M.S. Tiwanna, by B. Kaur, Dependent v. Jatt Friends, Inc. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Manjinder S. Tiwanna, Deceased, : CASES CONSOLIDATED
by Balwinder Kaur, Dependent, :
Petitioner :
:
v. :
:
Jatt Friends, Inc., Kaolin Mushroom :
Farms, Inc., Uninsured Employers :
Guaranty Fund, and USA Freight, Inc. :
(Workers’ Compensation Appeal Board), :
Respondents : No. 852 C.D. 2021
Manjinder S. Tiwanna, Deceased, :
by Balwinder Kaur, Dependent, :
Petitioner :
:
v. :
:
Race, Inc., Kaolin Mushroom :
Farms, Inc., Uninsured Employers :
Guaranty Fund, and USA Freight, Inc. : No. 853 C.D. 2021
(Workers’ Compensation : Submitted: August 5, 2022
Appeal Board), :
Respondents :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: December 1, 2022
Balwinder Kaur (Claimant), an adult dependent of Manjinder Tiwanna
(Decedent), petitions for review of the Workers’ Compensation Appeal Board’s
(Board) June 30, 2021 Order that affirmed a Workers’ Compensation Judge’s (WCJ)
September 21, 2020 Decision denying Claimant’s claim petitions against Jatt
Friends, Inc. (Jatt), Race, Inc. (Race), Kaolin Mushroom Farms, Inc. (Kaolin), USA
Freight, Inc. (USA Freight) (collectively, Alleged Employers), and the Uninsured
Employers Guarantee Fund (UEGF). On appeal, Claimant argues the Board erred
in determining Decedent was an independent contractor and not an employee of one
of the Alleged Employers. Upon review, we affirm.
I. Background
Before June 1, 2018, Decedent was driving a tractor trailer pursuant to an
independent contractor agreement with Jatt. Certified Record (C.R.), Item No. 11,
Findings of Fact (F.F.) Nos. 11i, 16b, 17. Decedent signed a notice of termination,
with an effective date of May 31, 2018, which indicated that he was “voluntarily
terminating his contract for driving with Jatt . . . .” F.F. No. 17. On June 1, 2018,
Decedent signed an Independent Contractor Agreement with Race, wherein Race
agreed to obtain delivery jobs for Decedent, Decedent agreed to pay Race a dispatch
fee, and Decedent agreed to lease a tractor trailer from Race. F.F. Nos. 14, 15, 21e.
The agreement also specified “[i]t is expressly agreed that [Decedent] shall always
be acting as an independent contractor during the performance of any services under
the Agreement. This Agreement does not constitute, and shall under no
circumstances be construed as constituting, or creating, an employer/employee
relationship between [Race] and [Decedent].” F.F. No. 21f.
2
Decedent died on June 5, 2018, due to injuries he sustained from a tractor
trailer accident. F.F. No. 10. At the time of his death, Decedent was transporting a
load of mushrooms, which Kaolin subcontracted to Race. See F.F. No. 23. Claimant
filed Fatal Claim Petitions for Compensation by Dependents of Deceased Employees
(Fatal Claim Petitions) against Jatt and Race. F.F. Nos. 1-2. In her Fatal Claim
Petitions, Claimant alleged that she was living with and totally dependent upon her
son, Decedent, who was injured while employed by Jatt and Race. See e.g. C.R.,
Item No. 2. Shortly after filing the Fatal Claim Petitions, Claimant filed claim
petitions for benefits from UEGF against Jatt and Race. UEGF then filed joinder
petitions, seeking to add Kaolin and USA Freight1 as additional employers. F.F. No.
6; C.R., Item No. 15, at 1.
The WCJ held a series of hearings in this matter, wherein Claimant and
representatives of Jatt, Race, Kaolin, USA Freight, and UEGF testified. See F.F.
Nos. 8, 11, 12, 13, 14, 15, 16, 22, 23. Claimant asserted Decedent was an employee
of Jatt and Race, while Alleged Employers all denied that Decedent was their
employee. Id. Representatives of Jatt and Race specifically asserted Decedent was
operating as an independent contractor at the time of his death. Id. Due to Race and
Jatt’s failure to timely file an answer to Claimant’s Fatal Claim Petitions, the WCJ
deemed the factual allegations in those petitions admitted.2 F.F. No. 37.
1
USA Freight is a party to this action because the “Drop Sheet for the [Kaolin] job on June 2,
2018 . . . [had] the name of [USA Freight] on it because [Race] wasn’t set up in [Kaolin]’s
computer system as a common carrier by June 2, 2018.” F.F. No. 23e. Claimant did not, however,
assert that USA Freight was Decedent’s employer at the time of Decedent’s death. See generally
C.R., Item No. 11.
2
The WCJ deemed the following facts admitted:
a.) The business of the Defendants was trucking.
b.) The time of the injury was 11:24 p.m.
(Footnote continued on next page…)
3
After summarizing the testimony of each witness, the WCJ issued the
following findings:
Ms. Dhaliwal[, who operated Jatt,] and Mr. Sekhon[, who operated
Race,] are credible and persuasive, particularly with respect to the
existence of the independent contractor agreements between [Race] and
[Decedent]. [sic] because their testimonies are corroborated by Mss.
Lindsey[, who notarized a June 1, 2018 Independent Contractor
Agreement between Race and Decedent,] and Lynch[, who witnessed
Decedent execute the Independent Contractor Agreement,] and the
documents in evidence. Mss. Lynch and Dhaliwal and Mr. Sekhon are
credible and persuasive about [Decedent]’s status as an independent
contractor at the time of the injury and his demise because: the
independent contractor agreements with [Decedent]’s notarized
signature on it [sic] substantiate his status as an independent contractor,
statements in the Pennsylvania Income Tax Return for 2017 buttressed
c.) The cause of death was brain death [as declared] by USA Medical Center Staff.
d.) The deceased incurred medical bills from USA Medical Center and from Med-
Trans in the amount of $37,164.25.
e.) The expenses for the burial were $10,128.38.
f.) The paid amount from the Defendants was $0.
g.) The wages of the deceased at the time of the accident were $850.00.
h.) The notice of injury and/or death was orally given to the Defendants on 6/5/18
by Sandeep Kaur to Amrit Dhaliwal and Harbinder Dhaliwal.
i.) The dependent was Balwinder Kaur . . . as the mother[,] and the dependency was
total.
j.) The petitioner lived with the deceased at the time of death and wasn’t a widow
of the deceased.
k.) There wasn’t other pending litigation.
F.F. No. 37.
The WCJ properly deemed only factual allegations, and not the employment relationship,
admitted in response to Claimant’s Yellow Freight Motion. See Yellow Freight Sys., Inc. v.
Workmen’s Comp. Appeal Bd. (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981) (holding that when
a defendant fails to file an answer to a claim petition within the statutory answering period, the
WCJ must deem the factual allegations within the claim petition as having been admitted);
Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs.), 159 A.3d 61, 72 (Pa.
Cmwlth. 2017) (explaining that the employment relationship “is a question of law” and that
“[c]onclusions of law are not deemed admitted by a late answer to the claim petition”).
4
[Decedent]’s self-employment and the lack of his dependents, and
statements in a Department of the Treasury Internal Revenue Service
Form 1040 U.S. Individual Income Tax Return 2017 for Decedent
showed deductions for a self-employment tax, indications of self-
employment, and the lack of his dependents. Ms. Dhaliwal and Mr.
Sekhon are credible and persuasive about [Decedent]’s status as an
independent contractor because their testimonies and the evidence as a
whole established that the terms of the agreements between [Decedent]
and [Race] weren’t indicative of an employer-employee relationship at
the time of the accident and subsequent demise, that they didn’t control
the manner of [Decedent]’s performance of delivery with the exception
of the specified load pick up and delivery points and times for the
aforesaid, that [Decedent] was only responsible for the results, that
[Decedent]’s payments were by the load, job, mile, or percentage of the
transported load less a dispatch amount, that they didn’t train
[Decedent] for the operation of the tractor-trailer, that there wasn’t a
continuing relationship between the Defendants and [Decedent] with
work at frequently or recurring intervals, that there were no set hours
of work for [Decedent], that [Decedent]’s work wasn’t performed on
[Race]’s premises, that [Decedent] could and did turn down loads, that
[Decedent]’s performance of services in an order or sequence and in
accordance with [Race]’s specifications wasn’t required with the
exception of the load pick up and delivery points and times for the
aforesaid at the time of the accident and subsequent demise, and that
there were no payments to [Decedent] by the hour, week, or month.
F.F. No. 35. Accordingly, the WCJ determined that Claimant did not sustain her
burden of proving that Decedent’s death was caused by an injury he sustained during
his employment with one of Alleged Employers. C.R., Item No. 11, Conclusions of
Law No. 4. Therefore, the WCJ denied Claimant’s Fatal Claim Petitions. See C.R.,
Item No. 11.
Claimant appealed to the Board which affirmed the WCJ’s decision. The
Board determined the WCJ’s factual findings were supported by substantial
evidence, and the WCJ did not commit an error of law in determining that Decedent
was an independent contractor at the time of his death. Claimant timely appealed to
this Court.
5
II. Analysis
On appeal, Claimant argues the Board’s decision should be reversed because
the WCJ’s factual findings related to Decedent’s employment status were not
supported by substantial evidence and the WCJ and the Board committed an error of
law in concluding that Decedent was an independent contractor.3 In support of this
argument, Claimant asserts the WCJ found the testimony of Kaolin’s transportation
manager to be “credible and persuasive,” a portion of which the WCJ summarized
as follows:
[Kaolin] doesn’t allow double-brokering, specifically an entity, like
[Race], to hire another person or entity to deliver [Kaolin]’s load. That
prohibition [] is in the contract between [Kaolin] and common carriers,
like [Jatt] and [Race] and the common carrier’s assignment of a job to
3
In the “statement of questions involved” section of Claimant’s brief, Claimant only identified
one question, as follows: “[w]hether the WCJ and [Board] should be reversed because they ignored
substantial evidence proving that Decedent could not be an independent contractor because
[Kaolin] brokered the job to [Race], [Kaolin] would not permit [Race] to give the load to Decedent,
and [Race] knew of this prohibition?” Although this question does not directly allege any errors
of law, the determination of an employer/employee relationship is a question of law, so we will
consider Claimant’s argument as also challenging the WCJ and the Board’s legal conclusion that
Claimant was an independent contractor at the time of his death. See Universal Am-Can, Ltd. v.
Workers’ Comp. Appeal Bd. (Minteer), 563 A.2d 328, 330-31 (Pa. 2000) (employment relationship
is a question of law); Pa.R.A.P. 2116(a) (questions may be considered if they are fairly suggested
by the statement of questions involved).
In the Argument section of Claimant’s brief, Claimant presents arguments that the Board
committed errors of law by not concluding that (a) Kaolin was a statutory employer of Decedent,
(b) Decedent was an employee because he never fulfilled any of the requirements of his
independent contractor agreement, and (c) the WCJ should have granted Claimant’s Yellow
Freight Motion thereby deeming the employment relationship admitted. See Petitioner’s Brief, at
25-33. These allegations of error have not been preserved for our review as they are not stated in
or fairly suggested by Claimant’s statement of the questions involved. See Pa.R.A.P. 2116(a) (“No
question will be considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”); In the Interest of T.W., 261 A.3d 409, 424 n. 9 (Pa. 2021) (question the
appellant did not raise in the statement of questions involved section of its brief was not preserved
for appellate review).
6
a different entity or individual would void the contact between the
common carrier, like [Jatt] and [Race], and [Kaolin]. Mr. Sekhon[, who
operated Race,] had full knowledge of the aforesaid.
F.F. Nos. 23k, 36. The WCJ also noted that Kaolin’s transportation manager
believed Decedent worked for Race. F.F. No. 23d. Claimant also asserts that the
WCJ found the testimony of Race’s operator to be credible, a portion of which the
WCJ summarized as follows:
If [Race] wanted someone else’s delivery of a [Kaolin] load than
[Race], [Kaolin] wouldn’t have allowed that and [Kaolin] wouldn’t
have permitted [Decedent]’s delivery of the load on the date of the
accident. [Decedent] couldn’t do any work for [Kaolin] on his own in
accordance with the terms of the Independent Owner/Contractor
agreement [between Kaolin and Race].
F.F. Nos. 22h, 35.
Claimant argues the WCJ’s and Board’s findings that Claimant was an
independent contractor are not reconcilable with the uncontradicted, credible
testimony that Race did not have the authority to give a Kaolin delivery to an
independent contractor. See Petitioner’s Br. at 15-16. Thus, Claimant argues the
WCJ’s and the Board’s findings were not supported by substantial evidence and the
WCJ’s and Board’s resulting legal conclusion that Decedent was an independent
contractor constitutes an error of law. See id. at 14-23.
In a workers’ compensation appeal, we are “limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of
law was committed, or whether constitutional rights were violated.” Elberson v.
Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n. 2 (Pa. Cmwlth.
2007). “Substantial evidence is such relevant evidence as a reasonable person might
accept as adequate to support a conclusion.” Waldameer Park, Inc. v. Workers’
7
Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003) (citation
omitted). “The WCJ is the ultimate factfinder and has exclusive province over
questions of credibility and evidentiary weight.” Univ. of Pa. v. Workers’ Comp.
Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth. 2011) (citation omitted).
A claimant’s employment status is a “crucial threshold determination that
must be made before granting workers’ compensation benefits[,]” because “[a]n
independent contractor is not entitled to benefits . . . .” Universal Am-Can, Ltd. v.
Workers’ Comp. Appeal Bd. (Minteer), 563 A.2d 328, 330 (Pa. 2000) (citations
omitted). A workers’ compensation claimant “bears the burden of proving all
elements necessary for an award, including the existence of an employer-employee
relationship.” Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home Care, Inc.),
134 A.3d 1156, 1162 (Pa. Cmwlth. 2016) (citing Universal Am-Can, 563 A.2d at
330). The “determination regarding the existence of an employer/employee
relationship is a question of law that is determined on the unique facts of each case.”
Universal Am-Can, 563 A.2d at 330-31 (citation omitted).
Our Court recently set forth our considerations in determining a claimant’s
employment status as follows:
“While no hard and fast rule exists to determine whether a particular
relationship is that of employer-employee or owner-independent
contractor, certain guidelines have been established and certain factors
are required to be taken into consideration....” Hammermill Paper Co.
v. Rust Eng’g Co., . . . 243 A.2d 389, 392 ([Pa.] 1968). Courts consider
many factors including:
(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
8
job; (9) whether work is part of the regular business of
employer; and, (10) the right to terminate employment.
Am. Rd. Lines v. Workers’ Comp. Appeal Bd. (Royal), 39 A.3d 603, 611
(Pa. Cmwlth. 2012); accord Hammermill.
Although no one factor is dispositive, 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. Universal Am–Can; Am. Rd.
Lines. Control 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, 39 A.3d at 611 (citing 3D
Trucking 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 workers’ compensation coverage. Id.; Martin
Trucking Co. v. Workmen’s Comp. Appeal Bd. (Andrushenko & Clark
Searfoss), . . . 373 A.2d 1168 ([Pa. Cmwlth.] 1977). However, payment
is not determinative. Am. Rd. Lines; see Martin. In addition, a tax filing
denoting self-employment, while a relevant factor, is not dispositive on
the issue. See Guthrie v. Workers’ Comp. Appeal Bd. (The Travelers’
Club, Inc.), 854 A.2d 653 (Pa. Cmwlth. 2004). Similarly, the existence
of an employment or independent contractor agreement is another
factor to consider, but it is not, by itself, dispositive. Hammermill.
Edwards, 134 A.3d at 1162-63.
Contrary to Claimant’s assertion, neither Kaolin’s contract with Race, nor
Kaolin’s transportation manager’s belief that Decedent was an employee of Race,
conclusively establishes that Decedent was an employee of Race. Although Race
would be violating its contract with Kaolin by having Decedent transport Kaolin’s
load as an independent contractor, this does not preclude a finding that Decedent
was acting as an independent contractor. Nor does Kaolin’s transportation
manager’s belief that Decedent was Race’s employee. Instead, these were merely
9
factors in determining whether Decedent was Race’s employee. Am. Rd. Lines, 39
A.3d at 611.
The WCJ extensively analyzed and weighed the testimony and documentary
evidence in this matter. See generally C.R., Item No. 11. Each of the WCJ’s factual
findings were supported by testimony or documentary evidence that the WCJ found
to be credible. Id. The evidence the WCJ relied on was sufficient that a reasonable
person would accept it as adequate to support the WCJ’s factual findings. See
Waldameer Park, 819 A.2d at 168. Accordingly, we conclude that the WCJ’s factual
findings related to Decedent’s employment relationships are supported by
substantial evidence. The Board, which is bound by our same standard of review,
did not err in reaching the same conclusion.
In analyzing the WCJ’s legal conclusion that Decedent was an independent
contractor at the time of his death, the Board, after quoting the WCJ’s factual finding
No. 35 (which we have also quoted above), determined
[t]hese credibility determinations and factors laid out by the WCJ
clearly establish both alleged employers lacked control over Decedent’s
work. Universal Am-Can. In addition, they take into consideration
other established factors to show Decedent was an independent
contractor. Specifically, Decedent was responsible for results only, the
terms of agreement between the parties established an independent
contractor relationship, the nature of the work was a skilled truck driver
occupation, Decedent supplied the tools, and payment was done by the
job. Given these factors, including the main control factor, we
determine the WCJ did not err in concluding that Decedent was an
independent contractor.
C.R., Item No. 15, at 9. We agree with the Board’s determination.
III. Conclusion
For the reasons set forth above, we conclude the Board did not err in
determining the WCJ’s findings of fact were supported by substantial evidence and
10
that the WCJ did not commit an error of law when it determined Decedent was an
independent contractor at the time of his death. Therefore, we affirm the Board’s
order.
______________________________
STACY WALLACE, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Manjinder S. Tiwanna, Deceased, : CASES CONSOLIDATED
by Balwinder Kaur, Dependent, :
Petitioner :
:
v. :
:
Jatt Friends, Inc., Kaolin Mushroom :
Farms, Inc., Uninsured Employers :
Guaranty Fund, and USA Freight, Inc. :
(Workers’ Compensation Appeal Board), :
Respondents : No. 852 C.D. 2021
Manjinder S. Tiwanna, Deceased, :
by Balwinder Kaur, Dependent, :
Petitioner :
:
v. :
:
Race, Inc., Kaolin Mushroom :
Farms, Inc., Uninsured Employers :
Guaranty Fund, and USA Freight, Inc. : No. 853 C.D. 2021
(Workers’ Compensation :
Appeal Board), :
Respondents :
ORDER
AND NOW, this 1st day of December, 2022, the Order of the Workers’
Compensation Appeal Board, dated June 30, 2021, is AFFIRMED.
______________________________
STACY WALLACE, Judge