              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Fakhriddin Baykhanov,                           :
                              Petitioner        :
                                                :
                       v.                       :    No. 245 C.D. 2018
                                                :    Submitted: June 29, 2018
Workers’ Compensation Appeal                    :
Board (Onixe Express),                          :
                       Respondent               :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER1                               FILED: October 12, 2018


      Fakhriddin Baykhanov (Claimant) petitions for review of a February 2, 2018
Order of the Workers’ Compensation (WC) Appeal Board (Board), affirming a
decision by a WC Judge (WCJ) that Claimant was an independent contractor, not an
employee, and thus was ineligible for WC benefits. After review, finding no error,
we affirm.


I.    Background
      On May 6, 2015, Claimant injured his right wrist and knee after tripping and
falling while unloading an automobile from a car carrier. The car carrier was owned


      1
          This case was reassigned to the author on August 9, 2018.
by Onixe Express (Defendant). Claimant operated the car carrier pursuant to an
agreement he signed with Defendant.
      Following his injury, Claimant filed a claim petition alleging he suffered a
work-related injury while in the course and scope of his employment with
Defendant. Defendant denied an employment relationship with Claimant. At a
hearing before the WCJ, it was learned Defendant did not carry WC insurance.
Consequently, Claimant filed a claim petition against the Uninsured Employer
Guaranty Fund (UEGF).
      A series of hearings was held, at which Claimant presented a deposition of his
physician, detailing his injuries. Claimant also testified as to his relationship with
Defendant as follows. Claimant drove a two-layer car carrier truck to various
locations across the United States at which he would pick up new, old, or damaged
vehicles, load them onto the car carrier, and then deliver them to a designated drop-
off location. A dispatcher advised Claimant where to pick up and drop off loads.
Defendant owned and insured the car carrier. Defendant also provided Claimant
with a GPS and reimbursed him for gas and tolls. No one supervised his work or
trained him. Defendant did not tell Claimant what routes to take when transporting
cars. He was simply given a work order with an address on it. He determined how
many hours to drive each day. Claimant obtained his commercial driver’s license
(CDL) in 2003 and held similar jobs in the past for other companies. Claimant
previously owned his own transport company but has since sold his truck. Prior to
starting work, Claimant executed an independent contractor agreement with
Defendant. Claimant reads “a little bit” of English but claims he did not read the
agreement before initialing each paragraph or signing the bottom of the document.
Although his wife speaks English and read a fee agreement with his attorney to him,



                                          2
Claimant did not ask his wife to read the independent contractor agreement to him
prior to executing it. Claimant never told Defendant that he did not understand the
agreement. Claimant was compensated by the trip, receiving 25 percent of the gross
amount that Defendant received for each trip. Claimant admits taxes were not
withheld from his pay, which is consistent with the terms of the independent
contractor agreement. Claimant received a Form 1099. Claimant testified he did
not believe he could turn down work. If he did, Defendant would find another driver.
Once he did take off work for a medical condition. After signing the independent
contractor agreement, he worked briefly for another trucking company while he
waited for Defendant to have a truck available for him.
      In opposition, Defendant presented the deposition of its owner (Owner), who
testified as follows. Defendant is a car holder business that owned and insured the
car carrier Claimant drove but has no employees. Claimant worked for Defendant
as an independent contractor, whose duty was to transport cars. Claimant chose the
routes taken, had no set schedule, was free to work for other companies, and could
turn down assignments. He and Claimant communicated with one another in
Russian.
      Defendant also presented the deposition testimony of Defendant’s secretary
(Secretary), who testified as follows. Secretary is Owner’s wife and assists with
office work including contracts and human resources. She confirmed Defendant has
no employees and that Claimant worked for Defendant as an independent contractor.
Secretary met with Claimant and provided him a copy of the independent contractor
agreement, which he signed. Claimant never indicated to her that he did not
understand it.   She believed Claimant read some English because that is a
requirement of the Department of Transportation. Defendant contracts with another



                                         3
company to handle dispatching. Claimant was free to turn down assignments and
did when he had a doctor’s appointment. Drivers were given a timeframe when to
pick up and drop off cars. Within that timeframe, Claimant was free to do whatever
he wanted. Cars that were picked up and delivered for auction were not time
sensitive because the auctions occur around the clock. Claimant did not have a set
number of hours he was required to work. Drivers were not told when to start or
stop driving each day. The only requirement was to possess a CDL and pass a drug
test, which are requirements of the Department of Transportation.        Claimant
determined which routes to take. Defendant paid Claimant 25 percent of the gross
it received for each load.     Defendant paid Claimant by check, withheld no
deductions, and issued a Form 1099. Some drivers for Defendant owned their own
trucks. Secretary was aware that Claimant used to own his own truck and trucking
company. According to Secretary, Claimant could drive for other companies if he
so desired.
      Based upon the above, the WCJ accepted the testimony of Claimant’s
physician as to the injuries Claimant suffered and that he was not fully recovered
from them. However, the WCJ denied the claim petitions on the basis that Claimant
was an independent contractor not an employee of Defendant. In making this
determination, the WCJ “generally accept[ed]” Claimant’s testimony, except where
it was inconsistent with Owner’s and Secretary’s testimony.      (WCJ Decision,
Finding of Fact (FOF) ¶ 12.) The WCJ specifically rejected Claimant’s testimony
in favor of Owner’s and Secretary’s testimony, “particularly as to the issue of
whether Claimant was an employee or an independent contractor.” (Id.) The WCJ
accepted Owner’s and Secretary’s testimony on the issue of employment, finding
there was “really no dispute as to the following facts”:



                                          4
a. [Owner] contracted with Claimant for work as an independent
   contractor and Claimant signed [the] independent contractor
   agreement.

b. There was no guarantee of work by Defendant, and Claimant could
   refuse work. In fact, Claimant did refuse work when he had a
   doctor’s appointment.

c. Claimant was paid by the job. No deductions were taken from
   payments made to Claimant. In fact, Claimant specifically testified
   that he was paid by check and given a “1099.”

d. There were no restrictions imposed on Claimant in providing similar
   services to others. In fact, Claimant did drive a truck for another
   company at one time during the time he had entered into the
   independent contractor agreement with Defendant.

e. [Owner] did not provide direction and control over the work
   performed by Claimant. Rather, Claimant was simply given a pick
   up and drop off point and a “time frame” when to pick up and deliver
   the cars. Claimant could choose the routes he travelled to perform
   his services and what times he wanted to drive. In fact, Claimant
   testified, “the driver is in charge of” what time to start and stop
   driving . . . . No one supervised Claimant’s work and/or trained him
   how to do the job. He testified he had done this work before,
   including owning his own trucking business, UZ Trucking.

f. Finally, and perhaps most notably, Claimant signed an independent
   contractor agreement with Defendant for services provided.
   Claimant acknowledged he received a “1099” and filed taxes.
   Claimant never presented his tax returns to show that he reported the
   income as anything other than 1099 contractor income. Also, it was
   clear to this [WCJ] that Claimant was not an inexperienced truck
   driver who had no idea what he was signing. Claimant and the
   owner of Defendant communicated in Russian with each other.
   Claimant has had a CDL license since 2003. He worked for other
   trucking companies . . . . He then had his own truck, and he was an
   “owner/operator” from 2009 to 2013.[FN]1 Claimant’s trucking
   company was called UZ Trucking. It appears to this [WCJ] that
   Claimant did understand he was working as an independent
   contractor. Claimant possessed a skill of being able to drive a


                                   5
           commercial truck and knew how to load and unload cars to transport
           them with a specialized two-layer car carrier truck.

              [FN]1 This [WCJ] found this to be an important factor. This
              is a close case, as there are legitimate arguments that
              Defendant supplied the tools (i.e., the truck and GPS) and
              Claimant’s work is clearly part of the regular business of
              Defendant’s transportation business. However, the most
              important element in Pennsylvania is the right to control, and
              the [WCJ] does not believe that element weighs in favor of
              Claimant in this case. If Claimant was someone who had just
              received his CDL license and had received training from
              Defendant on how to perform the job, this [WCJ] may well
              have found an employment relationship.

(Id. ¶ 13 (internal citations omitted).)
       Based upon these findings, the WCJ concluded Claimant was an independent
contractor, not an employee, of Defendant, and dismissed the claim petitions.
       Claimant appealed to the Board, which affirmed. Citing the WCJ’s findings
that Defendant did not control Claimant’s work or the manner in which he performed
it, Claimant determined his work hours, and Claimant could refuse assignments from
Defendant and accept work from other companies, the Board concluded the WCJ
properly determined Claimant failed to meet his burden of establishing an
employment relationship.
       Claimant now seeks review by this Court.2 Claimant argues the WCJ erred in
finding Claimant was an independent contractor. He claims the evidence weighs in
favor of finding control by Defendant not against it. He acknowledges that he owned
his own transport business but he sold his truck. Further, this prior experience should
not make him an independent contractor. Claimant argues he did not control his

       2
         Our review is limited to whether constitutional rights were violated, errors of law were
committed, or necessary findings of fact are supported by substantial evidence. Universal Am-
Can, Ltd. v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 328, 331 n.2 (Pa. 2000).


                                               6
work, as he could not work elsewhere since he had no truck to use. He points out
that Defendant provided the vehicle, insurance, gas, tools, and GPS. As for the
independent contractor agreement he signed, he argues he does not read English and
therefore did not understand its implications. He also did not believe he had the right
to refuse assignments. Claimant also argues that since the WCJ found this to be a
“close case,” the WC Act3 should be interpreted in his favor because it is remedial
in nature.
         Defendant counters that aside from the truck and GPS, it exercised no control
over Claimant. According to Defendant, Claimant was simply told where to pick up
and drop off loads, but was not told how to accomplish this. It points out that
Claimant was paid by the job and no deductions were made. It also argues that
Claimant knowingly executed the independent contractor agreement.                         Finally,
Defendant argues the WC Act is construed in favor of the claimant-employee only
if there is an ambiguity, which does not exist here.
         Intervenor UEGF echoes Defendant’s arguments and adds that there is
substantial evidence to support the WCJ’s findings. Further, since there is no
borderline interpretation, there is no need to construe the WC Act in Claimant’s
favor.




II.      Discussion
         In order to prevail on a claim petition, a claimant must establish all of the
necessary elements, including the existence of an employment relationship.


         3
             Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.


                                                  7
Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home Care, Inc.), 134 A.3d 1156,
1162 (Pa. Cmwlth. 2016). Because independent contractors cannot recover benefits
under the WC Act, the existence of an employment relationship is a threshold matter.
Am. Road Lines v. Workers’ Comp. Appeal Bd. (Royal), 39 A.3d 603, 610 (Pa.
Cmwlth. 2012). The existence of an employment relationship is a question of law
to be determined based upon the unique facts presented in each case. Id.
      The Pennsylvania Supreme Court has recognized that there is “no hard and
fast rule” as to when an employment relationship exists, but has set forth a number
of factors to be considered. Hammermill Paper Co. v. Rust Eng’g Co., 243 A.2d
389, 392 (Pa. 1968). These factors include: (1) control of the manner in which work
is to be done; (2) “responsibility for result only”; (3) “terms of agreement between
the parties”; (4) “the nature of the work or occupation”; (5) “skill required for
performance”; (6) “whether one employed is engaged in a distinct occupation or
business”; (7) “which party supplies the tools”; (8) “whether payment is by the time
or by the job”; (9) whether work is part of the regular business of the alleged
employer; and (10) whether the alleged employer has the right to terminate the
employment at any time. Id. “[N]o one factor is dispositive.” Edwards, 134 A.3d
at 1162. However, “there are certain guidelines that have been elevated to be
dominant considerations.” Universal Am-Can, Ltd. v. Workers’ Comp. Appeal Bd.
(Minteer), 762 A.2d 328, 333 (Pa. 2000). A key factor is the right to control the
work to be done and the manner in which it is performed. Id.
      With the above principles in mind, we turn to the facts of this case. Claimant
argues the WCJ erred in finding Defendant did not exercise control over Claimant’s
work or the manner in which he performed it. In reaching his decision, the WCJ
concluded the following “are suggestive of an independent contractor relationship”:



                                         8
      a. Defendant did not train Claimant; indeed, by Claimant’s own
         testimony, he previously had his own transporting business, and was
         therefore already familiar with the services provided to Defendant.

      b. No one supervised Claimant while he was doing his work. Claimant
         was not told what to do when it comes to the loading and unloading
         of cars. Defendant did not set the routes to be taken in transporting
         the vehicles; rather, Claimant chose his own routes. Defendant’s
         only role was in providing the truck, and informing Claimant of the
         locations for pick-up and drop-off.

      c. The agreement between Claimant and Defendant is probative of an
         independent contractor relationship. Claimant now suggests that he
         did not understand English, but Claimant did not request assistance
         in translating the agreement at the time it was signed and
         communicated with the owner of Defendant in Russian.

      d. Rather than being paid by time, Claimant agreed to a payment of a
         percentage of the gross trip paid to [Defendant]. This amount would
         be paid no matter how much time Claimant spent performing his
         services.

      e. No taxes were withheld from Claimant’s pay. He received 1099s at
         the end of each year and he filed taxes.

      f. Claimant possessed a skill of being able to drive a commercial truck
         and knew how to load and unload cars to transport them with
         knowledge of how to operate and load, secure, and unload cars on a
         specialized two-layer car carrier truck.

(WCJ Decision, Conclusion of Law (COL) ¶ 5.)
      Claimant does not appear to challenge these findings based on a lack of
substantial evidence. Instead, Claimant argues that, as a matter of law, these factors
weigh in his favor. We disagree. The WCJ did not view any one factor as
dispositive. Rather, the WCJ weighed all of the Hammermill factors, and concluded




                                          9
that Claimant failed to sustain his burden of proving he was an employee of
Defendant.
      It is important to bear in mind that the WCJ rejected Claimant’s testimony to
the extent it conflicted with the testimony of Owner and Secretary. 4 Therefore, based
upon the credited testimony, the facts are as follows. Claimant had no guarantee of
work and was free to refuse work or even work for another company. He was paid
by the job regardless of how long it took him to complete it and no deductions were
made; instead, Claimant received a Form 1099 and was responsible for paying his
own taxes. As to the element of control, Defendant provided Claimant with a pick-
up and drop-off location and a timeframe to complete each load, but did not give
him any direction as to how to complete the job, which routes to travel, what times
to drive each day or for how long. In addition, he was not trained by Defendant and
signed an independent contractor agreement. While alone, none of these factual
findings are dispositive, taken as a whole, we cannot conclude the WCJ erred in
finding Claimant was an independent contractor instead of an employee.
      We have recognized that “the trucking industry presents unique challenges in
determining employment status.” Am. Road Lines, 39 A.3d at 611. “Truck drivers
who direct their own routes, come and go as they see fit, and control their transport
as owner-operators are often deemed independent contractors.” Id. For instance, in
Universal Am-Can, the Supreme Court reversed this Court’s decision that affirmed
a WCJ’s and Board’s decision finding the claimant was an employee. The Supreme
Court held the claimant was an independent contractor instead. The Supreme Court
agreed with the defendant that the record evidence did not establish the defendant
had the right to exercise the requisite degree of control over claimant’s work or the


      4
          We are bound by the WCJ’s credibility determinations. Edwards, 134 A.3d at 1161.


                                              10
manner of performance. Universal Am-Can, 762 A.2d at 333. In that case, the
claimant owned the tractor-trailer unit and contracted with defendant to haul cargo.
He was required to contact the dispatcher every 12 to 24 hours, depending on the
load. He was free to choose his own travel routes. He could haul cargo for other
companies, but only if the defendant did not have any cargo to haul and consented
to the claimant doing so. The defendant also required regular inspections, all loads
be covered with tarps, and claimant to obey the speed limit. In addition, the
defendant’s driving manual required a one-hour stop for meals. The defendant also
reserved the right to approve drivers of the claimant’s truck. The WCJ found these
factors were sufficient to establish that the defendant controlled the claimant’s work.
The Supreme Court disagreed, concluding many of the factors relied upon by the
WCJ were dictated by federal regulation, which was not indicative of the defendant’s
control, but the government’s control. Id. at 334-36.
      In contrast, in Sarver Towing v. Workers’ Compensation Appeal Board
(Bowser), 736 A.2d 61 (Pa. Cmwlth. 1999), this Court affirmed an award of benefits
to a tow truck driver on the ground he was an employee not an independent
contractor. There, the defendant hired the claimant as a trainee and paid him an
hourly wage. A few months later, the claimant signed a contract agreeing to be paid
a commission and be responsible for paying his own taxes. The defendant provided
the claimant with a truck bearing its name, as well as all tools and equipment needed.
Claimant kept the truck at his home and was contacted by either telephone or pager
when he had an assignment. He was on call 24 hours a day, 7 days per week. He
was not permitted to use the truck to perform work for another company and did not
work for anyone else. The defendant did not advise the claimant as to what routes
to take or directly supervise the claimant as he was towing vehicles.



                                          11
      Several months later, the claimant injured his back while lifting a computer at
the defendant’s premises at the direction of the defendant’s owner. The WCJ
concluded the claimant was an independent contractor and denied benefits. The
Board reversed, and we affirmed the Board’s order. In applying the Hammermill
factors, we found it was “particularly important” that the defendant provided the tow
truck and equipment. Sarver Towing, 736 A.2d at 63. We also noted that the routes
chosen by the claimant were not important in determining whether the defendant
exercised control over the claimant. Id. Rather, we said the fact that the claimant
could not use the defendant’s truck to perform work for other companies and was on
call 24 hours a day, 7 days per week evidenced substantial control over the claimant.
Id. Finally, we agreed with the Board that the claimant was injured while moving a
computer for the defendant pursuant to the owner’s directions. Id. As the Board
concluded:

      [m]oving a computer is not a duty which one would normally associate
      with operation of a tow truck. The fact that [the defendant] believed it
      had the ability to order [c]laimant to move a computer, which had
      nothing to do with [c]laimant’s performance as an operator of a tow
      truck, is clearly indicative of the fact that [the defendant] had the
      control over [c]laimant to tell him what to do and the manner of how
      he was to do it.

Id. (quoting Board opinion) (emphasis added). Accordingly, we affirmed the
Board’s conclusion that the claimant was an employee.
      Here, Defendant provided Claimant with the car carrier and left which routes
he traveled to Claimant, similar to Sarver Towing. However, in Sarver Towing,
these acts really had no relation to the claimant’s injury because he was not injured
driving the tow truck. Rather, he was injured lifting a computer at the owner’s
direction, something we noted was outside his normal responsibilities as a tow truck


                                         12
driver. This distinction is important because here, Claimant was injured doing what
he contracted to do. Sarver Towing is also distinguishable because there, the
claimant was on call for owner around the clock. To the contrary, here, the credited
evidence shows Claimant was free to refuse assignments and controlled when and
for how long he worked.
       It bears emphasis that “[t]he existence of an employer-employee relationship
is a question of law based on the facts presented in each case.” Edwards, 134
A.3d at 1162 (emphasis added). Furthermore, no single Hammermill factor is
dispositive. Id. Based upon the findings of the WCJ, we cannot find the WCJ or
Board erred in concluding that the factors weigh in favor of finding that Claimant
was an independent contractor, not an employee of Defendant.
       Finally, we address Claimant’s second argument that because this is a “close
case” in the WCJ’s eyes, given the remedial nature of the WC Act, he should be
awarded benefits. While true that the WC Act has a humanitarian purpose and
intends to benefit injured workers, this does not mean claimants are excused from
meeting their burden of proof, including establishing an employment relationship.
The principle that the WC Act is to be liberally construed is only when there are
ambiguities in the WC Act. Here, while it is a close case, there is no such ambiguity.


III.   Conclusion
       Based upon the WCJ’s findings of fact, which are supported by substantial
evidence, we discern no error in the WCJ’s or Board’s determination that Claimant
was an independent contractor not an employee of Defendant. Accordingly, we
affirm the Board’s Order.




                                         13
_____________________________________
RENÉE COHN JUBELIRER, Judge




 14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Fakhriddin Baykhanov,                   :
                        Petitioner      :
                                        :
                 v.                     :   No. 245 C.D. 2018
                                        :
Workers’ Compensation Appeal            :
Board (Onixe Express),                  :
                       Respondent       :


                                     ORDER


     NOW, October 12, 2018, the Order of the Workers’ Compensation Appeal
Board, in the above-captioned matter, is AFFIRMED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fakhriddin Baykhanov,                    :
                         Petitioner      :
                                         :
                   v.                    :
                                         :
Workers’ Compensation Appeal             :
Board (Onixe Express),                   :   No. 245 C.D. 2018
                       Respondent        :   Submitted: June 29, 2018


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION BY
JUDGE COVEY                                  FILED: October 12, 2018

            I respectfully dissent from the Majority’s conclusion that “[b]ased upon
the [Workers’ Compensation Judge’s (WCJ)] findings of fact, which are supported by
substantial evidence, we discern no error in the WCJ or [the Workers’ Compensation
(WC) Appeal Board’s (Board)] determination that [Fakhriddin Baykhanov
(]Claimant[)] was an independent contractor not an employee of [Onixe Express, Inc.
(OEI)].” Majority Op. at 14. Because the factors established in Hammermill Paper
Co. v. Rust Engineering Co., 243 A.2d 389 (Pa. 1968), are not to be considered in a
vacuum, but rather in the context of the business to which they are being applied, and
in the context of OEI’s trucking/transportation business, the “inferences favoring
[Claimant as an employee] [] make [a] stronger appeal to reason than those
opposed[,]” Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home Care, Inc.), 134
A.3d 1156, 1162 (Pa. Cmwlth. 2016), the WCJ’s conclusion that Claimant was not an
employee was not supported by the facts, was not reasonable and was error as a
matter of law. Thus, I would reverse the Board’s order.
            Initially, “[t]o be eligible for [WC] benefits, Claimant must first prove
that he was injured while in an employee-employer relationship.”            Haines v.
Workmen’s Comp. Appeal Bd. (Clearfield Cty.), 606 A.2d 571, 572 (Pa. Cmwlth.
1992). “Whether an employer-employee relationship exists is a question of law
based upon findings of fact.” B & T Trucking v. Workers’ Comp. Appeal Bd. (Paull),
815 A.2d 1167, 1171 (Pa. Cmwlth. 2003) (emphasis added).               “In determining
employee or independent contractor status, certain criteria have come to serve as
guideposts for the reviewing tribunal.” Universal Am-Can, Ltd. v. Workers’ Comp.
Appeal Bd. (Minteer), 762 A.2d 328, 332 (Pa. 2000). The Pennsylvania Supreme
Court in Hammermill, “set[] forth the relevant factors in undertaking this analysis.”
Universal Am-Can, Ltd., 762 A.2d at 333.

            [N]o hard and fast rule exists to determine whether a
            particular relationship is that of employer-employee or
            owner-independent contractor, [but] certain guidelines have
            been established and certain factors are required to be taken
            into consideration:
                Control of manner work is to be done; responsibility
                for result only; terms of agreement between the
                parties; the nature of the work or occupation;
                skill required for performance; whether one is
                engaged in a distinct occupation or business;
                which party supplied the tools; whether payment
                is by the time or by the job; whether work is part
                of the regular business of the employer, and also
                the right to terminate the employment at any time.

Hammermill, 243 A.2d at 392 (emphasis added) (quoting Stepp v. Renn, 135 A.2d
794, 796 (Pa. Super. 1957)). “Whether some or all of these factors exist in any given
situation is not controlling.” Universal Am-Can, Ltd., 762 A.2d at 333.
            “Moreover, payment of wages and payroll deductions are significant
factors, as is provision of [WC] coverage.             However, payment is not
determinative.” Edwards, 134 A.3d at 1163 (emphasis added; citations omitted).

                                      AEC - 2
“In addition, a tax filing denoting self-employment, while a relevant factor, is not
dispositive on the issue. Similarly, the existence of an employment or independent
contractor agreement is another factor to consider, but it is not, by itself,
dispositive.” Id. (emphasis added; citation omitted). Finally,

            ‘[a]lthough it is a claimant’s burden to demonstrate an
            employer/employee relationship, our [Supreme] [C]ourt has
            decided that ‘neither the [WC] authorities nor the courts
            should be solicitous to find contractorship rather than
            employment, and that inferences favoring the claim need
            make only slightly stronger appeal to reason than those
            opposed.’’ Universal Am-Can, [Ltd.,] 762 A.2d at 330
            (quoting Diehl v. Keystone Alloys Co., . . . 156 A.2d 818,
            820 ([Pa.] 1959)).
Edwards, 134 A.3d at 1162 (emphasis added).
            Here, the WCJ expressly found:
            Finally, and perhaps most notably, Claimant signed an
            independent contractor agreement with [OEI] for
            services provided. Claimant acknowledged he received
            a[n Internal Revenue Service Form] ‘1099’ and filed
            taxes. Claimant never presented his tax returns to show
            that he reported the income as anything other than 1099
            contractor income. Also, it was clear to [the WCJ] that
            Claimant was not an inexperienced truck driver who had no
            idea what he was signing. Claimant and the owner of [OEI]
            communicated in Russian with each other. Claimant has
            had a [commercial driver’s license (CDL)] since 2003. He
            worked for other trucking companies, including Roadtex
            from about 2002 to 2007. He then had his own truck, and
            he was an ‘owner/operator’ from 2009 to 2013.[FN]1
            Claimant’s trucking company was called UZ Trucking. It
            appears to [the WCJ] that Claimant did understand he was
            working as an independent contractor. Claimant possessed
            a skill of being able to drive a commercial truck and
            knew how to load and unload cars to transport them
            with a specialized two-layer car carrier truck.
                [FN]1 [The WCJ] found this to be an important
                factor. This is a close case, as there are legitimate
                arguments that [OEI] supplied the tools (i.e., the

                                       AEC - 3
                truck and [global positioning system (]GPS[)] and
                Claimant’s work is clearly part of the regular
                business of [OEI’s] transportation business.
                However, the most important element in
                Pennsylvania is the right to control, and the [WCJ]
                does not believe that element weighs in favor of
                Claimant in this case. If Claimant was someone
                who had just received his CDL license and had
                received training from [OEI] on how to perform
                the job, [the WCJ] may well have found an
                employment relationship.

WCJ Dec. at 8 (emphasis added). The Board affirmed the WCJ’s determination that
Claimant failed to meet his burden of proving an employment relationship between
him and OEI. “Because the determination as to the existence of an employer[-
]employee relationship is a question of law, on this issue, our scope of review is
plenary and our standard of review is de novo.” Dep’t of Labor & Indus. v. Workers’
Comp. Appeal Bd. (Lin & E. Taste), 155 A.3d 103, 109 (Pa. Cmwlth. 2017), aff’d,
187 A.3d 914 (Pa. 2018). “Importantly, although the question of whether one is an
employee is a question of law, it must be answered based on the unique facts of each
case.” Id. Thus, while this Court is bound by the WCJ’s findings of facts, “it is [this
C]ourt’s duty to determine if the [WCJ] correctly applied the law to the facts.”
McShea v. City of Phila., 995 A.2d 334, 339 (Pa. 2010) (quoting Triffin v.
Dillabough, 716 A.2d 605, 607 (Pa. 1998)).
            The Dissent acknowledges that “[t]ruck drivers who direct their own
routes, come and go as they see fit, and control their transport as owner-operators
are often deemed independent contractors.” Am. Rd. Lines v. Workers’ Comp. Appeal
Bd. (Royal), 39 A.3d 603, 611 (Pa. Cmwlth. 2012) (emphasis added). However, the
American Road Lines Court held:

            Unlike claimants in many truck driver cases, [the d]ecedent
            was not an owner-operator of the tractor involved. . . . [The
            d]ecedent only operated the tractor through [the


                                       AEC - 4
              defendant’s] authority . . . . He had no control over his
              assignments.
              Though [the d]ecedent signed an agreement stating he was
              an independent contractor to obtain occupational insurance,
              that is but one factor, and not determinative. . . . The facts
              reflect that [the d]ecedent did not engage in an independent
              trade or profession and could not control his time or manner
              of work. The record thus supports the Board’s conclusion
              that [the d]ecedent was not an independent contractor as he
              had no right to control the work to be done or manner of
              performance.
Id. at 612 (citation omitted). Accordingly, here,
              [u]nlike claimants in many truck driver cases, [Claimant]
              was not an owner-operator of the [truck] involved. In
              contrast, he drove a [specialized two-layer car carrier truck
              owned and insured] by [OEI]. [Claimant] only operated the
              [truck] through [OEI’s] authority as directed by [OEI]. He
              had no control over his assignments.
              Though [Claimant] signed an agreement stating he was an
              independent contractor . . . , that is but one factor, and not
              determinative. . . . The facts reflect that [Claimant] did not
              engage in an independent trade or profession[1] and could
              not control his time or manner of work. The record thus
              supports the [] conclusion that [Claimant] was not an
              independent contractor as he had no right to control the
              work to be done. . . .

Id. at 612. OEI is a trucking/transportation business which paid Claimant directly.
Further, OEI told Claimant where to travel, how many days he had to travel to his
destination, and provided the GPS, gas and tolls to accomplish the required task. The
fact that “Claimant was [not] someone who had just received his CDL license [nor]
had received training from [OEI] on how to perform the job,” does not preclude the

       1
          The Majority states: “After signing the independent contractor agreement, [Claimant]
worked briefly for another trucking company while he waited for [OEI] to have a truck available for
him.” Majority Op. at 3. However, although Claimant was technically working for another
company, it was OEI’s truck he was driving. OEI sold the truck to the other company and had not
yet replaced it when Claimant signed the agreement. See Notes of Testimony, October 28, 2015 at
33-34.
                                            AEC - 5
existence of an employment relationship. WCJ Dec. at 8 n.1. Similarly, the fact that
Claimant had a trucking company in the past, at which time he was an owner-
operator of a truck, is not relevant to whether he is currently an independent
contractor or an employee of OEI.
              In Sarver Towing v. Workers’ Compensation Appeal Board (Bowser),
736 A.2d 61 (Pa. Cmwlth. 1999), this Court affirmed the Board’s reversal of the
WCJ’s conclusion that the claimant was an independent contractor based on the
towing company’s lack of control over the claimant. This Court held:

              [I]t is the existence of the right to control the manner of [the
              c]laimant’s work which is critical, even when that right is
              not exercised. Although [the employer] exerted little direct
              supervision over [the c]laimant, this was due to lack of need
              rather than lack of capacity, as [the employer] itself trained
              [the c]laimant to operate the tow truck and supplied [the
              c]laimant with all equipment necessary to do the job.

Id. at 63 (citation omitted). In addition, the Sarver Towing Court opined: “In this
case, we find it particularly important that [the employer] owned the tow truck and
equipment - obviously, very substantial assets - which [the c]laimant used.”2 Id.
(emphasis added). Here, although OEI did not train Claimant, OEI owned and
provided the truck, and OEI “certainly could have taken back the [] truck and
equipment at any time if it was not satisfied with Claimant’s work.” Id.



       2
          Notwithstanding the importance placed on these factors by the Sarver Towing Court, the
Majority tries to distinguish Sarver Towing by stating: “[T]hese acts really had no relation to the
claimant’s injury because he was not injured driving the tow truck. Rather, he was injured lifting a
computer at the owner’s direction, something we noted was outside his normal responsibilities as a
tow truck driver.” Majority Op. at 13. By making this distinction, the Majority appears to be
stating that an individual may be an employee for part of the time and an independent contractor for
the other part of the time. That is not the state of the law and such would be unmanageable and lead
to absurd results.
        Moreover, the Board did not consider Sarver Towing, as it is not cited in its decision,
notwithstanding that it is binding precedent which is squarely on point and dispositive.
                                             AEC - 6
               While the WCJ states: “[OEI’s] only role was in providing the truck,
and in informing Claimant of the locations for pick-up and drop-off[,]” those facts in
relation to OEI’s trucking/transportation business cannot be easily dismissed. WCJ
Dec. at 9 (emphasis added). The Hammermill factors are not to be considered in a
vacuum, but rather in the context of the business to which they are being applied. In
the context of OEI’s trucking/transportation business, these factors clearly “favor[]
the claim [and] make . . . stronger appeal to reason than those opposed.” Edwards,
134 A.3d at 1162.
               Finally, the Majority rejects Claimant’s second argument that given the
remedial nature of the WC Act,3 he should be awarded benefits, by stating: “The
principle that the WC Act is to be liberally construed is only when there are
ambiguities in the WC Act.             Here, while it is a close case, there is no such
ambiguity.” Majority Op. at 13-14 (emphasis added). However, the Pennsylvania
Supreme Court held:
               ‘[O]ur basic premise in work[ers’] compensation matters is
               that the [WC] Act is remedial in nature and intended to
               benefit the worker, and, therefore, the [WC] Act must be
               liberally construed to effectuate its humanitarian
               objectives.’ Hannaberry HVAC v. Workers’ Comp[.]
               Appeal [Bd.] (Snyder, Jr.), . . . 834 A.2d 524, 528 ([Pa.]
               2003) (quoting Peterson v. Workmen’s Comp. Appeal [Bd.]
               (PRN Nursing Agency), . . . 597 A.2d 1116, 1120 ([Pa.]
               1991)).

Giant Eagle, Inc. v. Workers’ Comp. Appeal Bd. (Givner), 39 A.3d 287, 290-91 (Pa.
2012) (emphasis added); see also Schriver v. Workers’ Comp. Appeal Bd. (Dep’t of
Transp.), 173 A.3d 459 (Pa. Cmwlth. 2017). This requirement is not limited to
circumstances involving ambiguities in the WC Act.




      3
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
                                             AEC - 7
            Because the WCJ’s conclusion that Claimant was not an employee was
not supported by the facts, was not reasonable and was error as a matter of law, I
would reverse the Board’s order.



                                    ___________________________
                                    ANNE E. COVEY, Judge




                                     AEC - 8
