Johnson v. Workmen's Compensation Appeal Board

631 A.2d 693, 158 Pa. Commw. 76, 1993 Pa. Commw. LEXIS 533
CourtCommonwealth Court of Pennsylvania
DecidedAugust 23, 1993
Docket327 C.D. 1992
StatusPublished
Cited by48 cases

This text of 631 A.2d 693 (Johnson 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
Johnson v. Workmen's Compensation Appeal Board, 631 A.2d 693, 158 Pa. Commw. 76, 1993 Pa. Commw. LEXIS 533 (Pa. Ct. App. 1993).

Opinions

PELLEGRINI, Judge.

Stephen Johnson (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board) affirming the Referee’s decision denying him workmen’s compensation benefits because he was not an employee of the Dubois Courier Express (Courier/Newspaper) at the time he was injured.1

On January 2, 1986, Claimant took over his sister’s newspaper delivery route and began delivering newspapers for the Courier. At that time, he was thirteen years old. On the evening of June 6,1986, while making deliveries, Claimant was [79]*79hit by a car as he attempted to cross the street. He sustained serious injuries and incurred significant medical expenses.

Claimant filed a claim petition for workmen’s compensation benefits. The Courier filed an answer denying responsibility and claiming that Claimant was an independent contractor rather than an employee of the Courier at the time of his injury. As such, it claimed his injury was not covered under The Pennsylvania Workmen’s Compensation Act (Act).2

At the hearing before the Referee, the parties agreed to bifurcate the case so that it could first be determined whether Claimant was an employee of the Courier at the time he was injured. After hearing testimony from both parties, the Referee made the following pertinent findings of fact:

5. At the time of taking over the paper route, the claimant reported to the Defendant’s Promotion Director and was, basically, interviewed and instructed in the duties and responsibilities that were expected of him by the Defendant, as well as by the customers being served. Each paper boy is assigned a certain area, or route, within which he delivers newspapers to customers.
6. There was no written contract or agreement between the Defendant and any paper boy.
9. The Defendant supplies and delivers newspapers to a designated drop point selected by the carrier. In this case, the claimant’s newspapers were delivered, along with newspapers for other carriers in the city, to Urban’s Gas Station. The newspapers were picked up by the claimant and the paper boys, and they then proceeded to deliver the newspapers.
10. The Defendant supplied the bag in which the newspapers were carried, but there was no uniform, or dress code for any paper boy.
11. Newspapers were delivered six (6) days per week, and the carrier paid 5 cents for each newspaper delivered, on a daily basis. Carriers were paid by check mailed to them every two weeks.
[80]*8012. Customers paid the Defendant directly for the newspapers; and the carrier did not handle any money. The carrier, or news boy, did not have the right to increase or decrease the price of the newspaper.
13. The Defendant paid the carrier an extra $1.00 every two (2) weeks for good service, and 50 cents was deducted for any customer that was “missed”, with no delivery.
14. The Defendant delivered newspapers to the drop point at approximately 2:45 p.m.; and the paper boy was expected to deliver the newspaper to the customer no later than 6:00 p.m.
15. The paper boy determined the manner in which he delivered the newspaper; by foot, bicycle, or other vehicle. The paper boy was not reimbursed for any expense of equipment or materials used in delivery.
16. The claimant determined his own route of travel; and controlled the means of accomplishing the delivery of the newspaper.
17. Very little skill or instruction was required to deliver the newspapers in question.
18. The claimant would deal directly with the customer to obtain instructions as to where to leave the newspaper at the customer’s home or place of business.
19. The Defendant exercised no day to day supervision over the claimant, or any other paper boy.
20. The Defendant did not fix the claimant’s working hours, other than the newspapers were expected to be delivered prior to 6:00 p.m. so that the customers received “news, not history”.
21. The claimant, himself, determined when or at what hour he would deliver the newspapers, within the recommended time frame of 2:45 p.m. to 6:00 p.m., so as to maintain customer satisfaction.
22. The claimant was free to substitute another person to deliver the newspapers without notice or prior approval by the Defendant.
[81]*8123. The Defendant did not direct the manner and way that the claimant carried out the delivery of the newspapers in question.
24. The claimant and other paper boys were permitted and encouraged to solicit customers within their area, so as to increase their earnings.
25. If a customer requested the Defendant to deliver a newspaper to his home, and that home was located within the claimant’s delivery area, the Defendant would notify the claimant of the new customer; and the claimant would handle the delivery of that newspaper.
26. The Defendant did not withhold any taxes or other charges from the claimant’s pay; and the claimant was not treated as one of the Defendant’s regular employees, as far as benefits, etc., were concerned.
27. The newspaper masthead contained a notice that if any customer had a service problem, to call the Circulation Department; and any complaints on delivery or service were made by the customer directly to the Defendant.
28. In the event of customer dissatisfaction, or other cause shown, the Defendant had the right to dismiss or fire the claimant or any other paper boy, if that paper boy did not remedy the situation that prompted the complaint.

Based on these findings, the Referee found that the Courier did not have any right to control Claimant’s performance of his duties and did not exercise any control over the manner in which he performed those duties. As such, Claimant had failed to meet his burden of proving by credible evidence that he was an employee of the Courier at the time he was injured. Claimant filed an appeal with the Board, arguing that the evidence demonstrated that he was an employee of the Courier at the time he was injured, not self-employed. The Board affirmed the Referee’s decision and this appeal followed.3

[82]*82The sole issue before us is whether Claimant was an employee of the Courier or an independent contractor at the time he was injured for purposes of collecting workmen’s compensation benefits. Initially, we note that in order to qualify for workmen’s compensation benefits, a claimant has the burden of establishing that an employment relationship existed at the time of the injury and that the injury was related to the employment.4 Sixmo v. Workmen’s Compensation Appeal Board (Dileo’s Restaurant, Inc.), 137 Pa.Commonwealth Ct. 487, 586 A.2d 1008 (1991). Whether a claimant is an independent contractor or an employee is a question of law fully reviewable by this court. Lynch v.

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Bluebook (online)
631 A.2d 693, 158 Pa. Commw. 76, 1993 Pa. Commw. LEXIS 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-workmens-compensation-appeal-board-pacommwct-1993.