J.L. Hawbaker v. WCAB (Kriner's Quality Roofing Services and UEGF)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin L. Hawbaker, :
Petitioner :
:
v. : No. 224 C.D. 2016
: Submitted: July 22, 2016
Workers’ Compensation Appeal :
Board (Kriner’s Quality Roofing :
Services and Uninsured Employer :
Guaranty Fund), :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 13, 2017
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), as Claimant contended.
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
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2
Claimant filed a duplicate claim petition on January 13, 2014.
2
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
3
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.
4
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
5
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.” Id. The Board concluded, based upon its review of the
3
Act of October 13, 2010, P.L. 506, 43 P.S. §§933.1-933.17.
4
Section 3 of the Misclassification Act is quoted in full later in this opinion.
6
record, that the WCJ correctly applied the terms of the Misclassification Act in
concluding that Claimant was an independent contractor and not an employee.
The Board rejected Claimant’s argument that because Kriner’s answer
was not timely, the WCJ was required to hold that Claimant was Kriner’s
employer. The Board explained that whether an individual is an employee or
independent contractor is a purely legal question. The effect of Kriner’s untimely
answer was to admit facts, not legal positions.
On appeal,5 Claimant raises two issues. First, he contends that given
the record evidence, the Board erred and abused its discretion in holding that
Claimant was not an employee of Kriner. Second, he contends that the Board
erred and abused its discretion because Kriner’s untimely answer to the claim
petition established that Claimant was an employee of Kriner.6
Analysis
This Court has held that “[a] claimant seeking workers’ compensation
benefits must establish that he sustained an injury in the course of his employment
and that the injury resulted in a loss of earning power.” Staron v. Workers’
Compensation Appeal Board (Farrier), 121 A.3d 564, 567 (Pa. Cmwlth. 2015),
appeal denied, 132 A.3d 460 (Pa. 2016) (citing Cruz v. Workers’ Compensation
Appeal Board (Kennett Square Specialties), 99 A.3d 397, 407 (Pa. 2014)).
“Employment status is a critical threshold determination for liability.” Id. (quoting
American Road Lines v. Workers’ Compensation Appeal Board (Royal), 39 A.3d
5
We review Board decisions to determine whether errors of law were made, constitutional rights
were violated, and whether necessary findings of fact are supported by substantial evidence.
Ward v. Workers’ Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 n.4
(Pa. Cmwlth.), appeal denied, 982 A.2d 1229 (Pa. 2009).
6
The Uninsured Employer Guaranty Fund did not file a brief in this appeal.
7
603, 610 (Pa. Cmwlth. 2012)). Independent contractors are not eligible for
workers’ compensation. Guthrie v. Workers’ Compensation Appeal Board (The
Travelers’ Club, Incorporated), 854 A.2d 653, 661 (Pa. Cmwlth. 2004). The
nature of a working relationship “is a question of law based on the facts presented
in each case.” American Road Lines, 39 A.3d at 610. It is the claimant’s burden to
prove the existence of an employer-employee relationship. Universal Am-Can,
Ltd. v. Workers’ Compensation Appeal Board (Minteer), 762 A.2d 328, 330 (Pa.
2000).
Claimant argues that the record evidence did not establish that he was
an independent contractor. First, the parties did not execute a written contract
when Claimant returned to work with Kriner in March 2013. Second, Kriner had
complete control and direction over Claimant’s job performance. Third, Claimant
was not engaged in an independently established trade. Kriner disagrees with
Claimant’s characterization of the evidence and contends that their arrangement
satisfied all the criteria in the Misclassification Act for classifying an individual as
an independent contractor.
The Misclassification Act sets forth the criteria for determining
whether a construction worker is an independent contractor or an employee for
purposes of workers’ compensation and unemployment compensation. Section
3(a) states that, “[f]or purposes of workers’ compensation … an individual who
performs services in the construction industry for remuneration” will be an
independent contractor if:
(1) The individual has a written contract to perform such
services.
8
(2) The individual is free from control or direction over
performance of such services both under the contract of service
and in fact.
(3) As to such services, the individual is customarily engaged
in an independently established trade, occupation, profession or
business.
43 P.S. §933.3(a). Section 3(b) sets forth the criteria of “an independently
established trade, occupation, profession or business.” It states:
(b) Criteria.—An individual is customarily engaged in an
independently established trade, occupation, profession or
business with respect to services the individual performs in the
commercial or residential building construction industry only if:
(1) The individual possesses the essential tools,
equipment and other assets necessary to perform
the services independent of the person for whom
the services are performed.
(2) The individual’s arrangement with the person
for whom the services are performed is such that
the individual shall realize a profit or suffer a loss
as a result of performing the services.
(3) The individual performs the services through
a business in which the individual has a proprietary
interest.
(4) The individual maintains a business location
that is separate from the location of the person for
whom the services are being performed.
(5) The individual:
(i) previously performed the same or
similar services for another person in
accordance with paragraphs (1), (2),
9
(3) and (4) while free from direction
or control over performance of the
services, both under the contract of
service and in fact; or
(ii) holds himself out to other
persons as available and able, and in
fact is available and able, to perform
the same or similar services in
accordance with paragraphs (1), (2),
(3) and (4) while free from direction
or control over performance of the
services.
(6) The individual maintains liability insurance
during the term of this contract of at least $50,000.
43 P.S. §933.3(b).7
7
As the Board observed, the Misclassification Act has codified the relevant case law on
determining whether an individual is an employee or an independent contractor. These factors
include:
(1) control of manner the work is done;
(2) responsibility for result only;
(3) terms of agreement between the parties;
(4) nature of the work/occupation;
(5) skill required for performance;
(6) whether one is engaged in a distinct occupation or business;
(7) which party supplies the tools/equipment;
(8) whether payment is by time or by the job;
(9) whether work is part of the regular business of employer; and,
(10) the right to terminate employment.
American Road Lines, 39 A.3d at 611 (citing Baum v. Workers’ Compensation Appeal Board
(Hitchcock), 721 A.2d 402 (Pa. Cmwlth. 1998) (citing Hammermill Paper v. Rust Engineering
Company, 243 A.2d 389 (Pa. 1968); the relevant criteria are control of the manner of the work to
be done, responsibility for the result, terms of agreement and nature of the occupation or
business)).
10
Claimant first contends that he did not have a written contract with
Kriner because none was executed when he resumed work with Kriner in March
2013. Kriner responds that his January 2012 contract with Claimant never
terminated.
On January 16, 2012, the parties executed a written agreement, titled
“Independent Contractor Agreement” (Agreement), that stated, in relevant part, as
follows:
THIS AGREEMENT, made and entered into this 16th day of
January, 2012, by and between Shawn P. Kriner Kriner’s
Quality Roofing Services, hereinafter called the Company, …
and Justin L. Hawbaker, hereinafter called the Contractor….
WITNESSETH, the Company desires to retain the services of
the Contractor, and the Contractor desires to provide services to
the Company, under the terms and specifications provided
below:
1. Type of Services. The Company heretofore retains
the Contractor to perform the following service(s):
Technician all roofing aspects. Kriner’s Quality Roofing
Services shall not pay for mistakes made by hired
Contractors. Contractors will fix mistakes at own
expense and recover materials or property if necessary.
2. Duration of Services. The Contractor shall provide
the above documented services to the company:
***
 until either party serves 30 days written notice to the
other party
3. Payment/Remuneration. The Company shall
remunerate the Contractor: See Amendment
11
***
7. Independent Contractor Status. It is herewith
acknowledged the Contractor is independent in nature,
and as such retains all rights to control and determination
of the manner in which the contractual services are
performed.
***
9. Equipment and Supplies. The Contractor shall be
fully responsible for the procurement, cost and use of all
materials, supplies, equipment and/or additional labor
that might be needed or required to complete the
requirements of this Agreement.
***
17. Termination. The Company may terminate this
agreement at any time by 10 working days’ written notice
to the Contractor. In addition, if the Contractor is
convicted of any crime or offense, fails or refuses to
comply with the written policies or reasonable directive
of the Company, is guilty of serious misconduct in
connection with performance hereunder, or materially
breaches provisions of this agreement, the Company at
any time may terminate the engagement of the Contractor
immediately and without prior written notice to the
Contractor.
Certified Record (C.R.), Exhibit UEGF – 1 (emphasis in original). The
Amendment to the Agreement states as follows:
Pay Procedures:
 Pay upon completion or up to four business
days (excludes weekend and holidays) after
receiving final check from contracted home owner.
12
 Payment instructions will be provided for each
contract.
C.R., Exhibit C-8 (emphasis in original).
The January 2012 contract between Claimant and Kriner did not
terminate in accordance with either Paragraph 2 or Paragraph 17 of the agreement.
The Misclassification Act does not require the subcontractor and general contractor
to execute a separate contract for each job, and we reject this assertion by
Claimant. Claimant contends that, in any case, the January 2012 contract ceased to
have effect after December 2012 because he was fired. When he returned in
March 2013, he did not sign a new contract.
The WCJ is the fact finder, and “[i]t is solely for the WCJ … to assess
credibility and to resolve conflicts in the evidence.” Waldameer Park, Inc. v.
Workers’ Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa.
Cmwlth. 2003). Neither the Board nor this Court may reweigh the evidence or the
WCJ’s credibility determinations. Sell v. Workers’ Compensation Appeal Board
(LNP Engineering), 771 A.2d 1246, 1251 (Pa. 2001). In addition, “it is solely for
the WCJ, as the factfinder, to determine what weight to give to any evidence … the
WCJ may reject the testimony of any witness in whole or in part, even if that
testimony is uncontradicted.” Waldameer Park, 819 A.2d at 168 (citation
omitted).
Here, the WCJ found the testimony of Kriner credible and consistent
with the terms of the January 2012 contract. Kriner did not “fire” Claimant
because he did not give him a 10-day advance written notice of termination, as set
forth in Paragraph 17. Kriner simply stopped assigning jobs to Claimant. The
WCJ resolved the conflict in the testimony of Kriner and Claimant in favor of
Kriner, and we will not reweigh the evidence.
13
In its amicus curiae brief, the Department of Labor and Industry,
Bureau of Labor Law Compliance (Bureau) argues that the Board erred because
the written contract of the parties had an indefinite duration, which it contends is
contrary to the purpose of the Misclassification Act. In support, the Bureau cites
Flaharty v. Trout, 138 A. 863 (Pa. 1927), where the Supreme Court stated that the
indefinite duration of the parties’ oral contract was “a strong circumstance against
the theory of an independent contractor.”8 Id. at 864. We are not persuaded.
First, the duration of the contract was only one of several factors
considered by the Supreme Court in Flaharty, and it was decided 90 years before
the enactment of the Misclassification Act. Second, the Misclassification Act does
not require a contract of specified duration; it requires only a written contract. This
Court will not “supply words … as a means of interpreting a statute.” Rogele, Inc.
v. Workers’ Compensation Appeal Board (Mattson), 969 A.2d 634, 637 (Pa.
Cmwlth. 2009).
Alternatively, the Bureau argues that it is “virtually impossible” for
contracts of indefinite duration to have a defined scope of work, as required by
Section 3(b)(2), 43 P.S. §933.3(b)(2), or to maintain liability insurance during the
term of the contract, as required by Section 3(b)(6), 43 P.S. §933.3(b)(6). We
disagree. There was a defined scope of work in the January 2012 contract, i.e.,
8
In Flaharty, the decedent was killed while working at the defendant’s millyard, and his widow
brought an action under the Workmen’s Compensation Act. The only question on appeal was
“whether there was any evidence in support of the referee’s finding that the relation of employer
and employee … existed between the defendant and the deceased.” Flaharty, 138 A. at 864.
The defendant made an oral contract with the decedent to draw logs from the woods to the mill,
at $3 a thousand feet, log measure. The Supreme Court considered a number of factors to reach
its conclusion that the decedent was an employee. The duration of the decedent’s oral contract
with the defendant was only one factor.
14
roofing and general labor. Claimant chose the job assignment on a particular
project. The absence of a fixed contract period is irrelevant to maintenance of
liability insurance policy, i.e., a totally separate contract. We reject this argument
of the Bureau.
Claimant argues that the WCJ erred in finding that he was free from
control or direction over his performance. He contends that Kriner directed the
time and place of the job; required his attendance; set his compensation; and
reviewed his work. Kriner responds that Claimant was permitted to choose which
job he wanted to perform; was able to decline work; and could leave in the middle
of a job. Kriner Brief at 8-9. Further, Kriner merely inspected Claimant’s work
product to ensure it met industry standards.
In concluding that Claimant was free from the direction or control of
Kriner, except for the “appropriate direction and control between a general
contractor and a subcontractor,” the WCJ relied, in part, upon the following facts:
16. [] Kriner testified [] Claimant was free to seek employment
with another contractor or undertake projects on his own….
17. [] Kriner testified that the standards for the work are on the
package of materials. The standards have to be met in order to
obtain warranties from the shingle manufacturers.
***
22. … [] Kriner freely admitted that as a working general
contractor on the job he oversaw the performance of his
subcontractors and held them accountable to his standards….
WCJ Decision, 1/22/2015, at 4-5. Nos. 16, 17, 22. Control exists where the
putative 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,
15
the power to control the employee.” American Road Lines, 39 A.3d at 611
(emphasis added).
Here, Kriner testified, “I’m expecting him to be there to do work. So
is the contractor; so is the homeowner.” N.T., 8/20/2014, at 10; R.R. 184a. Kriner
testified that his expectations for the subcontractors were as follows:
[W]e would discuss what is to be done or what it is that they
would like to do. And then from there, they would go out to
their own section and do their own work. And it’s pretty much
understood that they knew how work is to be done as far as the
job completion and how it’s to be done. It’s pretty standard.
It’s on the package of shingles on how the roof is to be laid in
order to obtain warranties from the companies and things of
that nature.
N.T., 5/22/2014, at 43; R.R. 120a. Kriner did not direct the manner in which
Claimant did the work. This is a critical feature of the master-servant relationship.
Minteer, 762 A.2d at 333; 43 P.S. §933.3(a)(2) (independent contractor is “free
from control or direction over performance.”). Expecting an independent
contractor to meet quality standards as a condition of being compensated is the
mark of prudence by any person who engages a contractor to do construction work.
Finally, Claimant contends that the Board erred in affirming the
WCJ’s determination that he was engaged in an independently established trade.
Claimant argues that he did not have his own roofing business and was not paid by
the homeowner.
Claimant’s arguments lack support in the record. That Kriner allowed
Claimant to use his tools does not negate the fact that Claimant brought necessary
tools to the job. Claimant also had to fix any mistakes in his work at his own
expense pursuant to the January 2012 contract, which stated that “Kriner’s Quality
16
Roofing Services shall not pay for mistakes made by hired Contractors.
Contractors will fix mistakes at own expense and recover materials or property if
necessary.” Agreement, ¶1; C.R., Exhibit UEGF-1. Claimant acknowledged that
he had to fix his mistakes. The record also showed that Claimant performed the
same or similar services for two other roofing companies; Claimant’s Facebook
page stated that he was an independent roofing contractor; and Claimant’s
insurance application identified his business as “Justin L. Hawbaker I” and
himself as “owner.” Claimant identified his business address as Meadow Drive in
Shippensburg. On this evidence, the Board did not abuse its discretion or err in
affirming the decision of the WCJ that Claimant did not establish the existence of
an employer/employee relationship.
In his second issue, Claimant contends that the Board erred in giving
limited effect to the fact that Kriner’s answer was untimely filed. It is well-settled
that “[w]here an employer files a late answer without adequate excuse, every
factual allegation asserted in the claimant’s claim petition is admitted as true, and
the employer is barred from presenting any affirmative defenses or challenges to
any of the factual allegations in the claim petition.” Rite Aid Corporation v.
Workers’ Compensation Appeal Board (Bennett), 709 A.2d 447, 449 (Pa. Cmwlth.
1998) (citations omitted); see also 77 P.S. §821.9 A claimant does not have to
9
Section 416 of the Act, 77 P.S. §821 states:
Within twenty days after a copy of any claim petition or other petition has been
served upon an adverse party, he may file with the department or its workers’
compensation judge an answer in the form prescribed by the department.
Every fact alleged in a claim petition not specifically denied by an answer so filed
by an adverse party shall be deemed to be admitted by him. But the failure of any
party or of all of them to deny a fact alleged in any other petition shall not
preclude the workers’ compensation judge before whom the petition is heard from
(Footnote continued on the next page . . .)
17
corroborate allegations in a claim petition that are admitted by reason of a late
answer. Heraeus Electro Nite Company v. Workmen’s Compensation Appeal
Board (Ulrich), 697 A.2d 603, 608 (Pa. Cmwlth. 1997). Here, Kriner’s answer
was untimely filed; therefore, Kriner admitted all factual allegations in Claimant’s
claim petition as true.
However, failure to file a timely answer is not the equivalent of a
default judgment. Heraeu, 697 A.2d at 608. A claimant still has the burden of
proving all elements to support an award of compensation. Id. Further,
conclusions of law are not deemed admitted by a late answer to the claim petition.
Neidlinger v. Workers’ Compensation Appeal Board (Quaker Alloy/CMI
International), 798 A.2d 334, 338 (Pa. Cmwlth. 2002). It is well settled that “[t]he
existence of an employer-employee relationship is a question of law based on the
facts presented in each case.” American Road Lines, 39 A.3d at 610 (citation
omitted). Although Claimant filed a claim petition identifying Kriner as his
employer, Kriner’s failure to file a timely answer to the petition does not constitute
an admission on this point. It is a question of law that is to be decided by a
tribunal. Accordingly, the Board did not err in affirming the WCJ’s determination
that Kriner’s late answer did not obviate Claimant’s burden of establishing an
employer/employee relationship.
(continued . . .)
requiring, of his own motion, proof of such fact. If a party fails to file an answer
and/or fails to appear in person or by counsel at the hearing without adequate
excuse, the workers’ compensation judge hearing the petition shall decide the
matter on the basis of the petition and evidence presented.
77 P.S. §821.
18
Conclusion
For the above-stated reasons, we affirm the order of the Board.
_____________________________________
MARY HANNAH LEAVITT, President Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin L. Hawbaker, :
Petitioner :
:
v. : No. 224 C.D. 2016
:
Workers’ Compensation Appeal :
Board (Kriner’s Quality Roofing :
Services and Uninsured Employer :
Guaranty Fund), :
Respondents :
ORDER
AND NOW, this 13th day of February, 2017, the order of the
Workers’ Compensation Appeal Board dated January 28, 2016, in the above-
captioned matter is hereby AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge