Zwick v. Workers' Compensation Appeal Board

106 A.3d 251, 2014 Pa. Commw. LEXIS 563
CourtCommonwealth Court of Pennsylvania
DecidedDecember 11, 2014
StatusPublished
Cited by9 cases

This text of 106 A.3d 251 (Zwick 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
Zwick v. Workers' Compensation Appeal Board, 106 A.3d 251, 2014 Pa. Commw. LEXIS 563 (Pa. Ct. App. 2014).

Opinion

OPINION BY

Senior Judge FRIEDMAN.

Mark Zwick petitions for review of the February 27, 2014, order of the Workers’ Compensation Appeal Board (WCAB) affirming in part and reversing in part the decision of a workers’ compensation judge (WCJ) to grant the claim petitions filed by Marco Popchocoj (Claimant) and dismiss the joinder petition filed by the Uninsured Employers Guaranty Fund (Fund). Specifically, the WCAB reversed the WCJ’s dismissal of the Fund’s joinder petition and modified the WCJ’s order to make Zwick secondarily liable to Claimant as a statutory employer under section 302(a) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 461,1 We affirm.

On August 2, 2010, Claimant filed a claim petition, alleging that he injured his right hand while doing construction work for Adarlan Rodrigues on July 5, 2010. As a result of his injuries, Claimant underwent amputations of his right pinky finger and right thumb.

A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act....

On October 15, 2010, Claimant filed a claim petition for benefits from the Fund, alleging that he suffered a work-related injury to his right hand on July 5, 2010, resulting in the amputations of his right pinky finger and right thumb and that this work-related injury caused a temporary, total disability. On May 31, 2011, the Fund filed a petition to join Zwick as an additional defendant.2 The WCJ consolidated the claim petitions and joinder petition for disposition.

At a hearing before the WCJ on February 10, 2011, Claimant testified that he worked five days per week for Rodrigues and earned $100 per day. Claimant, a citizen of Guatemala,.is an undocumented worker who came to the United States in 2007. (WCJ’s Findings of Fact, Nos. la, le, lh.) Claimant typically would meet Rodrigues at a local Home Depot, and Rodrigues would drive Claimant to the job site. At the job site, Rodrigues directed Claimant’s work activities by telling him what projects to do and where to perform the work. (Id., Nos. If — lg.)

On the morning of July 5, 2010, Claimant was installing a hardwood floor at a private residence located at 866 North 20th Street in Philadelphia (Property). (Id., Nos. lb, 6c.) Claimant was using an electric saw, which did not have a protective guard, to cut a piece of wood. The [253]*253wood “kicked back” toward Claimant. When Claimant went to grab the piece of wood, his right hand got caught in the electric saw, severing his right thumb and right pinky finger. Claimant also sustained a cut across the palm of his right hand. (Id., No. lb.) Rodrigues gave Claimant the electric saw used on the day of the accident. (Id., No. lg.)

Claimant was taken via ambulance to Thomas Jefferson University Hospital, where his right pinky finger and right thumb were amputated. (Id., Nos. Id, 11.) After Claimant’s discharge from the hospital, Rodrigues informed Claimant that he does not carry workers’ compensation insurance. (Id., No. lo.)

Since the accident, Claimant has not returned to work. He has looked for work but has not been hired. (Id., No. li.) Claimant is right-handed and has been unable to fully use his right hand since the accident. He continues to feel pain in his right hand and cannot move or bend his remaining fingers. (Id., Nos. lj — lk.)

Claimant presented the medical report of Daisy Rodriguez, M.D., who examined Claimant on February 22, 2011. (Id., No. 5a.) Dr. Rodriguez diagnosed Claimant with loss of use of his right hand; amputations of his right pinky finger and right thumb; contractures of his right index, middle, and ring fingers; keloid of his right hand along the palmar aspect of his palm and his index, middle, and ring fingers; a retained suture; neuropathy of the fingers; a claw deformity of his right hand; and chronic pain. (Id., No. 5g.) Dr. Rodriguez opined that Claimant’s diagnoses resulted from his July 5, 2010, work injury and that, as of February 22, 2011, Claimant should refrain from working. (Id., Nos. 5g-5h.)

At a hearing before the WCJ on May 18, 2011, Adarlan Rodrigues testified that he is self-employed but was working for Zwick at the time of Claimant’s accident. (Id., Nos. 6a-6b.) Rodrigues hired Claimant to perform construction work at the Property. (Id., No. 7f.) Zwick would tell Rodrigues what to do, and Rodrigues would tell Claimant what to do. (Id., No. 6e.) Zwick would give money to Rodri-gues, who would then pay Claimant. (Id., No. 6g.)

At a hearing before the WCJ on August 31, 2011, Zwick testified that he is a licensed realtor and investor and does construction rehabilitation work on residential properties. (Id., No. 7a.) Zwick hired Rodrigues to do construction work at the Property and paid him approximately $750 per week. (Id., Nos. 7g, 7i.) Zwick did not own the Property but was fixing it up for resale. (Id., No. 7h.) Zwick hired other contractors to work on the Property in addition to Rodrigues. (Id., No. 7g.) Zwick told Rodrigues what work needed to be done, but he did not tell him how to perform specific job activities. (Id., No. 71.) Zwick would inspect the Property periodically and would approve the completed work before paying Rodrigues. (Id., Nos. 7m-7n.) Zwick did not know Claimant but learned of Claimant’s injury after the accident. (Id., No. 7o.) Zwick does not carry workers’ compensation insurance. (Id., No. 7p.)

The WCJ credited the testimony of Claimant and Zwick and the medical opinions of Dr. Rodriguez. The WCJ credited Adarlan Rodrigues’ testimony only to the extent that it was consistent with Claimant’s. (WCJ’s Findings of Fact, Nos. 9-12.) The WCJ found that Claimant sustained a work-related injury on July 5, 2010, resulting in the total loss of use of his right hand and granted Claimant’s claim petitions. (Id., No. 15.) The WCJ further found that Rodrigues was Claimant’s employer and that Zwick was not Claimant’s statutory employer at the time [254]*254of his work-related injury because thework performed was not a regular part of Zwick’s business. {Id., Nos. 11-12.) Therefore, the WCJ concluded that Rodri-gues was primarily liable and the Fund was secondarily liable for Claimant’s workers’ compensation benefits and dismissed the Fund’s joinder petition.

On appeal, the WCAB affirmed in part and reversed in part. The WCAB affirmed the WCJ’s award of benefits but disagreed with the WCJ’s finding that Zwick was not Claimant’s statutory employer under the Act. The WCAB determined that Zwick was a “contractor” under section 302(a) of the Act. Therefore, the WCAB concluded:

Defendant Rodrigues remains primarily liable for Claimant’s workers’ compensation benefits. In the event Defendant Rodrigues defaults on payment of those benefits because of [his] uninsured status, Defendant Zwick remains secondarily liable as a statutory employer. In the event Defendant Zwick also defaults on payment of those benefits as a result of [his] uninsured status, the [Fund] remains secondarily liable to [Zwick] for payment of Claimant’s benefits.

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Cite This Page — Counsel Stack

Bluebook (online)
106 A.3d 251, 2014 Pa. Commw. LEXIS 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zwick-v-workers-compensation-appeal-board-pacommwct-2014.