Staron v. Workers' Compensation Appeal Board

CONCURRING OPINION by

Judge BONNIE BRIGANCE LEADBETTER.

I join in the well-reasoned majority opinion. I write separately simply to note two observations. First, we are not holding, as the claimant seems to suggest, that the written contract was invalid because it was signed after he began work without some additional consideration, or that the Construction Workplace Misclassification Act (CWMA)¹ requires that a written contract be signed before one begins work in order to be deemed an independent contractor. This case does not require us to consider those issues and we have not. We simply hold that the elements required by the CWMA to establish independent contractor status in the construction industry must have been in place before the claimant suffers his workplace injury.

Second, I would point out that other relevant elements necessary to establish independent contractor status were not met here. In addition to the written contract requirement, the CWMA requires that putative employers establish, inter alia, that:

(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.

[[Image here]]

(6) The individual maintains liability insurance during the term of this contract of at least $50,000.

Section 3(b)(2), (3), (4) and (6) .of the CWMA, 43 P.S. § 933.3(b)(2), (3), (4) and (6). It is difficult to understand how a laborer hired at $100 per day could ever be shown to satisfy the criteria in paragraphs (2) and (3), but that aside, the employer here presented no evidence that the claimant had a separate business location [paragraph (4)] or maintained $50,000 of liability insurance [paragraph (6)]. In other words, even if a written contract had been signed before the claimant’s injury, he would not have been considered an independent contractor because each of the criteria in Section 3(b) must be proven. Employer simply did not come close to meeting its burden of proof.

Judge RENÉE COHN JUBELIRER joins in this concurring opinion.

1 . Act of October 13, 2010, P.L. 506, 43 P.S. §§ 933.1-933.17.