f",BOO 1 DUSTF Y 2013 1'iAT 15 P 12: 13 IN THE COURT OF COMMON K69141%RK COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPT. OF LABOR& INDUSTRY, UNINSURED EMPLOYERS GUARANTY FUND, Plaintiff No. 2012-SU-004422-40 V. �.., CIVIL ACTION- LAW ; JEFF TRIMMER DB/A JEFF TRIMMER TREE SERVICE, Defendant APPEARANCES: Joseph J. Swartz, Esquire for the P.6intiff Wade D. Manley, Esquire for-the Nfendant James Young, Esquire for the Defendant ORDER t AND NOW,this day of May, 2013, upon review of the record before it, this Court vacates the Prothonotary striking the judgment on October 31, 2012 as the Prothonotary erred in striking said judgment. This Court affirms the Judgment entered October 18, 2012 in Ifavor of Plaintiff and docketed to 2012-NO-006237-34. i The Prothonotary is directed to serve copies of this Order upon counsel for the parties, or the parties themselves, if unrepresented, as required by law. So ORDERED. �B AZTH� RTiR ECA STRONG,JU E IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, UNINSURED EMPLOYERS GUARANTY FUND Petitioner NO.: 2013-00376 V. JEFF TRIMMER d/b/a Civil Action - Law JEFF TRIMMER TREE SERVICE Respondent CERTIFICATE OF SERVICE I, Joseph J. Swartz, Esquire, do hereby certify that this Praecipe for Disposition of Petitioner's Petition to Review the Action of the Cumberland County Prothonotary was served this 23rd day of May, 2013, upon the following by mailing a true and correct copy of the same in the United States Postal Service, postage prepaid, addressed to the following: Re: Commonwealth of Pennsylvania, Uninsured Employers Guaranty Fund v. Jeff Trimmer d/b/a Jeff Trimmer Tree Service Civil Action—Law—Lien Docket No.: 2013-00376 Counsel for Respondent—Jeff Trimmer d/b/a Jeff Trimmer Tree Service James Young, Esq. James, Smith, Dietterick, and Connelly, LLP P.O. Box 650 Hershey, PA 17033 i f foseph J. Swa ssistan Counse Commonwealth sylvani Department of Labor & Industry Bureau of Workers' Compensation 1171 South Cameron Street Harrisburg, PA 17104-2501 (717) 783-4467 Attorney ID Number: 309233 , Dated: May 23, 2013