Wagner v. Workers' Compensation Appeal Board

45 A.3d 461, 2012 WL 1970426, 2012 Pa. Commw. LEXIS 167
CourtCommonwealth Court of Pennsylvania
DecidedJune 4, 2012
DocketNo. 1527 C.D. 2011
StatusPublished
Cited by11 cases

This text of 45 A.3d 461 (Wagner v. Workers' 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
Wagner v. Workers' Compensation Appeal Board, 45 A.3d 461, 2012 WL 1970426, 2012 Pa. Commw. LEXIS 167 (Pa. Ct. App. 2012).

Opinion

OPINION BY

Judge LEAVITT.

Anthony Wagner (Claimant) petitions for review of an adjudication of the Workers’ Compensation Appeal Board (Board) that denied his claim for benefits for the reason that he was exempt from coverage under his employer’s workers’ compensation policy. The Board affirmed the dis-positive factual finding of the Workers’ Compensation Judge (WCJ) that Claimant, an executive officer of the corporation that employed him, had exempted himself from coverage, in accordance with the Workers’ Compensation Act (Act).2 Discerning no error in the Board’s adjudication, we affirm.

On June 24, 2009, Claimant filed a claim petition against Anthony Wagner Auto Repairs & Sales, Inc. (Employer) alleging that he had sustained work-related injuries in an automobile accident on July 21, 2006.3 Employer’s insurer, Harleysville Mutual Insurance Company (Insurer), denied the allegations. A hearing before a [463]*463WCJ was scheduled and the issues were bifurcated. The first issue was whether Claimant, an executive officer of Employer, had waived workers’ compensation coverage for himself under authority of Section 104 of the Act. It states, in relevant part, as follows:

An executive officer of a for-profit corporation or an executive officer of a nonprofit corporation who serves voluntarily and without remuneration may, however, elect not to be an employe of the corporation for the purposes of this act. For purposes of this section, an executive officer of a for-profit corporation is an individual who has an ownership interest in the corporation, in the case of a Subchapter S corporation ... or an ownership interest in the corporation of at least five per centum, in the case of a Subchapter C corporation....

77 P.S. § 22 (emphasis added).

At the hearing, Claimant testified that from 1994 to 2004 he operated a motor vehicle garage, gas station, used car lot, and convenience store. He operated this business as a sole proprietorship, under the fictitious name “Wagner’s Coach Repairs & Sales.” In January 2004, Claimant’s accountant, Michael Rowley, incorporated the business under the name “Anthony Wagner Auto Repairs & Sales, Inc.” Claimant is the sole shareholder of the corporation, which is organized under the Internal Revenue Code as a Subchap-ter S corporation. Claimant testified that the corporation employs two individuals: a mechanic’s assistant and himself, the mechanic.

Claimant stated that the J.L. Davis Insurance Agency (Agency) has been his insurance agent since 2002. Sometime in 2003, Agency assigned Lisa Tori to be responsible for his account. Tori reviewed his insurance needs; replaced expired policies; and placed all policies and relevant documents in a three ring binder for him. Claimant stated that his meetings with Tori usually took less than 15 minutes, during which time he signed whatever Tori asked him to. He did not read any of the documents he signed.

Claimant stated that he informed Agency in January of 2004 that he had incorporated his business and was advised that any necessary changes to his insurance coverage would be made at the August renewal meeting. Tori visited his shop in August, and he signed all the documents she presented. He did not recall signing any paperwork relating to his incorporation of the business. Claimant testified that he was not informed that, as an executive officer of the corporation, he could waive workers’ compensation coverage for himself and pay a lower premium for the policy. Reproduced Record at 193a-194a (R.R.-).

Claimant then offered into evidence a letter from Tori dated August 16, 2005. The first sentence of the letter states that attached to it were forms “to exclude [Claimant]” from workers’ compensation coverage now that the business was incorporated. Employee Exhibit 3; R.R. 317a. Attached to the letter exhibit was a Form LIBC-509, “Application for Executive Officer Exemption,” and a Form LIBC-513, “Executive Officer’s Declaration,” which were blank.4 Claimant also offered into evidence executed copies of these forms. Form LIBC-513 states, in pertinent part, that “I, the below named Executive Officer, do hereby knowingly and voluntarily elect not to be an employee of the below [464]*464named corporation for purposes of the Pennsylvania Workers’ Compensation Act, and waive all benefits and rights to which I might be entitled under the Pennsylvania Workers[’] Compensation Act.” Employee Exhibit 4; R.R. 322a. This statement was followed by Claimant’s signature. Claimant acknowledged signing Forms LIBC-509 and 513 but stated that he did not read them first and that he would not have signed them had he known that he was waiving workers’ compensation coverage.

On cross-examination, Claimant acknowledged that he graduated from high school and understands and reads English. He reiterated that typically he does not read official documents, including business contracts, invoices and tax returns, before signing them.

Insurer then presented the testimony of Tori. She explained that Claimant instructed her to deal with his girlfriend, Donna Dixon, about his insurance matters. Tori testified that she first learned Claimant had incorporated his business in August of 2005, when Dixon called her and informed her of the change. Tori testified that she advised Dixon that unlike a sole proprietorship, employees of a corporation, even officers, can be covered for workers’ compensation insurance. However, Claimant’s earnings would have to be included in the payroll on which the premium is calculated. Dixon responded that Claimant wanted the premium to remain the same and, thus, would exclude himself from workers’ compensation coverage.

On August 16, 2005, Tori sent Claimant the letter that he offered into evidence as Employee Exhibit 3, which advised Claimant to fill out the attached Forms LIBC-509 and 513 so that he could be excluded from coverage. Tori testified that the exhibit was inaccurate because she had sent Claimant forms that were almost fully completed, except for the corporate form and federal tax identification number that needed to be provided by Claimant. He provided this information and returned the forms with his signature.

Upon receipt of Forms LIBC-509 and 513, Insurer requested final payroll information for the 2004-2005 policy year and an estimated payroll for the 2005-2006 policy year. The payroll information for both years included only the wages of the mechanic’s assistant. At the time he prepared the payroll information, Claimant’s accountant, Rowley, advised Tori that Claimant was to be exempt from workers’ compensation coverage. Accordingly, Claimant’s wages were not reported to Insurer or used to calculate the premium for Employer’s workers’ compensation policy.

Next, Javina Davis, who is employed by Agency, testified. When Claimant became a client of Agency, she explained to him that, as a sole proprietor, he could not be covered under the workers’ compensation insurance policy. She then explained to Claimant that workers’ compensation insurance premium is calculated on the basis of payroll. Annual payroll is estimated at the inception of the policy period. After conclusion of the policy year, the payroll is audited and the premium is adjusted to reflect deviations from the estimated payroll.

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Cite This Page — Counsel Stack

Bluebook (online)
45 A.3d 461, 2012 WL 1970426, 2012 Pa. Commw. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-workers-compensation-appeal-board-pacommwct-2012.