Kreschollek v. Workers' Comp. Appeal Bd.

201 A.3d 916

Zachary KRESCHOLLEK, Petitioner

v.WORKERS' COMPENSATION APPEAL BOARD (COMMODORE MAINTENANCE CORP.), Respondent

No. 297 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued November 13, 2018

Decided January 7, 2019

Meghan P. McCormack, Philadelphia, for petitioner.

Barak A. Kassutto, Eagleville, for respondent.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE McCULLOUGH

Zachary Kreschollek (Claimant) petitions for review of the February 14, 2018 order of the Workers' Compensation Appeal Board (Board) affirming the decision of the workers' compensation judge (WCJ) denying and dismissing Claimant's claim petition for lack of jurisdiction.

Facts and Procedural History

The underlying facts of this case are not in dispute. The Benjamin Franklin Bridge spans the Delaware River and connects the cities of Philadelphia, Pennsylvania and Camden, New Jersey. The Benjamin Franklin Bridge is owned by the Delaware River Port Authority (DRPA), which in turn was created via a compact between Pennsylvania and New Jersey.¹ Pursuant to this compact, both Pennsylvania and New Jersey are recognized as joint owners of the bridge. The DRPA serves as a regional transportation agency that oversees four bridges that span the Delaware River between Pennsylvania and New Jersey, including the Benjamin Franklin Bridge.² In mid-2014, the DRPA began work on the Benjamin Franklin Bridge PATCO Track Rehabilitation Project (Project).³

Claimant resides in Philadelphia, Pennsylvania, and works as an apprentice industrial painter. Commodore Maintenance Corp. (Employer) is a New York corporation that was hired as a subcontractor to do painting and lead abatement work on the Benjamin Franklin Bridge as part of the Project. Employer reached out to local union halls in Pennsylvania and New Jersey for laborers. As long as individuals had proper credentials and could pass a drug test, they were hired by Employer. Claimant's local union hall advised him and other members to report to the job site and complete the necessary paperwork and drug test. Claimant did so and was hired by Employer the next day.

Claimant worked on both the Pennsylvania and New Jersey sides of the bridge. On September 3, 2014, Claimant was working on both sides of the bridge. His primary job duty that day was as a vacuumer. Claimant explained that after other employees sandblasted old material off the steel bridge supports, he would follow along and vacuum up the sand and material that accumulated below. While working on the ground underneath the PATCO rail line on the New Jersey side of the bridge that day, Claimant was accidentally struck on the back of his left arm by a blast of sand. Claimant instinctively attempted to dive out of the way of the stream of sand. As he tried to escape the blast, Claimant broke his fall with his right hand, which caused his wrist to snap back. Claimant immediately advised his supervisor that he was injured and sought medical treatment.

Employer accepted a workers' compensation claim in New Jersey and paid benefits to Claimant according to New Jersey law. In fact, Claimant was paid temporary total disability benefits under New Jersey law from September 3, 2014, through February 8, 2016. Approximately two months later, on April 6, 2016, Claimant filed a claim petition in Pennsylvania for the same incident seeking ongoing disability benefits. Specifically, Claimant alleged injuries to his "right upper extremity, right arm, right wrist, and right hand." (Reproduced Record (R.R.) at 2a.) Claimant acknowledged that Employer had accepted his claim and paid benefits under New Jersey law. Employer filed an answer raising, inter alia , a jurisdictional defense, since Claimant was injured in New Jersey, not Pennsylvania. The WCJ bifurcated the case to first address this jurisdictional question.

At a hearing before the WCJ on May 12, 2016, Claimant testified as to the nature of his job and the incident that led to his injuries, as described above. Claimant submitted photographs of the area in which he was injured, which showed a fenced-in area with signs attached to the fencing stating "NO TRESPASSING BY ORDER OF THE DELAWARE RIVER PORT AUTHORITY." (R.R. at 79a.) Claimant also submitted correspondence from AIG, Employer's workers' compensation insurance carrier, dated February 12, 2016, reflecting the payment of temporary total disability benefits from September 3, 2014, through February 8, 2016. AIG noted in this correspondence that Claimant was no longer eligible for benefits under New Jersey law as his treating doctor "had placed [Claimant] at Maximum Medical Improvement as of 02/08/2016." (R.R. at 85a.)

Christopher McGuinness, Employer's Managing Director, testified on Employer's behalf at a hearing before the WCJ on August 16, 2016. McGuinness testified that Employer is a construction firm that primarily does concrete highway maintenance, bridge maintenance, bridge painting, and repair work in New York and New Jersey. While he started with Employer in 2015, after Claimant's work injury, he stated that he was familiar with the Benjamin Franklin Bridge Project because it was still ongoing when he started and he ultimately became project manager from April 2015 until the Project's completion in January 2016. McGuinness described Employer's duties as stripping/blasting the paint off existing and new structural steel repairs and applying new coatings. He confirmed that Employer, which only does union work, originally reached out to local union halls in Pennsylvania and New Jersey for workers for the bridge project.

McGuinness explained the process for hiring workers for the bridge project. As long as potential workers were in good standing in their respective unions and had the proper Occupational and Safety Health Administration certificates, he noted that their names were submitted to the DRPA and they underwent a two- to three-hour training session relating to working on a bridge. After that training seminar and drug testing, the individuals could start working. McGuinness also explained that each morning, the job site or what is called the "shakeup site" was set up in Camden, New Jersey, which was where new employees filled out tax forms and where hired employees reported each day. (R.R. at 70a.) Finally, he noted that Employer has no offices, garages, or equipment sites in Pennsylvania. On cross-examination, McGuinness stated that the shakeup site was within a DRPA fenced-in area in Camden, about 100 yards from the bridge. He also acknowledged that Claimant could have worked on the Pennsylvania side of the bridge over the course of his employment.

By decision and order dated December 5, 2016, the WCJ denied and dismissed Claimant's claim petition. The WCJ concluded that Claimant's September 3, 2014 injuries did not fall under the jurisdiction of the Pennsylvania Workers' Compensation Act (Act).⁴ The WCJ disagreed with "Claimant's representation that a contract of hire was finalized in Pennsylvania," when the evidence revealed that Employer merely reached out to local union halls for workers and Claimant only needed to show up to work with the proper credentials and pass a drug test to be hired. (WCJ Finding of Fact No. 9.) Although Claimant was a Pennsylvania resident and actually performed some work on the Pennsylvania side of the bridge, the WCJ specifically found that "there [was] no dispute that at the time the injury occurred [Claimant] was not on a bridge, and was not off the ground, but rather, it happened when his feet were planted firmly on the ground in the state of New Jersey." (WCJ Finding of Fact No. 10.) Finally, the WCJ found as follows:

Section 305.2^{[5 ]} of the Workers' Compensation Act does not apply because no contract was entered into in Pennsylvania, only a referral made by a union hall, and Claimant would have to show that the work contracted for was not principally located in any other state. The purpose of this catch-all is to protect a claimant where no state will assume jurisdiction. However, in the case at bar, Claimant has been paid benefits in accordance with New Jersey law, so he is not facing any such prejudice.

(WCJ Finding of Fact No. 11.)

Claimant appealed to the Board, but the Board affirmed. The Board stated that there was no need to address the issue of ownership of the Benjamin Franklin Bridge because Claimant was on the ground in New Jersey, not on the bridge itself, at the time he was injured. Further, the Board agreed with the WCJ that section 305.2 of the Act was inapplicable in this case.

Discussion

On appeal to this Court,⁶ Claimant argues that the Board erred as a matter of law in affirming the WCJ's decision that his claim falls outside the jurisdiction of the Act. More specifically, Claimant argues that both Pennsylvania and New Jersey jointly own the bridge and any adjacent land and structures, and, hence, any injury on the joint territory occurs in both Pennsylvania and New Jersey.

Generally, "in a claim proceeding, the employee bears the burden of establishing a right to compensation and of proving all necessary elements to support an award, including the burden to establish the duration and extent of disability." Pennsylvania Uninsured Employers Guaranty Fund v. Workers' Compensation Appeal Board (Bonner & Fitzgerald) , 85 A.3d 1109, 1114-15 (Pa. Cmwlth. 2014). However, this appears to be an issue of first impression for the Court, i.e. , whether Pennsylvania's joint ownership of property conveys jurisdiction over a workers' compensation claim under the Act.

Joint Compact

We begin with the joint compact entered into between Pennsylvania and New Jersey. This compact established the Delaware River Bridge Joint Commission, which, by supplemental agreement in 1951, was renamed the DRPA. Article I of the Compact describes the public purposes for which the DRPA was created, including, inter alia :

(a) The operation

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