Hawbaker v. Workers' Comp. Appeal Bd.

159 A.3d 61

Justin L. HAWBAKER, Petitioner

v.WORKERS' COMPENSATION APPEAL BOARD (KRINER'S QUALITY ROOFING SERVICES AND UNINSURED EMPLOYER GUARANTY FUND), Respondents

No. 224 C.D. 2016

Commonwealth Court of Pennsylvania.

Submitted on Briefs: July 22, 2016

Filed: February 13, 2017

Publication Ordered May 10, 2017

Anthony J. Cosentino, Chambersburg, for petitioner.

Jens C. Wagner, Greencastle, for respondent Kriner's Quality Roofing Services.

Peter Von Getzie, Deputy Chief Counsel, Harrisburg, for amicus Bureau of Labor Law Compliance.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY PRESIDENT JUDGE LEAVITT

Justin L. Hawbaker (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying his claim petitions. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant was an independent contractor and not an employee of Shawn Kriner d/b/a Kriner's Quality Roofing Services (Kriner). On appeal, Claimant contends that the Board erred. He contends that in spite of his written contract with Kriner that identified Claimant as an independent contractor and required him to carry liability insurance in the amount of $50,000, he was actually an employee of Kriner. Accordingly, Claimant asserts that he is entitled to workers' compensation for the injuries he sustained when he fell from a roof. Discerning no merit to these arguments, we affirm the Board.

Background

On November 19, 2013, Claimant was injured when he fell off a roof. On December 16, 2013, Claimant filed a claim petition under the Workers' Compensation Act (Act)¹ seeking compensation for fractures to his leg and vertebrae. Thereafter, on January 7, 2014, Claimant filed another claim petition naming Kriner and the Uninsured Employers Guaranty Fund as defendants.²

Before the WCJ, Claimant testified about his work for Kriner, a company that specializes in residential roofing jobs. Claimant testified that his work took "some kind of skill." Notes of Testimony (N.T.), 3/26/2014, at 13; Reproduced Record at 24a (R.R. __). Claimant explained that Shawn Kriner told him "where to start the job, what needed to be done on the job, when [he] was allowed to take lunch, [and] when [he] was allowed to leave." Id. at 14; R.R. 25a. Claimant either drove himself to the job site or rode with Kriner. At these jobs Claimant used his personal tools, such as a tear-off shovel to remove shingles, hammer and a nail gun. He also used ladders and nails provided by Kriner.

When Claimant started working for Kriner in 2011, he was compensated on an hourly basis. In January 2012, he signed a contract entitled "Independent Contractor Agreement." In December 2012, Claimant acknowledged that he "stopped showing up, stopped calling." Id. at 46; R.R. 57a. Claimant attributed his absences to his substance abuse problems.

In March 2013, Claimant contacted Kriner about returning to work. Kriner required Claimant to obtain liability insurance and provide proof of that insurance before he could start working on any Kriner jobs. An addendum to the 2012 contract provided for Claimant to be paid by assigned task. Claimant explained that he was paid $15.00 to $25.00 a square (10' x 10' area) when removing a roof and $5.00 a bundle, or $15.00 a square, to install a roof. Each week Kriner advised Claimant where the roofing assignments would take place. Claimant did roofing jobs only for Kriner.

On November 19, 2013, Claimant was standing on the roof of a bay window when he reached for a caulking gun and fell. Claimant landed on his feet with the left side of his body taking the brunt of the fall, causing injuries to his knee and leg. Claimant was taken to Hershey Medical Center, where he was diagnosed with a left lateral tibial plateau fracture. On November 20, 2013, he underwent open reduction and internal fixation of his fracture. Subsequently, Claimant has developed pain across his lower back.

On cross-examination, Claimant acknowledged that the January 2012 contract was not terminated in writing. He also acknowledged that his application for liability insurance identified his business name as "Justin L. Hawbaker, I" and provided a business address. Finally, Claimant acknowledged that he did not notify Kriner when his liability insurance lapsed.

Kriner testified about the January 2012 contract for Claimant's roofing and general labor services. The contract had an indefinite duration, subject to termination by either party with 30 days written notice. It provided compensation at $17.50 per hour. In 2013, the compensation terms changed, as Kriner explained:

Hourly rate for any repairs or simple labor was at $15.00 an hour. If doing tear off, if chosen to do any tear off, it's $15.00 per square, which is a ten foot by ten foot section. $5.00 per roofing square for ground cleanup. $5.00 per roofing square to water tighten that's to lay the underlayment and the felt moisture guard.

$5.00 per bundle of shingles if you're laying shingles. And $10.00 per bundle of cap shingles, which goes at the peak of the roof.

N.T., 5/22/2014, at 35; R.R. 112a. Kriner explained that the contract does not preclude the independent contractor from working for other contractors or on his own; further, the contract requires the independent contractor to secure general liability insurance. At the end of the year, Kriner issues a Form 1099 to each subcontractor.

Kriner explained that at the job site, he and the subcontractors discuss the work to be done and divide it up by discrete task. The subcontractors are roofers who know how to do these tasks. The manufacturer's package of shingles provides the specific instructions on their installation. Kriner inspects the quality of work of the subcontractors. If he discovers a problem with the work, the subcontractor must correct the problem without additional compensation.

On cross-examination, Kriner explained that in December 2012, he spoke to Claimant about his lack of reliability. Claimant stopped showing up at job sites without explanation. When Claimant did appear, he behaved erratically. Kriner stopped calling Claimant. After several months, Claimant contacted Kriner and stated that he had gotten the help that he needed. Kriner did not allow Claimant to return to roofing job sites until he provided proof of liability insurance. Claimant provided his own tools, but he was also allowed to use Kriner's tools and equipment.

WCJ Decision

The WCJ found that Claimant did not establish an employer/employee relationship as of the date of his injury. Rather, the "evidence demonstrate[d] the Claimant was customarily engaged as an independent roofing contractor." WCJ Decision, 1/22/2015, at 5. In support, the WCJ made several critical findings of fact:

7. [ ] Claimant agreed the roofing work requires skill. He further testified a lot of it is labor intensive involving tearing off shingles and replacing wood. [ ]

8. [ ] Claimant testified he brought his own tear off shovel to the job as well as an air hose and nail gun. He used [ ] Kriner's air compressor and ladder on [Kriner's] jobs. [ ] In later testimony [ ] Claimant testified he owned his own hammer, tape measure, metal snips, shingle shears, utility knife, chalk boxes, caulking gun, speed square, hand saw, shingle extraction shovel, seam roller, roofing coil nail guns, and air hoses. [ ]

9. ... On his personal Facebook page [ ] Claimant lists his work as independent roofing contractor. [ ] Claimant testified that in 2011 or 2012 he had to sign a contract to work for [Kriner]. The Independent Contractor Agreement is dated January 16, 2012. [ ] Claimant also was required by an Amendment to the Independent Contractor's Agreement to obtain general liability insurance. [ ]10. [ ] Claimant's insurance policy lists [ ] Claimant's business name as Justin L. Hawbaker, I. [ ]

Id. at 3–4. The WCJ explained that Claimant was customarily engaged as an independent roofing contractor because he possessed the tools and a vehicle suitable for performing the work; he could be required to repair his work without additional remuneration; and he was required to maintain an insurance policy for general liability insurance in excess of $50,000. Id. at 5. Further, Claimant testified that he did the same or similar business with C & J and Dean's Contracting. Id.

The WCJ credited Kriner's testimony in its entirety. The WCJ credited Claimant's testimony about his work with Kriner, but he did not credit Claimant's stated belief that he was an employee, as such belief was against "the weight of the evidence." Id. The WCJ denied Claimant's claim petitions against Kriner and the Uninsured Employer Guaranty Fund.

Board Adjudication

Claimant appealed to the Board, arguing that the WCJ erred in finding that he was an independent contractor. The Board affirmed the decision of the WCJ, concluding that Claimant did not establish that he was an employee of Kriner when he had his accident on November 19, 2013. The Board explained that a "claimant bears the burden of establishing an employer/employee relationship in order to receive benefits," and "[a]n independent contractor is not entitled to benefits...." Board Adjudication, 1/28/2016, at 3.

The Board observed that, in October 2010, the legislature passed the Construction Workplace Misclassification Act,³ "which set forth guidelines for classification of independent contractors in construction." Id. Section 3 of the Misclassification Act,⁴ 43 P.S. § 933.3, sets forth the criteria for determining whether an individual is an independent contractor, which, the Board noted, "track many of the traditional workers' compensation considerations for determining direction and control." Board Adjudication at 3. The Board concluded, based upon its review of the record, that the WCJ correctly applied the terms of the Misclassification Act in concluding that Claimant was an independent...