Dutrow v. Workmen's Compensation Appeal Board

632 A.2d 950, 158 Pa. Commw. 637, 1993 Pa. Commw. LEXIS 625
CourtCommonwealth Court of Pennsylvania
DecidedOctober 5, 1993
DocketNo. 2760 C.D. 1992
StatusPublished
Cited by3 cases

This text of 632 A.2d 950 (Dutrow v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dutrow v. Workmen's Compensation Appeal Board, 632 A.2d 950, 158 Pa. Commw. 637, 1993 Pa. Commw. LEXIS 625 (Pa. Ct. App. 1993).

Opinion

CRAIG, President Judge.

The claimant, Christine Dutrow, appeals from a decision of the Workmen’s Compensation Appeal Board reversing the decision of a referee that included additional sources of income in the calculation of the claimant’s average weekly wage. We are asked whether the board erred by not permitting benefits for work which the referee found to be domestic duties and responsibilities. We affirm in part and reverse in part.

The facts as found by the referee are as follows:

1. Claimant suffered a work related injury on May 11, 1987.
2. Claimant filed a petition for review of compensation payable alleging a higher weekly wage not indicated on the prior notice of compensation.
3. Claimant was paid wages by Barry Heckard, at the time of her work related injury for domestic and job related responsibilities on a weekly basis at $10.00 per week.
4. Claimant was paid wages at the time of her work related injury of $25.00 per week from Laura Dutrow for [640]*640the performance and discharge of domestic duties and responsibilities.
5. Claimant was paid wages at the time of her work related injury of $25.00 per week from Evelyn Rebruck for the performance and discharge of domestic duties and responsibilities.
6. Claimant was paid wages at the time of injury of approximately $50.00 per month from Betty Heckard for the performance and discharge of domestic duties and responsibilities.
7. Since the time of her work related injury, claimant has not been able to perform the domestic duties and responsibilities for compensation as she had done prior to the work related injury. (Emphasis added.)

The referee concluded that, based on the above facts, the claimant’s “prior notice of compensation was materially incorrect in that she had a higher average weekly wage at the time of the filing of the notice of compensation payable”. Therefore, the referee ordered that the claimant receive compensation at the increased rate of $180.50 a week plus interest on past due compensation.

The employer, Heckard’s Catering, appealed the referee’s decision to the board which reversed the order. The board noted that s 321 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. s 676 (the Act), provides that “(n)othing contained in this Act shall apply to or in any way affect any person who at the time of injury is engaged in domestic service.” Then the boarded stated that “[t]his exemption is all inclusive such that the concurrent wages identified by the Referee should not have been included in determining Claimant’s average weekly wage. These wages were generated by domestic service.”

Now the claimant comes before this court and asserts that the board erred by determining that she is not entitled to additional income as ordered by the referee. Our scope of review is limited to determining whether the referee’s findings of fact are supported by substantial evidence, and whether the [641]*641board or the referee violated the claimant’s constitutional rights, or committed an error of law. Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

In order for a person engaged in domestic services to receive benefits under the Act, “the employer of any such person shall have, prior to such injury, by application to the Workmen’s Compensation Board, approved by the Board, elected to come within the provisions of the Act”. Section 321 of the Act. In the case before us, none of the claimant’s employers ever applied to come within the provisions of the Act. Therefore, to the extent that the claimant is engaged in domestic service, her loss of wages for a work-related injury cannot be compensated. Additionally, we note that whether or not work constitutes domestic service under the Act is a question of law reviewable by this court.

In the case before us, the referee found that the claimant performed domestic services, yet nonetheless awarded supplemental benefits to reflect her lost wages. In addition, although the board reversed the referee and reinstated the claimant’s earlier compensation rate, our review of the record reveals that a portion of the claimant’s additional earnings is compensable under the Act as incidental work performed at the request of her employer.

This court has stated that domestic service is only that work which serves the needs of a household. Viola v. Workmen’s Compensation Appeal Board (Welch), 121 Pa.Commonwealth Ct. 47, 549 A.2d 1367 (1988). In Viola this court held that a claimant, who was hired to care for her employer’s invalid wife, and whose job included administering medication, feeding, bathing and dressing the employer’s wife, and helping her in and out of bed was not a domestic servant under the Act. This court placed great weight on the fact that the claimant only administered to the specialized medical needs of her ward.

Claimant did not serve, nor was she employed to serve, the needs of the household. All of Claimant’s job duties as [642]*642found by the referee and supported by substantial evidence in the record related solely to the unique needs of [the employer’s wife], rather than the general needs of the household.
The referee specifically found that Claimant did not perform any housework and performed no domestic or maid services. There was testimony that Claimant did not do any housecleaning and was hired only to care for [the employer’s wife] ...
Because Claimant’s job involved performing duties similar to those of a nurse’s aide ... and did not involve performing household duties, we conclude that Claimant was not engaged in “domestic service” for purposes of the Act. (Footnotes omitted.)

Such is not the case with the claimant’s work here. At the hearing before the referee regarding the petition for review, the claimant, on direct examination, described the work for which she now seeks additional compensation benefits as follows:

Q.: Prior to May 11, 1987, other than your employment at Heckard’s Catering, did you have any other sources of income?
A.: Yes, I did a lot of extra jobs. From November of that year, ’86 previous, I had worked for my neighbor Evelyn Rebruck when she was ill until the accident and I was doing baby-sitting, picking up my little grandson from school, which my son and daughter-in-law reimbursed me for each week.
I had been cleaning for Mrs. Heckard [the mother of the owner of the employer] and at the business and also, other than my check, Barry Heckard [the owner of the business] had given me $10 extra in my check each week for doing onions, lettuce and other things because I came in at 5:30 in the morning before the others came in at 6:00 or later.
Q.: Specifically, what type of duties did you perform for Barry and Betty Heckard?
[643]*643A.: ...

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632 A.2d 950, 158 Pa. Commw. 637, 1993 Pa. Commw. LEXIS 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dutrow-v-workmens-compensation-appeal-board-pacommwct-1993.