               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Joan Van Leer,                      :
                 Petitioner                :
                                           :
                    v.                     :
                                           :
Workers’ Compensation Appeal               :
Board (Hudson),                            :    No. 1127 C.D. 2018
                Respondent                 :    Argued: February 11, 2019


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge (P.)
             HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY
JUDGE COVEY                                     FILED: February 27, 2019

             Pamela Joan Van Leer (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) July 17, 2018 order affirming
the WC Judge’s (WCJ) decision denying Claimant’s Claim Petition. The sole issue
before this Court is whether Claimant’s duties as a caretaker for a woman suffering
from mild dementia comes within the domestic service exception to the WC Act
(Act)1 (Domestic Service Exception).2
             On June 2, 2016, Claimant was injured while taking care of her
employer Suzanne Hudson (Employer/Hudson). Claimant filed the Claim Petition on
October 13, 2016. Claimant alleged therein that she sustained injuries in the course
and scope of her employment, including a broken nose, damaged teeth, lacerations on
her face, hands, legs, aggravation of pre-existing arthritis and a concussion. Claimant
further averred that she sustained possible scarring on her face. Employer filed an


      1
        Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
      2
         See Section 321 of the Act, as amended, added by Section 22 of the Act of March 29,
1972, P.L. 159, 77 P.S. § 676.
Answer, denying the material averments of the Claim Petition, and also alleging that
Claimant was precluded from WC benefits under the Act’s Domestic Service
Exception.
              A WCJ hearing was held on November 18, 2016, at which time the case
was bifurcated on the issue of whether the Domestic Service Exception applies. On
January 13, 2017, the WCJ denied the Claim Petition, concluding that Claimant was
engaged entirely in domestic service. Claimant appealed to the Board. On July 17,
2018, the Board affirmed the WCJ’s decision. Claimant appealed to this Court.3
              Initially, Section 321 of the Act provides, in relevant part:

              Nothing contained in this [A]ct shall apply to or in any way
              affect:
                   (1) Any person who at the time of injury is engaged
                   in domestic service: Provided, however, That in
                   cases where the employer of any such person shall
                   have, prior to such injury, by application to the
                   [D]epartment [of Labor and Industry (Department)]
                   and approved by the [D]epartment, elected to come
                   within the provisions of the [A]ct, such exemption
                   shall not apply.[4]

77 P.S. § 676.
              Claimant argues that her duties as Hudson’s caretaker do not fall within
the Domestic Service Exception. Specifically, Claimant contends that this Court
should reject the Board’s test that requires an in-home employee to have and use
professional expertise in her work to be compensated under the Act.                      Claimant
maintains that the test should follow the precedent and define domestic service as



       3
         “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
       4
         It is undisputed that Employer did not elect to come within the Act’s provisions.
                                                 2
including the general needs of a household resident or whole household and not the
specialized and particular medical needs of an individual in the household.
               The Board rejoins that precedent holds that someone who is engaged in
domestic service: (1) works in or around the employer’s home; (2) for the comfort
and benefit of the employer’s household; but (3) does not further the employer’s
business interests; and (4) does not provide professional or skilled services. Relying
on this test, the Board maintains that Claimant is a domestic servant.
               There is little case law on this issue as to whether Claimant’s duties as a
caretaker for a woman suffering from dementia fall within the Domestic Service
Exception.       However, the interpretation of what precedent holds is varied.
Accordingly, this Court will conduct its own analysis.
               We begin our review with Vaughn v. McFadden, 35 Pa. D. & C. 307
(1939), wherein a common pleas court explained the exclusion which, at that time
excepted from the term employee, “all who are engaged in ‘domestic services
performed in a private home’.”5 Id. at 308.

               The [Act] was passed primarily for the benefit of the great
               army of business and industrial workers, for whom the
               common-law remedy, which had arisen out of the
               conditions surrounding the small shop and the use of simple
               machinery or no machinery at all, seemed to have become
               inadequate. Its motivating philosophy was that the loss
               arising from accidents in industry should not be borne in
               such heavy proportions by the employe, and that these
               losses should be added to the cost of production, the same
               as losses sustained in the destruction or deterioration of
               machinery. Accordingly, the legislature did not find it
               necessary to include all classes of employes within the
               scope of the [A]ct in order to accomplish its purposes.
               Partly for this reason, and partly for reasons of
               administrative convenience, persons engaged in domestic
               services performed in a private home have been
               excluded from the operation of the [A]ct. This background

      5
          See former Section 304 of the Act.
                                               3
              should be borne in mind in considering the meaning of the
              term ‘domestic services.’

Vaughn, 35 Pa. D. & C. at 309 (citations omitted; emphasis added). In Vaughn, the
“[c]laimant’s statement as to her duties was as follows: ‘. . . all she wanted was
somebody to be a companion, to go out with her when she wanted to go out and
things of that kind and just be there if she wanted me for anything. There really were
no duties.’” Vaughn, 35 Pa. D. & C. at 308. Based on the above, the Vaughn court
concluded that the claimant, who was hired to be a companion, “was engaged in
‘domestic service performed in a private home’ within the meaning of [S]ection 304
of [Act.]” Id. at 311.
              Shortly thereafter, the Pennsylvania Superior Court expounded:

              The question, here raised, involves a construction of the
              [Act] to determine its scope and intent.[6] In a strict sense a
              domestic servant is one who resides in the same house with
              the master whom he serves (1 Bouv. Law Dict., Rawle’s
              Third Rev., p. 914); one who lives in [sic] the family of
              another as a hired household assistant; a house servant (19
              C.J. 389; 27 C.J.S., Domestic, p. 1318; 1 Blackstone 328).
              But, in its broader meaning, ‘domestic’ also includes
              services ‘pertaining to one’s house or home, or one’s
              household or family; relating to home life.’ (Webster).
              The coupling of domestic servants with agricultural
              workers, in the same Act, is significant. Agricultural
              workers are those who are engaged in an enterprise
              conducted by the employer for his profit. House servants
              merely contribute to the personal needs and comfort of the
              employer. Between the two groups are the outservants,
              who in strictness do not fall within either class. And yet
              there is much better reason for excluding gardeners,
              caretakers and the like, than agricultural workers, for they
              are not engaged in a commercial enterprise and their
              services all relate to the home life. Our conclusion, in
       6
         Referring to “the [] Act of June 21, 1939, P.L. 565, 77 P.S. § 1a, which provides that the
Act shall not ‘apply to or in any way affect any person who at the time of injury is engaged in
domestic service or agriculture.’” Jack v. Belin’s Estate, 27 A.2d 455, 456 (Pa. Super. 1942).
Secton 1a of the Act was repealed by Section 26 of the Act of March 29, 1972, P.L. 159.
                                                4
            construing the Act, is that the place where the services
            are performed does not determine the nature of the
            employment. Cooks and house maids are domestic
            servants, not because they work indoors, but because
            they serve the needs of the household. Similarly, one who
            drives an automobile in bringing supplies from market or in
            disposing of waste materials or who raises vegetables and
            produce for use on the estate is a domestic servant in the
            broader sense contemplated by the Act. Growing flowers
            for the delight and pleasure of the family of the owners is
            the same kind of service. Where, as here, the grounds,
            though extensive, are maintained as the curtilage to the
            mansion house and for the comfort and pleasure of the
            occupants, they who thus minister to the needs of the
            owners, according to the standard of living established by
            them, are domestic servants within the purview of the Act.

Jack v. Belin’s Estate, 27 A.2d 455, 457 (Pa. Super. 1942) (emphasis added). Based
thereon, the Superior Court concluded that the claimant, as the estate’s gardener,
provided “domestic service” and was, thus, “excluded from all benefits under the []
Act.” Belin’s Estate, 27 A.2d at 457.
            This Court first attempted to define the term domestic service, as it is
used in Section 321 of the Act, in Viola v. Workmen’s Compensation Appeal Board
(Welch), 549 A.2d 1367 (Pa. Cmwlth. 1988). Therein, the claimant

             was employed by [the p]etitioner on a permanent basis to
             care for [his] wife (Mrs. Viola), who was an invalid
             confined to a wheelchair. [The c]laimant’s job duties
             included giving Mrs. Viola her medication, feeding Mrs.
             Viola, bathing Mrs. Viola, and helping Mrs. Viola get in
             and out of bed and get dressed.
Id. at 1368. Relying on Belin’s Estate, the Viola Court concluded:
            [I]t is clear that [the c]laimant was not engaged in
            ‘domestic service.’ [The c]laimant did not serve, nor was
            she employed to serve, the needs of the household. All of
            [c]laimant’s job duties as found by the [R]eferee and
            supported by substantial evidence in the record related
            solely to the unique needs of Mrs. Viola, rather than the
            general needs of the household.

                                         5
Id. at 1369 (emphasis added). The Court expressly held: “Because [the c]laimant’s
job involved performing duties similar to those of a nurse’s aide, . . . and did not
involve performing household duties, we conclude that [c]laimant was not engaged in
‘domestic service’ for purposes of the Act.” Viola, 549 A.2d at 1369.
            This Court next addressed the Domestic Service Exception in Dutrow v.
Workmen’s Compensation Appeal Board (Heckard’s Catering), 632 A.2d 950 (Pa.
Cmwlth. 1993). In Dutrow, the Referee determined that the claimant performed
domestic service yet nevertheless awarded WC benefits. The Board reversed the
Referee’s decision. Although this Court agreed that the claimant’s domestic service
work was excluded under the Act, it independently reviewed the claimant’s duties to
make its own determination relative to what work included domestic service. The
claimant’s relevant responsibilities included: (1) picking her grandson up from
school, feeding him and taking care of him for her daughter-in-law; (2) doing
housework, laundry, house cleaning, banking and grocery shopping for her neighbor
at her neighbor’s home; and (3) house cleaning on Saturdays for her employer’s wife.
            The Dutrow Court concluded that claimant’s work for her employer’s
wife (cleaning) and her neighbor (housework) was domestic service because it was
work that served the needs of those respective households. With respect to the
babysitting, claimant argued that babysitting is not domestic service because
babysitting does not benefit the needs of a household. The claimant contended that
babysitting serves the specialized needs of the child in the same way that the
claimant’s services in Viola served only the needs of Mrs. Viola. However, the
Dutrow Court concluded that there was no indication that the claimant acted as a
nurse’s aide for her grandson, and that claimant babysat her grandson only
from the time she finished work until the time her daughter-in-law could pick-
up the child. Thus, the Court held that the Act does not require coverage for


                                         6
babysitters who work for employers who have not elected to come within the
provisions of the Act. Id.
             This Court most recently addressed the Domestic Service Exception in
Fletcher v. Workers’ Compensation Appeal Board (Saia) (Pa. Cmwlth. No. 1664
C.D. 2009, filed March 26, 2010). In addition to deciding whether the claimant was
an employee or an independent contractor, the Court had to determine whether
claimant’s services were domestic work excluded under Section 321 of the Act.
Although the Board cites this case in support of its position (because the Board found
claimant’s duties, which included home healthcare and helping with bathing and meal
preparation and light housekeeping, were domestic service), this Court did not
address the domestic service issue. Specifically, the Fletcher Court noted:

             [The c]laimant next contends that the Board erred when it
             determined that [the c]laimant engaged in domestic service
             with respect to her work . . . and was ineligible to receive
             [WC] benefits. Because this Court has determined that
             [c]laimant was not an employee . . . , this Court need not
             address this issue. The Board did affirm . . . on the basis
             that [c]laimant engaged in domestic work. Although the
             Board determined that the WCJ credited in full the
             testimony of Saia which included statements that [c]laimant
             performed nonmedical personal services . . . as well as light
             housework, a review of the record reveals that the WCJ did
             not make any specific findings regarding domestic service.
             Therefore, this Court cannot determine based on the
             record whether [c]laimant was a domestic worker and
             exempt from the Act. However, this Court affirms on the
             basis that [c]laimant was not an employee. This Court may
             affirm on other grounds where grounds for affirmance exist.

Fletcher, slip op. at 14 n.9 (emphasis added). Accordingly, Fletcher is not relevant to
the Court’s current analysis.
             The law is well-settled that “whether or not work constitutes domestic
service under the Act is a question of law reviewable by this [C]ourt.” Dutrow, 632
A.2d at 952. Claimant argues that her work is more akin to a nurse’s aide whose
                                          7
duties are within the purview of the Act, than a babysitter whose responsibilities are
not. The Board retorts that the only difference between Claimant’s duties and that of
a babysitter is the age of the person for whom she cared.
             Having reviewed the evolution of the law in this area, this Court agrees
with the Board herein. First, this Court in Dutrow held that one who cares for a child
is excluded under the Domestic Service Exception. In the instant case, the WCJ
determined that Claimant was credible. See WCJ Dec. at 4. The WCJ found as a fact
that Claimant testified:

             a. Claimant’s job was to make sure that the needs of []
             Hudson were being met. Claimant was to make sure that
             [] Hudson did not fall, get hurt or leave the house. She
             explained that [] Hudson suffered from ‘a little dementia.’
             b. Claimant worked at night. Her duties included making
             sure that [] Hudson was ready for bed, and had her
             medicine. She would make sure that [] Hudson went into
             her bedroom and was asleep, then Claimant would come
             back downstairs and stay up all night long. Claimant would
             also sometimes let [] Hudson’s dogs out. Claimant gave
             some examples of her interactions with [] Hudson, but
             stated that her job consisted mostly of ‘sitting there
             making sure.’
             c. Claimant acknowledged that [] Hudson lived alone.
             There were no other members of her household. Claimant
             acknowledged that other than making sure that [] Hudson
             took her medicine, she did not provide any type of medical
             care.

WCJ Dec. at 4 (Finding of Fact 3) (emphasis added; record citations omitted).
Claimant does not dispute these findings.
             The WCJ concluded: “Claimant’s duties consisted entirely of service to
members of the household, which consisted solely of [] Hudson. Within Claimant’s
credible testimony, she specifically denied providing any other type of service, such
as medical care, to [] Hudson.” WCJ Dec. at 4 (Conclusion of Law 3). Given that

                                            8
Claimant’s main responsibility was to get Hudson ready for bed and make sure she
stayed in bed throughout the evening, we discern no error in the WCJ’s conclusion.
            Accordingly, Claimant’s duties as a caretaker for a woman suffering
from mild dementia falls within the Domestic Service Exception.
            For all of the above reasons, the Board’s order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Joan Van Leer,                  :
                 Petitioner            :
                                       :
                  v.                   :
                                       :
Workers’ Compensation Appeal           :
Board (Hudson),                        :   No. 1127 C.D. 2018
                Respondent             :



                                   ORDER

            AND NOW, this 27th day of February, 2019, the Workers’
Compensation Appeal Board’s July 17, 2018 order is affirmed.



                                    ___________________________
                                    ANNE E. COVEY, Judge
