          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brad Remodeling, LLC                      :
(also referred to as Brad                 : No. 335 C.D. 2016
Remodeling, Inc.),                        : Submitted: September 2, 2016
                                          :
                            Petitioner    :
                                          :
                   v.                     :
                                          :
Workers' Compensation Appeal              :
Board (Morris, Uninsured                  :
Employers' Guaranty Fund,                 :
State Workers' Insurance Fund,            :
and ACS Claims Services),                 :
                                          :
                            Respondents   :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                     FILED: January 4, 2017


             Brad Remodeling, LLC (Employer) petitions for review of the
February 23, 2016 order of the Workers’ Compensation Appeal Board (Board) that
affirmed in part and reversed and vacated in part the decision of a workers’
compensation judge (WCJ) granting Christopher Morris’s (Claimant) claim
petition. We affirm.
             On August 13, 2012, Claimant was working at a construction site in
New Jersey converting a former Taco Bell into a Popeye’s, when the scaffolding
on which he was standing collapsed. Claimant has not returned to work and is
currently under the care of Dr. Thomas Mercora, D.O.1 In June 2013, Claimant
filed a complaint against Employer in the Court of Common Pleas of Philadelphia
County in which he averred that he was an independent contractor for Employer at
the time of his injury.2 Reproduced Record (R.R.) at 299a-308a.
                On February 19, 2014, Claimant filed a claim petition against
Employer and the Pennsylvania Uninsured Employer Guaranty Fund (UEGF),3
asserting that he sustained a work-related injury on August 13, 2012, while
working as a carpenter for Employer. UEGF and Employer filed timely answers
denying Claimant’s allegations and specifically denying an employment
relationship between Employer and Claimant.4 The matter was assigned to a WCJ
for hearings.
                During his September 4, 2014 deposition, Claimant testified that he
had worked as a carpenter for about twenty years. Id. at 278a-79a. Claimant said
that he began working for James Bradbury “Brad” Hassell, Employer’s owner,
before Hassell formally created his business, and Hassell paid him at an hourly rate

       1
         Claimant presented the deposition testimony of Dr. Mercora, and the WCJ credited his
testimony in granting the claim petition. However, Claimant’s medical condition is not in
dispute and need not be further addressed.

       2
           The civil case was discontinued effective October 14, 2014.

       3
          UEGF is a separate fund in the state treasury, established in Section 1602 of the
Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section
7 of the Act of November 9, 2006, P.L. 1362, 77 P.S. §2702, for the exclusive purpose of paying
workers’ compensation benefits due to claimants and their dependents where the employer liable
for the payments was not insured at the time of the work injury.

       4
         A claimant must be an employee to be eligible to receive benefits under the Act. See
Sections 103, 104, 301(a) of the Act, 77 P.S. §§21, 22, 431; Universal Am-Can, Ltd. v. Workers’
Compensation Appeal Board (Minteer), 762 A.2d 328, 330 (Pa. 2000). It is the claimant’s
burden to establish an employer/employee relationship to receive benefits. Id.


                                                 2
in cash. Id. at 282a-84a. Claimant testified that after Hassell formed his company,
Hassell hired him to be the foreman starting in 2008. Id. at 284a.
             Claimant acknowledged that he signed a form W-9 on August 16,
2008, identifying himself as an individual/sole proprietor.          Id. at 293a-97a.
Claimant said that Employer paid Claimant via check and issued him a 1099. Id. at
285a.   Claimant stated that he paid taxes on that income and took business
deductions. Id. Claimant also testified that he purchased liability insurance based
on the advice of his former employer when he left that employment in 2007. Id. at
316a-18a. Claimant stated that he maintained liability insurance throughout the
time that he worked for Employer because Hassell told him to keep it. Id. at 318a.
             At a hearing before the WCJ on January 14, 2015, Claimant testified
that Employer was located in Bristol, Pennsylvania; that Hassell had called him in
2008 to offer him work; and that he worked for Employer on several job sites
following his hire. R.R. at 13a. Claimant stated that while he was working for
Employer, approximately 90% of the work he performed was located in
Pennsylvania. Id. Claimant also testified that he did not have a written contract
with Employer. Id. at 16a.
             Claimant stated that while he was working at the Popeye’s site, he
worked eight-hour days, five days per week, according to a schedule set by
Hassell. Id. at 14a. Claimant testified that he followed Hassell’s instructions while
performing his carpentry work because he never saw the blueprints. Id. at 15a.
             Hassell testified by way of deposition that Employer never had any
employees, Claimant was never hired by Employer, and it was Claimant who, as
an independent contractor, approached Employer for work. R.R. at 191a. Hassell
asserted that Claimant was hired directly by Popeye’s, not Employer, to work at


                                         3
the job site in New Jersey. Id. at 192a. He further testified that he never directed
Claimant in the performance of his work and that the blueprints were available to
everyone at the job site to review and follow according to their expertise. Id. at
198a, 235a-36a. Hassell added that he performed weekly inspections to assure that
the work was in accordance with the plans. Id. at 222a.
               According to Hassell, all of the contractors on site, including
Claimant, reported to Popeye’s. Id. at 196a. Hassell also stated that Employer
paid the contractors with money Popeye’s paid to Employer. Id. at 219a-20a.
Hassell agreed that there was no written contract between Claimant and Employer.
Id. at 201a.
               At the January 14, 2015 hearing, Hassell again testified that Claimant
was an independent contractor, not an employee. He reiterated that there was no
written contract between Employer and Claimant, just an oral “American
handshake contract.” R.R. at 52a.
               The WCJ found Claimant’s testimony to be competent, persuasive,
and credible in its entirety. Finding of Fact (F.F.) No. 23. The WCJ found
Hassell’s testimony not credible based on his demeanor, adding that his credibility
was undermined by his assertions that he had no contracts with individuals and was
not familiar with the Construction Workplace Misclassification Act (CWMA).5
F.F. at No. 24.        The WCJ specifically rejected Hassell’s testimony where it
conflicted with Claimant’s testimony and found that Claimant, a Pennsylvania
resident, was hired in Pennsylvania by Employer, a business that was principally
located in Pennsylvania, and performed 90% of his work for Employer in


      5
          Act of October 13, 2010, P.L. 506, 43 P.S. §§933.1–933.17.


                                               4
Pennsylvania. F.F. at Nos. 23, 25. Based on these findings, the WCJ concluded
that extraterritorial jurisdiction had been established.
                The WCJ further found that on August 13, 2012, Claimant was
performing carpentry work for Employer with no written contract as part of
Employer’s regular business, under the direction and control of Hassell, who paid
Claimant hourly and could have terminated Claimant’s employment at any time.
Id. The WCJ concluded that Claimant met his burden of proving that he was
employed by Employer and injured in the course of such employment.
                The WCJ granted Claimant’s petition. The WCJ ordered Employer,
specifically Brad’s Remodeling, LLC/James Bradbury Hassell IV, primarily liable
and the UEGF secondarily liable for all payments due under the award.
                Employer appealed to the Board, which concluded that the WCJ erred
in ordering Hassell to be liable for payment of compensation and reversed and
vacated the WCJ’s order in that regard. The Board affirmed the WCJ’s order in all
other respects.
                On appeal to this Court,6 Employer first argues that the WCJ erred in
exercising extraterritorial jurisdiction over Claimant’s claim under Section 305.2
of the Act,7 which permits recovery of workers’ compensation benefits in
Pennsylvania for injuries sustained extraterritorially if the claimant’s work was

       6
         Our scope of review is limited to determining whether an error of law was committed,
whether constitutional rights were violated, or whether necessary findings of fact are supported
by substantial evidence. City of Philadelphia v. Workers’ Compensation Appeal Board (Brown),
830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003). The WCJ’s authority as the ultimate factfinder in
determining the weight and credibility of testimony and other evidence is unquestioned and not
subject to appellate review. Hayden v. Workmen’s Compensation Appeal Board (Wheeling
Pittsburgh Steel Corp.), 479 A.2d 631, 635 (Pa. Cmwlth. 1984).

       7
           Added by the Act of December 5, 1974, P.L. 782, 77 P.S. §411.2.


                                                5
principally located in Pennsylvania.8 In relevant part, Section 305.2 of the Act
states:

                        (a) If an employe, while working outside the
                        territorial limits of this State, suffers an injury on
                        account of which he, or in the event of his death, his
                        dependents, would have been entitled to the benefits
                        provided by this act had such injury occurred within
                        this State, such employe, or in the event of his death
                        resulting from such injury, his dependents, shall be
                        entitled to the benefits provided by this act, provided
                        that at the time of such injury:

                           (1) His employment is principally localized
                           in this State, or

                           (2) He is working under a contract of hire
                           made in this State in employment not
                           principally localized in any state, or

                           (3) He is working under a contract of hire
                           made in this State in employment principally
                           localized in another state whose workmen's
                           compensation law is not applicable to his
                           employer. . . .

                                               *    *    *

                   (d) As used in this section:

                                               *    *    *

                           (4) A person's employment is principally
                           localized in this or another state when (i) his
                           employer has a place of business in this or
                           such other state and he regularly works at or
                           from such place of business, or (ii) having
                           worked at or from such place of business,

          8
              We have revised the order of Employer’s arguments for the sake of clarity.


                                                    6
                   his duties have required him to go outside of
                   the State not over one year, or (iii) if clauses
                   (1) and (2) foregoing are not applicable, he
                   is domiciled and spends a substantial part of
                   his working time in the service of his
                   employer in this or such other state.
77 P.S. §411.2(a), (d)(4).    Relying on Greenawalt v. Workers’ Compensation
Appeal Board (Bristol Environmental, Inc.), 91 A.3d 305 (Pa. Cmwlth. 2014),
Employer contends that Pennsylvania lacks jurisdiction over Claimant’s New
Jersey injury because Claimant’s work with Employer was not localized in
Pennsylvania. We conclude that the instant matter is distinguishable from
Greenawalt in several ways.
            In Greenawalt, the claimant was a union laborer who worked with the
employer, Bristol Environmental, Inc. (Bristol), a number of times, with each
discrete job ending in a layoff. The claimant’s position with Bristol was not
continuous and, between jobs with Bristol, the claimant was assigned by his union
to work for other employers. The claimant was injured while he was working for
Bristol on a jobsite in New York. Bristol had a place of business in New York
from which the claimant regularly worked.
            The WCJ noted that there was no continuity of previous employment
between the claimant and Bristol to consider for purposes of determining where the
claimant’s employment was principally localized. The WCJ found that at the time
of his injury, the claimant was working under a contract of hire made in
Pennsylvania for employment principally localized in New York. Accordingly, in
Greenawalt, the WCJ dismissed the claim petition for lack of jurisdiction.
            Employer argues that in this case the entire project was performed in
New Jersey and that the WCJ lacked jurisdiction under Greenawalt. However, in
contrast to the facts in Greenawalt, the WCJ here credited Claimant’s testimony

                                          7
that he had continuously worked for Employer since 2008 and that 90% of his
employment was localized in Pennsylvania. The WCJ also found that Claimant
was a resident of Pennsylvania and that Employer was principally localized in
Pennsylvania. These findings are supported by substantial evidence and therefore
cannot be disturbed on appeal. 9
              Employer next asserts that the WCJ erred in concluding that Claimant
was an employee and not an independent contractor under CWMA in light of
Claimant’s binding admissions against interest in his tort action. We disagree.
              In Newman Development Group of Pottstown, LLC v. Genuardi’s
Family Market, Inc., 98 A.3d 645, 655 (Pa. Super. 2014) (citations omitted) the
Superior Court observed that “[t]here are only two types of admissions: judicial
admissions and evidentiary admissions.             Both are limited in scope to factual
matters otherwise requiring evidentiary proof. A party cannot ‘admit’ a legal
theory or question.”
              We note that “admissions are limited to facts as opposed to legal
conclusions.”       Marazas v. Workers’ Compensation Appeal Board (Vitas
Healthcare Corp.), 97 A.3d 854, 860 (Pa. Cmwlth. 2014).                      The question of
whether an employer-employee relationship exists is one of law, based upon
findings of fact.      JFC Temps, Inc. v. Workers’ Compensation Appeal Board
(Lindsay and G&B Packing), 680 A.2d 862, 864 (Pa. 1996) (citing Martin
Trucking Co. v. Workmens’ Compensation Appeal Board, 373 A.2d 1168, 1169

       9
          We examine the entire record to determine whether a reasonable person might find
sufficient evidence to support the WCJ’s findings. A & J Builders, Inc. v. Workers’
Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). If such evidence
is present in the record, the findings must be upheld. Id. We must also view the evidence in the
light most favorable to the prevailing party and give it the benefit of all inferences reasonably
deduced from the evidence. Id.


                                               8
(Pa. Cmwlth. 1977)). Accordingly, Claimant cannot make admissions regarding
his employment status as an independent contractor in a tort filing that are binding
on the WCJ and compel a particular legal conclusion.
             Moreover, Section 3(a) of the CWMA provides:

             For purposes of workers’ compensation ... an individual
             who performs services in the construction industry for
             remuneration is an independent contractor only if:

                   (1) The individual has a written contract to
                   perform such services.

                   (2) The individual is free from control or
                   direction over performance of such services
                   both under the contract of service and in
                   fact.

                   (3) As to such services, the individual is
                   customarily engaged in an independently
                   established trade, occupation, profession or
                   business.
43 P.S. §933.3(a) (emphasis added).
             In Staron v. Workers’ Compensation Appeal Board (Farrier), 121
A.3d 564 (Pa. Cmwlth. 2015) appeal denied, 132 A.3d 460 (Pa. 2016), we relied
on the lack of a written contract at the time of injury to hold that the claimant was
an employee, not an independent contractor.         In the instant matter, Hassell
acknowledged that at no time did the parties have a written contract. Additionally,
the WCJ found that Claimant was under the direction and control of Employer
while performing his services, and the record supports these findings. Based on
these facts, Claimant is not an independent contractor as defined by the CWMA.
             Employer also asserts that Claimant is barred from filing this claim
because the filing of his tort action in the Philadelphia County Court of Common

                                         9
Pleas amounted to a binding election of remedy. For an employee, the Act is the
exclusive remedy for employer liability. See Section 303(a) of the Act, 77 P.S.
§481(a). While the Act provides the exclusive remedy, it allows for the election of
remedies under Section 305(d) of the Act where, as here, the employer is not
insured.10 In this case, because Claimant subsequently withdrew the civil action he
filed, we conclude that the WCJ did not err in deciding his claim petition.
              In sum, the WCJ’s findings that Claimant was an employee of
Employer, his work was principally located in Pennsylvania, and Claimant was
injured during the course of employment, support the WCJ’s conclusion that
Claimant is eligible for benefits. Accordingly, we affirm.




                                          MICHAEL H. WOJCIK, Judge




       10
            Section 305(d) provides that “[w]hen any employer fails to secure the payment of
compensation under this act as provided in sections 305 and 305.2, the injured employe or his
dependents may proceed either under this act or in a suit for damages at law as provided by
article II.” 77 P.S. §501(d).


                                             10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brad Remodeling, LLC                        :
(also referred to as Brad                   : No. 335 C.D. 2016
Remodeling, Inc.),                          :
                                            :
                            Petitioner      :
                                            :
                   v.                       :
                                            :
Workers' Compensation Appeal                :
Board (Morris, Uninsured                    :
Employers' Guaranty Fund,                   :
State Workers' Insurance Fund,              :
and ACS Claims Services),                   :
                                            :
                            Respondents     :



                                         ORDER


             AND NOW, this 4th day of January, 2017, the order of the Workers’
Compensation Appeal Board, dated February 23, 2016, is AFFIRMED.




                                          __________________________________
                                          MICHAEL H. WOJCIK, Judge
