Abbasi Communications & Phoenix Ins. Co. v. WCAB (Cramer)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abbasi Communications and :
Phoenix Insurance Company, :
Petitioners :
:
v. :
:
Workers’ Compensation Appeal :
Board (Cramer) : No. 487 C.D. 2019
Respondent : Submitted: August 9, 2019
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: November 18, 2019
Abbasi Communications (Abbasi) and Phoenix Insurance Company
(Phoenix) (collectively, Petitioners) petition this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) March 29, 2019 order affirming the
Workers’ Compensation Judge’s (WCJ) decision granting Thomas Cramer’s
(Claimant) Claim Petition. Petitioners present two issues for this Court’s review: (1)
whether the WCJ’s finding that Claimant lacked control over his schedule is
supported by substantial evidence; and (2) whether the Board erred by affirming the
WCJ’s legal conclusion that Claimant was Abbasi’s employee. After a thorough
review, we affirm the Board’s order.
On August 10, 2015, Claimant filed a Claim Petition seeking WC
benefits, wherein he alleged that, on May 31, 2015, he sustained “[m]ultiple fractures
– Thoracic & Ribs” after falling “6 to 7 feet off [of] a ladder [and] landing onto a
metal fence[,]” while working with Abbasi as a Hughes Network Systems
(HughesNet) satellite internet equipment installer. Reproduced Record (R.R.) at 1a.
Abbasi filed an answer denying the material averments in the Claim Petition.1
At the parties’ request, the question of whether Claimant was an
independent contractor or an employee when the alleged injury occurred was
bifurcated. Claimant testified at hearings on September 21, 2015, November 2, 2015,
January 25, 2016, and March 21, 2016. Sinan Abbasi, Abbasi’s owner, testified on
November 2, 2015. On August 26, 2016, the WCJ issued an interlocutory decision
and order (Interlocutory Decision) holding that Claimant had proved he was Abbasi’s
employee at the time of his injury.2
On January 25, 2018, the WCJ issued a final decision and order (Final
Decision) granting Claimant’s Claim Petition. On February 14, 2018, Petitioners
appealed from the Final Decision to the Board, asserting that no employer-employee
relationship ever existed between Abbasi and Claimant. On March 29, 2019, the
Board affirmed the WCJ’s Final Decision without including any relevant independent
legal analysis in its opinion. Rather, the Board stated: “[T]he WCJ determined that
this matter came down to the legal issue of whether Claimant was an employee . . . or
independent contractor. After weighing the evidence against the applicable law, the
WCJ reasonably concluded that Claimant was an employee . . . .” Bd. Op. at 11. The
Board further explained:
[T]he WCJ . . . determined that, while there were elements
of both an employment relationship and an independent
1
Phoenix filed a separate answer, averring that Abbasi had no WC coverage through
Phoenix in Pennsylvania. Thereafter, Claimant filed a second claim petition against the Uninsured
Employers Guaranty Fund (UEGF). The UEGF filed an answer denying all material allegations.
The UEGF also filed a joinder petition against HughesNet. HughesNet and its insurer filed answers
denying the material allegations.
2
In the Interlocutory Decision, the WCJ also concluded that, at that time, the record was not
yet complete as to whether HughesNet was Claimant’s statutory employer on May 31, 2015.
2
contractor role, making this a very difficult decision, the
preponderance of the evidence established that [Abbasi]
exercised enough control over Claimant, in the
aggregate, to be viewed as his employer and, thus, liable
to Claimant for ongoing temporary total disability benefits.
We agree that the record supports the WCJ’s determination.
Bd. Op. at 11-12 (emphasis added). Petitioners appealed to this Court.3
Initially, “[w]hether an employer-employee relationship exists is a
question of law based upon findings of fact.”4 B & T Trucking v. Workers’ Comp.
Appeal Bd. (Paull), 815 A.2d 1167, 1171 (Pa. Cmwlth. 2003).
Whether one’s status is that of an employee or independent
contractor ‘is a crucial threshold determination that must be
made before granting [WC] benefits.’ Universal Am-Can[,
Ltd. v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d
328,] 330 [(Pa. 2000)]. This is because independent
contractors cannot recover benefits under the [WC] Act[5]
([] Act). The claimant bears the ‘burden to establish an
employer[-]employee relationship in order to receive
benefits.’ Universal Am-Can, 762 A.2d at 330.
3
“This Court’s review is limited to whether there was a violation of constitutional rights or
error of law, and whether necessary findings of fact were supported by substantial evidence.” Am.
Rd. Lines v. Workers’ Comp. Appeal Bd. (Royal), 39 A.3d 603, 610 n.6 (Pa. Cmwlth. 2012).
On May 29, 2019, Petitioners filed a supersedeas request with this Court. On July 8, 2019,
after argument, this Court denied the supersedeas request because Petitioners failed to demonstrate
irreparable injury.
On August 26, 2019, Claimant filed a Motion to Compel Petitioners to make WC benefit
payments (Motion to Compel). Therein, Claimant averred that following this Court’s denial of
Petitioners’ supersedeas request, “[Petitioners] ha[ve] not paid [Claimant] and his [a]ttorney,
penalties for late payments and his [a]ttorney’s percentage of medical bill payments that have been
previously paid by Petitioner[s].” Motion to Compel at 1, ¶ 3. In addition, Claimant alleged that
“to date the Petitioner[s] ha[ve] failed to make payment to the Department of Veteran’s Affairs as
directed, subtracting therefrom twenty percent (20%) attorney’s fees to be paid to [Claimant’s]
attorney.” Id. at 1, ¶ 4. Petitioners did not file a response thereto. Claimant’s Motion to Compel is
dismissed without prejudice so that Claimant may petition the WCJ for relief.
4
“Because the determination as to the existence of an employer[-]employee relationship is a
question of law, on this issue, our scope of review is plenary and our standard of review is de novo.”
Dep’t of Labor & Indus. v. Workers’ Comp. Appeal Bd. (Lin & E. Taste), 155 A.3d 103, 109 (Pa.
Cmwlth. 2017), aff’d, 187 A.3d 914 (Pa. 2018).
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3
. . . . There is no bright line rule for determining whether a
particular relationship is that of an employer-employee or
owner-independent contractor. Nevertheless, our Supreme
Court has established the following factors that must be
considered when making such determination:
Control of manner 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 is engaged in a
distinct occupation or business; which party
supplied the tools; whether payment is by the
time or by the job; whether work is part of the
regular business of the employer, and also the
right to terminate the employment at any time.
Id. at 333 (quotation marks and citations omitted) (quoting
Hammermill Paper Co[.] v. Rust Eng[’g] Co[.], . . . 243
A.2d 389, 392 ([Pa.] 1968)) [(Hammermill Factors)].
‘Whether some or all of these factors exist in any given
situation is not controlling.’ Id. Although each factor is
relevant, ‘control over the work to be completed and the
manner in which it is to be performed are the primary
factors in determining employee status.’ Id. ‘Moreover,
it is the existence of the right to control that is significant,
irrespective of whether the control is actually exercised.’
Id. (emphasis in original).
Dep’t of Labor & Indus. v. Workers’ Comp. Appeal Bd. (Lin & E. Taste), 155 A.3d
103, 109-10 (Pa. Cmwlth. 2017), aff’d, 187 A.3d 914 (Pa. 2018) (bold emphasis
added; citations omitted). Further,
[c]ontrol 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.’ Am.
Rd. Lines [v. Workers’ Comp. Appeal Bd. (Royal)], 39 A.3d
[603,] 611 [(Pa. Cmwlth. 2012)] (citing 3D Trucking [Co.,
Inc.] v. Workers’ Comp. Appeal Bd. (Fine & Anthony
Holdings Int’l), 921 A.2d 1281 (Pa. Cmwlth. 2007)).
Moreover, payment of wages and payroll deductions are
significant factors, as is provision of [WC] coverage.
However, payment is not determinative. In addition, a tax
4
filing denoting self-employment, while a relevant factor, is
not dispositive on the issue. Similarly, the existence of an
employment or independent contractor agreement is another
factor to consider, but it is not, by itself, dispositive.
Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home Care, Inc.), 134 A.3d 1156,
1162-63 (Pa. Cmwlth. 2016) (citations omitted).
The WCJ assessed the evidence as follows:
I find the testimony of both . . . Claimant and Sinan
Abbasi to be credible. Although they, of course, disagree
on the legal question of whether Claimant is an independent
contractor or employee of Abbasi . . . , remarkably their
testimony is in agreement on almost every material fact.
They agree that: (1) Claimant was recruited via a posting on
the internet concerning a satellite internet installer
opportunity; (2) Claimant was given business cards and a
plaque for his truck, both of which had Abbasi’s business
phone number listed, and not Claimant’s phone number; (3)
Claimant was given installation assignments through
Abbasi’s website, which he could not change without
Abbasi’s approval; (4) Claimant was required to remain
certified by HughesNet and received periodic guidance on
how installations were to be performed, which included
sending Abbasi a photo of the completed installation to
ensure compliance; (5) Claimant was not paid by the hour
or day but by completed installation; (6) Claimant owned
his own vehicle and tools, but had inventory responsibilities
at a storage site paid for by Abbasi; [and] (7) Claimant’s tax
documents were completed in such a manner as to treat his
income from Abbasi as self-employment income, and not
wages.
Interlocutory Decision at 8 (emphasis added). Based on the evidence adduced at the
hearings, the WCJ reasoned that three Hammermill Factors supported that Claimant
was an independent contractor:
He supplied his own tools, supplies and vehicle for
installation jobs assigned to him by Abbasi. Claimant was
paid by completed job, and not by the amount of time he
worked. The forms completed by Claimant at the beginning
of his relationship with Abbasi, and the tax forms
5
completed each year he accepted assignments from
[Abbasi], suggest that he considered himself to be an
independent contractor.
Interlocutory Decision at 9. The WCJ then considered Hammermill Factors tending
to support an employer-employee relationship between Claimant and Abbasi:
Claimant had no control over his installation
assignments, which were made exclusively by Abbasi.
Even the slightest scheduling change was subject to
approval by Abbasi. Claimant did not control the
manner of the work to be done. He had to adhere to
HughesNet guidelines, and did not get paid until he
submitted a photo of the HughesNet equipment installed
to the satisfaction of Abbasi and/or HughesNet,
regardless of whether the customer was satisfied.
Claimant was not engaged in an occupation or business
distinct from that of Abbasi or HughesNet. The phone
number on Claimant’s truck and business card belonged to
Abbasi, and Claimant had no access to the e[]mail account
on his business card, which was designed and paid for by
Abbasi. Claimant’s work was part of the regular business
of both Abbasi and HughesNet; it could be said that neither
Abbasi [n]or HughesNet could remain in business without
the type of installation work performed by Claimant and
other installers.
Abbasi retained the right to control the work to be done
by Claimant and the manner in which it was to be done.
In fact, Abbasi exercised that right. It was Abbasi, not
Claimant, [that] was in complete control of Claimant’s
installation assignments. Changes in those assignments
had to be approved by Abbasi. This demonstrates that
Abbasi had the right to control the work to be done by
Claimant. Likewise, Abbasi and/or HughesNet
controlled the manner in which Claimant’s work was
done. Claimant could not get paid for his installation
work without submitting a photo to Abbasi, showing
that the installation had been done in accordance with
the specifications of Abbasi and/or HughesNet.
Interlocutory Decision at 9-10 (emphasis added). Weighing these facts, the WCJ
concluded that Claimant was Abbasi’s employee at the time Claimant was injured.
6
This Court first addresses Petitioners’ argument that the WCJ’s finding
that Claimant lacked control over his schedule is not supported by substantial
evidence. The WCJ found that:
Claimant received work assignments through Abbasi’s
website. The website would tell him how many jobs he had
that day, what kind of jobs they were, and the time slot to
accomplish them. Claimant did not schedule installations
on his own; this function was performed by Abbasi. Any
changes to [Claimant’s] work schedule had to be approved
by Abbasi.
Interlocutory Decision at 4, ¶ 5(e).
Petitioners dispute the WCJ’s “purported notion that . . . Claimant was
told when and where to work and that he had to first seek Abbasi’s approval to
rearrange his schedule.” Petitioners’ Br. at 29. Petitioners claim that the record
evidence does not support such a conclusion, and instead demonstrates that Claimant
maintained control over his appointment times and locations, which is indicative of
an independent contractor relationship.
Petitioners stress, and Claimant acknowledged, that prior to beginning
his work for Abbasi, Abbasi requested Claimant to complete a “Contractor
Technician Coverage” form (Form), wherein Claimant identified mileage limitations
for his service area and described his availability. R.R. at 313a. Notably, the Form
included instructions stating:
In an event where [a] route must be different than the
coverage listed [in the Form,] dispatch will call you to
accept or reject [the] route. If you can[]not be reached by
phone, you will receive a voice mail message and an email.
From that point you have 1-hour to contact dispatch but
if you fail to do so, you are required to run that route.
7
Id. (Bold and italic emphasis added). It also contained an acknowledgment above
Claimant’s signature that “any false statements made herein will void my Application
for Employment and any actions based on it.” Id. (Emphasis added.) Claimant
noted with respect to the Form:
[A]s far as I was concerned, it set down the parameters of
the work that I was to do for [Abbasi], as far as counties
covered and distances I traveled in between, so I would
know ahead of time what [Abbasi] expected of me. And it
was a mutual thing. In other words, I --- I signed it because
it was satisfactory to what I wanted to do.
R.R. at 46a.
Petitioners also reference Sinan Abbasi’s testimony that Claimant could
decline assignments, see R.R. at 96a, and, if Claimant wished not to work at all in a
given week, he was free do so. See R.R. at 132a. Further, Petitioners contend
Claimant could reschedule an appointment directly with a client, but acknowledged
there was an expectation that Claimant notify Abbasi so its schedule could be
updated. See R.R. at 98a.
Claimant testified that “work was scheduled and set up by Sinan Abbasi.
And it would appear on the A-connect website[6] as far as where it was located;
contact information; when [he] was to perform, morning or afternoon, the work.”
R.R. at 215a. Claimant explained that he was required to get Abbasi’s permission to
change his schedule, however, he later clarified that there were instances where he
contacted customers to change appointment times, but did so to determine customers’
availability, informed the customers that the change must be approved by Abbasi and,
thereafter, sought Abbasi’s approval.7 Sinan Abbasi admitted that the A-connect
6
“A-connect was a website set up through [Abbasi] primarily to assign work . . . on a daily
basis, morning and afternoon.” R.R. at 215a.
7
Claimant acknowledged on cross-examination that he informed Abbasi in a June 23, 2012
email that he had personal items to attend and accordingly, requested Abbasi to move Claimant’s
morning appointment and block off the afternoon. The email reflects that Claimant did so
8
website “wasn’t designed . . . that [Claimant could] just reject a job or accept a job.”
R.R. at 96a.
“As the sole fact-finder in [WC] cases, the WCJ has exclusive province
over issues of credibility and evidentiary weight.” Bristol Borough v. Workers’
Comp. Appeal Bd. (Burnett), 206 A.3d 585, 611 (Pa. Cmwlth. 2019). Based on the
aforementioned testimony, this Court agrees that substantial evidence supports the
WCJ’s finding that “Claimant did not schedule installations on his own; this function
was performed by Abbasi [and that a]ny changes to [Claimant’s] work schedule had
to be approved by Abbasi.” Interlocutory Decision at 4, ¶ 5(e).
This Court next addresses Petitioners’ contention that the WCJ and the
Board erred by concluding that Claimant was Abbasi’s employee at the time he was
injured on May 31, 2015. Petitioners argue that, although the WCJ properly
determined that three of the Hammermill Factors supported the conclusion that
Claimant was an independent contractor, the WCJ erred when he concluded that
Abbasi controlled Claimant’s work and thus was Claimant’s employer based on the
following findings: (1) Abbasi controlled the manner of Claimant’s work; (2) Abbasi
controlled where and when Claimant worked; and (3) Abbasi issued Claimant
business cards and a magnetic van placard displaying Abbasi’s name.
Petitioners assert that Abbasi did not direct the manner of Claimant’s
work, and that Abbasi’s requirement that Claimant adhere to HughesNet installation
specifications and submit a completed installation photograph to Abbasi does not
amount to control over Claimant’s work performance. In support, Petitioners cite
Cox v. Caeti, 279 A.2d 756 (Pa. 1971), Lin, and Holt v. Unemployment Compensation
Board of Review, 840 A.2d 1071 (Pa. Cmwlth. 2004), for the proposition that
requesting to take his daughter for a medical appointment. See R.R. at 185a-187a, 354a. In another
email, Claimant requested Abbasi schedule one additional appointment the following Monday
because he needed to get home early that day. See R.R. at 355a. These limited circumstances do
not demonstrate that Claimant exercised control over his schedule.
9
periodic monitoring and inspections for the purpose of controlling the work result
does not amount to control over the manner in which the work is performed.
In Cox, a negligence action, the Pennsylvania Supreme Court held that
an individual who conducted his own business but was engaged by a home
improvement company to perform a specialized stonework installation was an
independent contractor and not the home improvement company’s employee.
Rejecting the plaintiff’s argument that the home improvement company’s ongoing
inspection of the stoneworker’s progress rendered him a home improvement company
employee, the Court explained: “Our Court has previously held that inspection of the
progress of the work does not necessarily require an inference of exclusive control
over the manner of performance of the work, but rather only of interest in the result.”
Cox, 279 A.2d at 758.
The Lin Court considered whether a claimant who was injured while
doing remodeling work for a restaurant that had not yet opened for business was the
restaurant’s employee. Therein, the restaurant owner’s husband “told [the c]laimant
‘what he wanted done’ and [the c]laimant’s job ‘was to do it.’” Lin, 155 A.3d at 110.
This Court noted:
The WCJ explained ‘[t]his is essentially the same
relationship that property owners typically have with
painters, plumbers, electricians, carpenters and other
remodelers. These specialists bring their time and
expertise.’ ([Lin] WCJ’s op. at 4.) The reasonable
inference from the evidence is that [the owner’s husband]
was in charge of the overall goals of the project and did not
control the manner in which the work was to be completed.
Where one reserves no control over the means of
accomplishing a contract but merely reserves control as
to the result, ‘the employment is an independent one
establishing the relation of contractee and contractor and
not that of master and servant.’ Gillingham v. Consol
Energy, Inc., 51 A.3d 841 (Pa. Super. 2012).
10
Lin, 155 A.3d at 110 (emphasis added).
Petitioners also rely on Holt, wherein this Court addressed the
employment status of an individual seeking unemployment compensation benefits
who had been paid to provide text for a company’s website. The Holt Court
considered that “[the c]laimant determined what hours she would work and how the
services would be performed. [The purported employer] gave [the c]laimant an
outline of the text needed, however, [the c]laimant independently determined how to
meet those needs. [The c]laimant provided [the purported employer] with a finished
text for its use.” Holt, 840 A.2d at 1072. Noting that “[the c]laimant controlled the
manner in which the work was done and had responsibility for the result only[,]” this
Court agreed with the Unemployment Compensation Board of Review’s
determination that the claimant was self-employed. Id. at 1073. In the instant matter,
Petitioners contend that, as in Cox, Lin and Holt, Claimant was responsible for the
result only.
Claimant testified:
A. There was [sic] training courses through HughesNet
themselves [sic] to be certified. And it was spelled out
there, exactly the steps you had to take and what order.
In addition, once I started working for Abbasi, there
was [sic] upgrades to the system. Every couple of years,
they’d [sic] come out with a new generation modem. And
I’d have to train through Abbasi/HughesNet courses to
be certified for the latest modem installation upgrade.
Q. Then the method that you performed your work was
described to you by Abbasi and by HughesNet?
A. Yeah. And occasionally, [Sinan] Abbasi . . . would
send out an email to all of the techs that worked for him,
including me with any areas of concern that might come
up. He spelled them out. If he was getting some feedback
from HughesNet or the customers for stuff that shouldn’t
have been done in that manner, he would send out a bulletin
11
and an email[] blast to all of his techs, explaining exactly
how he thought it should be done.[8]
Q. How, if at all, did either Abbasi or HughesNet control
you when you were at the site to make sure you were
performing as they wanted you to?
A. Well one of the requirements was, as we were
installing, we needed to take photos of our work, where
we grounded it, where we mounted the dish, line the
sight shot up, the arm of dish, so we could see there’s no
obstructions, all of that. Then we had to submit that to -
-- I submitted them to Abbasi and I’m assuming [it]
submitted them to HughesNet after that.
Q. Now you would have to do this when you were onsite
actually performing the work?
A. Yes, every single job.
R.R. at 50a-51a (emphasis added).
Sinan Abbasi explained the reasons for Abbasi’s photograph
requirement:
It was HughesNet and [its] distributor. To be able to release
the payment to [Abbasi] to pay [Claimant], we needed to
show his work or they wanted to see where he installed the
equipment, the line of sight or the good stuff. So it was a
requirement by HughesNet and [its] distributor to take these
photos and upload them through the app that they provided,
which [Claimant] will [sic] take a photo of the work he did
and it’ll automatically upload to the HughesNet servers and
8
Claimant described one such email as follows:
One of them was how you deal with a customer, as far as your
appearance. Encourage us to use booties when we went into a
customer’s house so that we wouldn’t be tracking up the rugs or
anything. To clean up all debris that might’ve been left over, empty
boxes and stuff and take them with you. Don’t leave them with the
customer. And your attitude you should have with being professional,
you know, that kind of thing.
R.R. at 67a.
12
[it] look[s] at it. I had the ability to look at it as well, but
these photos were a requirement through HughesNet that
went directly to [it].
R.R. at 111a-112a. Sinan Abbasi elaborated:
Q. Were there ever any instances . . . where [Claimant]
would be doing an installation and would send you photos
and you would instruct him to change the location of an
installation?
....
A. What we did was, we’d talk about how the installation
happened or what he did, advising that some things need
to be done a certain way up to HughesNet’s
requirement. If it was a hundred percent just against what
they [sic] looked for, he’ll have to go back and fix it
because there will be no payment coming from HughesNet
if the job was not done up to their [sic] standard. Does that
make sense?
Q. Yes. And you said their [sic] standards. Were these
Abbasi’s or HughesNet’s?
A. HughesNet and that he had to --- he knew what they [sic]
are through training.
Q. And just so I’m clear, you testified on [d]irect
[e]xamination about the photos needing to be approved.
Was that HughesNet that needed to approve them?
A. Correct. I would look at the photos a day or two after
[Claimant] submits them to just see if there’s any issues I
see so we can resolve whatever it is before it gets to
HughesNet and they quality check the job. If it gets to that
point, then what they [sic] do is they [sic] create another
work order for him to go out and fix it and there’s just more
headache having it done that way rather than if we catch
what it is and it can be resolved before it even gets to the
point where they [sic] actually call up and check the order.
R.R. at 133a-135a (emphasis added).
Unlike the purported employers in Cox, Lin and Holt, in accordance with
HughesNet’s specific requirements, Abbasi did not simply examine the finished
13
work, it insisted that Claimant adhere to HughesNet’s detailed installation procedures
and submit photographs documenting compliance therewith. Accordingly, Abbasi
“reserve[d] . . . control over the means of accomplishing [the] contract[,] [and did
not] merely reserve[] control as to the result[.]” Lin, 155 A.3d at 110 (emphasis
added). The record evidence reveals that Claimant learned how to perform
installations consistent with HughesNet specifications through HughesNet
certification classes. Claimant testified that he received his initial HughesNet
certification before he began working for Abbasi, but he continued, as required, to
take HughesNet online certification courses thereafter. See R.R. at 66a. Claimant
agreed that he performed his work at the job sites “based on the training that [he] was
required to have.” Id. at 224a. Thus, it is clear that Abbasi exercised substantial
control over the manner in which Claimant performed his work.
With respect to control over Claimant’s schedule, this Court concluded,
supra, that substantial evidence supports the WCJ’s finding that Claimant lacked
control over his schedule, and that Abbasi exercised such control.
Regarding the business cards and magnetic placard Abbasi provided
Claimant for Claimant’s van, the WCJ summarized Claimant’s testimony:
b. Claimant explained that Abbasi had business cards
printed with Claimant’s name on them. The business card
in question identified Abbasi . . . , a HughesNet Authorized
Retailer, and Claimant as an ‘Internet Expert.’ (Claimant’s
Exhibit # 1). The telephone number listed is not Claimant’s
phone number, but rather, is the toll-free number for
Abbasi. The [business] card also contains an e[]mail
address . . . which Claimant identified as an address that
customers could use to contact Abbasi.
c. Claimant was instructed by Abbasi to put a magnetic
plaque on his vehicle while installing equipment. The
plaque contained a HughesNet logo, and Abbasi’s toll free
telephone number.
....
14
m. Claimant was encouraged to hand out his business cards
from Abbasi, and that he would be paid a commission of
$50.00 per sale if he was able to generate new business for
Abbasi.
Interlocutory Decision at 4-5 (citations omitted). The WCJ also described Sinan
Abbasi’s testimony:
f. [Sinan] Abbasi explained that Claimant’s truck and
business cards set forth the contact information for Abbasi .
. . , rather than Claimant’s own contact information,
because he received complaints from customers that they
want something to identify the installers that are coming to
their house to do the job. If a customer had any issues with
an installer, they were to contact [Sinan] Abbasi and let him
know. [Sinan] Abbasi admitted that the installers’ work
trucks were identified in this manner because customers
‘can’t identify who (the installers) work for.’ [R.R. at
103a]. [Sinan] Abbasi agreed that nowhere on the truck
plaque or the business cards does his company identify
Claimant as an independent contractor; Claimant is instead
identified as a ‘certified installer.’ [R.R. at 116a].
g. [Sinan] Abbasi claimed that [Abbasi’s] phone number,
rather than Claimant’s personal cell phone, was listed on
Claimant’s business cards ‘for his privacy.’ [R.R. at 104a.]
h. [Sinan] Abbasi ordered and sent Claimant 250 business
cards at Abbasi’s expense, in order to increase sales. The
cards listed Abbasi’s telephone number, and an e[]mail
address owned by Abbasi that Claimant could not access.
Interlocutory Decision at 7 (citations omitted).
Based on these facts, the WCJ concluded:
[Sinan Abbasi] could have identified Claimant as an
independent contractor on his business cards or truck
plaque, but instead, caused confusion by identifying
Claimant as an ‘Internet Expert’ and listing a phone number
and e[]mail directed to Abbasi . . . and not to Claimant.
Abbasi held Claimant out to the public as one of his own,
because as he explained, customers could not determine on
their own who the installers worked for. Abbasi wanted the
best of both worlds, complete control over the installation
15
process and communication with customers in
Pennsylvania, without the cost or added complication of
hiring Pennsylvania employees to serve those customers.
Interlocutory Decision at 10.
Petitioners assert that Claimant’s use of Abbasi’s magnetic plaque is
irrelevant to the instant determination and that Universal Am-Can supports their
position. They claim that the Universal Am-Can Court “dismissed [the claimant’s]
argument” that “the presence of the alleged-[e]mployer’s insignia on the outside of
[the] vehicle supported the legal determination that the [c]laimant was an employee.”
Petitioners’ Br. at 37. Rather, in Universal Am-Can, the Pennsylvania Supreme Court
rejected the claimant’s contention that an insignia on a vehicle creates an
irrebuttable presumption of employment status and explained: “The presence of a
carrier’s insignia on the outside of a rig is merely one of the many factors to be
considered when determining employee/independent contractor status and does not
command a conclusion of employee status.”9 Universal Am-Can, 762 A.2d 328, 332
(Pa. 2000) (emphasis added). Like a vehicle insignia, business cards are “one of the
many factors to be considered . . . .”10 Id. In the instant matter, the WCJ properly
considered Abbasi’s directive that Claimant use the metallic plaque and his request
that Claimant use the business cards as factors in his analysis and determined that
Abbasi held Claimant out to the public to be its employee by doing so. Id.
Given Abbasi’s extensive control over the manner of Claimant’s work
and over Claimant’s schedule, that Abbasi held Claimant out as his employee, and
9
This Court has explained that “the presence of a party’s name . . . on a commercial vehicle
raises a rebuttable presumption that the vehicle is owned by that party and that the driver of the
vehicle is an employe[e] of that party acting within the scope of his employment.” Workmen’s
Comp. Appeal Bd. v. Navajo Freight Lines, Inc., 338 A.2d 766, 769 (Pa. Cmwlth. 1975).
10
See, e.g., Stillman v. Workmen’s Comp. Appeal Bd. (CBR Enterprises), 569 A.2d 983 (Pa.
Cmwlth. 1990); see also Danielle Viktor, Ltd. v. Dep’t of Labor & Indus., Bureau of Emp’r Tax
Operations, 892 A.2d 781 (Pa. 2006); Hartman v. Unemployment Comp. Bd. of Review, 39 A.3d
507 (Pa. Cmwlth. 2012).
16
given the WCJ’s thoughtful analysis of the other Hammermill Factors indicating an
employment relationship, the Board properly affirmed the WCJ’s decision.11
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
11
Petitioners also argue that the Board and the WCJ were required to consider all
Hammermill Factors but failed to address the following: (1) whether any special skill was required
for Claimant’s work; (2) whether Claimant was responsible for the result of his work only; and (3)
whether either party held the right to terminate the relationship. Petitioners contend that
consideration of those factors would have supported the legal conclusion that Claimant was an
independent contractor. This Court has previously rejected a claimant’s assertion that the Board’s
decision should be reversed because “the WCJ did not consider all of the Hammermill [F]actors.”
Carbaugh v. Workers’ Comp. Appeal Bd. (Knight’s Home Improvements) (Pa. Cmwlth., No. 1915
C.D. 2009, filed April 13, 2010), slip op. at 4. The Court explained:
all of the Hammermill [F]actors need not be present, and the key
factor is the right to control. The WCJ and the Board specifically
found that [the purported employer] did not have a right to control,
and that there was no actual supervision exercised by [the purported
employer]. Notwithstanding, that finding does not establish that all of
the factors were not considered. The WCJ discussed at length the
factors used to make his determination and addressed most of the
Hammermill [F]actors.
Carbaugh, slip op. at 4. This Court’s unreported memorandum opinions may be cited “for [their]
persuasive value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s
Internal Operating Procedures, 210 Pa. Code § 69.414(a). Here, given the WCJ’s exhaustive
analysis, we find Carbaugh persuasive and reject Petitioners’ argument.
Further, Petitioners contend that the WCJ and Board erred “because the majority of [the
Hammermill] Factors support a finding that [Claimant] was an independent contractor and not
[Abbasi’s employee].” Petitioners’ Br. at 41. Whether a majority of Hammermill Factors support
a particular finding is not determinative. Rather, “there are certain guidelines that have been
elevated to be dominant considerations. . . . [C]ontrol over the work to be completed and the
manner in which it is to be performed are the primary factors in determining employee status.”
Universal Am-Can, 762 A.2d at 333. Here, Abbasi exercised significant control over the work, and
the manner in which it was to be performed. The extent of the control exercised by Abbasi over
Claimant, along with the other factors discussed by the WCJ, supports the conclusion that Abbasi
was Claimant’s employer.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abbasi Communications and :
Phoenix Insurance Company, :
Petitioners :
:
v. :
:
Workers’ Compensation Appeal :
Board (Cramer) : No. 487 C.D. 2019
Respondent :
ORDER
AND NOW, this 18th day of November, 2019, the Workers’
Compensation Appeal Board’s (Board) March 29, 2019 order is affirmed.
Thomas Cramer’s (Claimant) Motion to Compel is dismissed without
prejudice, so that Claimant may petition the Workers’ Compensation Judge for relief.
___________________________
ANNE E. COVEY, Judge