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Workers Compensation News Fall 2017

November 28, 2017

PA Workers’ Compensation Cases of Note

By John W. Zatkos, Jr., Esq.


Traveling employee made a poor decision, but was in the scope of employment when injured

Wilgro Services, Inc. v. WCAB (Mentusky) looks at whether the actions that caused injury to a traveling employee were deliberate and non-work related. Robert Mentusky was working as an HVAC mechanic and had to access the roof of a building that varied from one to two stories. Over the course of working on the roof, he had used a ladder placed by roofers who were also working on the same building. Mr. Mentusky testified that he had accessed the roof by this ladder since the job had begun and as it was always left overnight, he also used it at the end of his work shift.

On July 27, 2014, Mr. Mentusky finished his shift and saw that the ladder and the roofers were gone. The building roof hatch was locked. He tried to call two employees but got an answering machine. He said that he did not bother to call the building owner because he never answered his phone nor did he call the maintenance man, who had told him earlier in the day he was leaving at 1:00. Mr. Metusky waited about 30 minutes for someone to come and then made the decision to jump. He significantly injured himself and reported his injuries that day to his employer.

Medical evidence was not in dispute. The employer argued that the worker’s injuries were not work-related; jumping from the roof was foreign to his employment and thus removed him from the scope of employment. Further, the employer argued that the jump from the roof was a deliberate and intentional act. The injured worker acknowledged that the decision to jump from the roof was not the best decision.

The Workers’ Compensation Judge (WCJ) found that Mr. Metosky was in the course of employment when he jumped from the roof; that he did not intentionally injury himself; however misguided his decision was, the Workers’ Compensation Act is a no-fault system; he did not violate any work order as there was no proper protocol established by the employer if an employee was stuck on a roof.

The employer appealed and the Workers’ Compensation Appeal Board upheld the WCJ’s decision. The WCAB stated “Certainly, jumping off a roof was not one of the Claimant’s job duties, but exiting a work site is a necessary component of any job and so advanced Employer’s business and affairs.” The injured worker was not acting on a whim or engaged in horseplay; therefore, he was entitled to Workers’ Compensation benefits.

What does this mean? A traveling employee is within the scope of employment, even if his decision making was “not smart…and may have been misguided.”


An assessment of the facts establishes an injured worker as an Independent Contractor

In Hawbaker v. WCAB (Kriner’s Quality Roofing), the injured worker, Mr. Hawbaker, argued that he was incorrectly classified as an independent contractor and thus denied Workers’ Compensation. Mr. Hawbaker signed a written “Independent Contractor Agreement” with the employer, Kriner in January 2012. In December of 2012, he stopped showing up for work, due to substance abuse problems. In March 2013, Mr. Hawbaker contacted the employer about resuming work. The employer agreed, requiring him to obtain liability insurance and provide proof of insurance. Mr. Hawbaker fell off a roof later that November. Because he was classified as an Independent Contractor, he was not eligible for Workers’ Compensation.

Independent Contractor versus Employee is a very tricky area of the law (see our article Classification Issues: Employees versus independent contractors – the UberBLACK example). Construction workers have guidance under the Construction Workplace Misclassification Act. The Act has codified case law on determining whether an individual is an employee or an independent contractor based on these factors:

  1. Control of manner the work is done;
  2. Responsibility for result only;
  3. Terms of agreement between parties;
  4. Nature of 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 job;
  9. Whether work is part of the regular business of the employer;
  10. The right to terminate employment.

Mr. Hawbaker first contended he did not have a written contract because he had stopped working and then came back and did not sign a new contract. However, the terms of the contract he signed in 2010 said that the company may terminate this contract by 10 working days’ notice to the contractor. The contract also provided that the duration of services was in effect until one of the parties served 30 days written notice to the other. Kriner’s never gave written notice of termination, and neither party served written notice ending the duration of services, so when Mr. Hawbaker returned to work, he was still under the original contract.

Mr. Hawbaker contended that Kriner’s directed the time and place of the job. The employer responded that the worker could choose what job he wanted to perform, could decline work and could leave in the middle of a job. He was also free to seek jobs from other contractors or undertake his own. The WCAB concluded that the worker was free from direction and control of the employer, thus another argument in favor of Mr. Hawbaker being an independent contractor.

Records also showed that the injured worker provided services to two other similar companies and identified his business as “Justin L. Hawbaker I” and himself as “owner” on his insurance application. Mr. Hawbaker also acknowledged that he brought his own tools and was responsible for the end product and had to fix any mistakes. In light of all the evidence, the WCAB sided with the WCJ and found that the injured worker was indeed an independent contractor and not eligible for Workers’ Compensation.

What does this mean? While the difference between an independent contractor and an employee can be murky, there are a number of factors to consider to determine if the individual is correctly categorized. If the worker is indeed an employee, he or she is covered by the Workers’ Compensation Act. If he or she is an independent contractor, he or she is not.

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