              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Home Not Alone Caregiver Services, :
Inc. and Guarantee Insurance Company, :
                         Petitioners  :
                                      :
            v.                        :       No. 852 C.D. 2015
                                      :       Submitted: October 16, 2015
Workers’ Compensation Appeal          :
Board (Galore),                       :
                         Respondent :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                              FILED: December 16, 2015

              Petitioners Home Not Alone Caregiver Services, Inc. (HNA) and
Guarantee Insurance Company petition for review of an order of the Workers’
Compensation Appeal Board (Board).          The Board reversed a decision of a
Workers’ Compensation Judge (WCJ), denying the workers’ compensation claim
petition filed by Linda Galore (Claimant). We affirm the Board’s order.
              On October 24, 2012, Claimant filed a claim petition, alleging that she
worked for HNA as a caregiver and that, on October 2, 2012, she sustained a
disabling injury in the course of her employment. HNA, through its insurer,
denied the claim petition, averring that no employment relationship existed
between HNA and Claimant. HNA asserted that Claimant was an independent
contractor.
               The WCJ bifurcated the proceedings in order to address first HNA’s
claim that no employment relationship existed.          During the WCJ’s hearings,
Claimant offered her own testimony regarding the work she performed as a
caregiver and the testimony of Amy Lutz, HNA’s former Staff Coordinator. HNA
offered the testimony of Kelly Bell, who works for HNA as a staff
supervisor/coordinator and Khaled Daoud, M.D., HNA’s Director and co-owner.
               The WCJ did not find credible Claimant’s testimony or the testimony
of her witness, Ms. Lutz.        The WCJ found the testimony of Ms. Bell and
Dr. Daoud credible. Ms. Bell testified that HNA provides caregiver services “like
personal care . . . light housekeeping, stuff like that.” (Reproduced Record (R.R.)
at 19a.)      Ms. Bell testified that HNA conducts interviews of its prospective
caregivers.     (R.R. at 20a.)   The interview involves filling out an application,
copying of a caregiver’s identification, criminal background checks, and
“screening” for the purpose of “try[ing] to make sure they seem like an appropriate
person to send out to the participant’s home.” Id. Ms. Bell testified that HNA
offers work to particular caregivers if it feels the client and the caregiver are a good
match. (R.R. at 21a.) “We tell them what the hours are that the client might be
needing . . . what their needs are.” Id. Ms. Bell testified regarding a document
offered into evidence, which Claimant signed, and which was characterized as an
independent contractor agreement. Id. Ms. Bell explained that the agreement
included information advising caregivers that HNA does not withhold taxes from
caregivers’ pay checks and does not provide any benefits such as insurance.
(R.R. at 22a.)
               Ms. Bell described the manner in which HNA made assignments to its
caregivers. “We would call them over the phone, tell them the service order that


                                           2
we received from the state from a particular client . . . . We would just go over
what their needs are, what the hours that they are requesting [are] and we would
just say are you interested in this.”1 (R.R. at 23a-24a.) Ms. Bell testified that if
Claimant was not interested in a particular assignment, HNA would “see if there
was another one that she might be interested in.” (R.R. at 24a.) HNA paid
Claimant     approximately       ten   dollars    per    hour     by    bi-weekly     check.
(R.R. at 24a, 27a.)
              Ms. Bell testified that clients determined the caregivers’ schedules.
HNA would get such requests and offer its caregivers the opportunity.
(R.R. at 28a.) As to the particular work a caregiver performed, Ms. Bell testified
that “[t]he determination [of the duties to perform] would come from the client.
We just tell the caregivers what their needs might be, what things they might be
needing to be provided, but the client [himself or herself] tells them on a daily
basis what they would like them to do.” (R.R. at 28a.) Ms. Bell testified that a
client may alter an initial request for certain services by a caregiver “as long as [the
new work] fell within like what a caregiver is supposed to be doing in general.”
Id. Ms. Bell testified that a client and caregiver may also alter the initial time
scheduled “as long as the caregiver agrees on it and they work that out.” (R.R. at
28a-29a.)
              Ms. Bell explained that HNA provides time sheets to its caregivers to
complete and turn in to HNA for the purpose of payment. (R.R. at 29a.) Ms. Bell
testified regarding notes at the bottom of one of Claimant’s time sheets, indicating

       1
           Ms. Bell testified that the referrals HNA received were from agencies such as Three
Rivers Center for Independent Living, the United Cerebral Palsy, and “some mentally challenged
clients, that would be ODP.” (R.R. at 24a-25a.)



                                              3
that she had called another caregiver on a particular date to work Claimant’s hours
because of an illness. (R.R. at 31a.)     Ms. Bell testified that the purpose of the
notes was to “notify [HNA] if something went on.” (R.R. at 32a.) She indicated
that a caregiver does not have to notify HNA first before contacting another
caregiver working for HNA to cover a shift. Id. Ms. Bell testified that HNA does
not provide any training to its caregivers and does not provide materials needed to
perform the duties of the job. (R.R. at 35a.) Ms. Bell testified that caregivers use
their own cars to take clients to appointments, and that either the client or the
caregiver might make such appointments. (R.R. at 35a-36a.)
             On cross-examination, Ms. Bell responded to questions concerning
the manner by which HNA would address performance issues relating to its
caregivers. Ms. Bell testified that she would dismiss caregivers if they were
“[b]eing neglectful with the client, just not showing up to work, leaving them
alone, stuff like that.” (R.R. at 39a.) Ms. Bell testified that the timesheets include
a checklist with duties that a client wants a caregiver to perform and the caregiver
checks the item to indicate that the job was performed. (R.R. at 40a.) If a
caregiver calls off work, HNA requires the worker to submit a doctor’s note.
(R.R. at 41a.) If something “goes wrong” during a work period, caregivers are
required to report an incident to HNA in order for HNA to provide the information
to a state-operated “incident management system.” Id. Ms. Bell agreed that its
caregivers further HNA’s ability to participate in the services it offers and the
business it conducts. (R.R. at 46a.)
             Dr. Daoud also testified on behalf of HNA.         Dr. Daoud testified
regarding a “Home Caregiver Services Policy Procedure Manual” that he
co-authored. Dr. Daoud testified that the manual did not include caregivers within


                                          4
the described chain of command. (R.R. at 260a.) In response to a question on
cross-examination regarding the purpose of the manual, Dr. Daoud agreed that the
chain of command was a means of “encouraging caregivers to speak to secretaries,
staff trainers, supervisors, staff coordinators, assistant directors and service
directors before they spoke with [him].” (R.R. at 263a.) Dr. Daoud testified that
caregivers request to be removed from particular assignments “all the time,” but he
denied that such caregivers experience negative consequences for making such
requests. (R.R. at 262a.)
             The WCJ found Claimant’s testimony credible only to the extent that
it supported HNA’s position that HNA was not Claimant’s employer. The key
factual finding the WCJ made regarding the relationship between HNA and
Claimant provides:
             In summary, I find as fact that HNA and [C]laimant had
             an independent contractor relationship. HNA did not
             have the right to control [C]laimant’s work activities, did
             not provide [C]laimant with the tools/items she needed to
             perform her job, and did not supervise her in any manner
             or set her work hours, and did not train [C]laimant.
             Furthermore, [C]laimant was able to turn down and
             terminate clients without retribution, and work for other
             employers. She was able to have other caregivers
             substitute for her. HNA did not control [C]laimant while
             performing services in the clients’ homes. Although not
             dispositive of the issue, [C]laimant signed a contract with
             HNA that identifies her as an independent contractor, and
             [C]laimant was aware of the provisions and
             consequences of the contract. The claim petition must
             therefore be dismissed.

(Finding of Fact no. 6(E).)
             Claimant appealed the WCJ’s decision to the Board.            The Board
concluded that, notwithstanding the WCJ’s determination that Claimant’s and


                                         5
Ms. Lutz’s testimony is not credible, the credited testimony of Ms. Bell and
Dr. Daoud is competent and sufficient to support a conclusion that HNA was
Claimant’s employer and that the WCJ erred as a matter of law in concluding that
Claimant was an independent contractor.        The Board relied on the following
factors: (1) HNA hired Claimant directly, through an interview process which
included a background check; (2) HNA gave Claimant specific caregiver
assignments, which, at least initially, Claimant did not choose; (3) Claimant was
required to keep track of her hours and fill out a timesheet that she provided to
HNA; (4) HNA required Claimant to complete incident reports and submit those
reports to HNA; (5) HNA had standards that Claimant was required to satisfy or be
subjected to termination; (6) HNA required Claimant to call in if sick and provide
a doctor’s note for such absences; and (7) HNA would provide fill-in services
when Claimant called in sick. Based upon these factors, the Board concluded that
HNA exercised “control over the manner of Claimant’s work.” (Board Decision
at 7.)
             The Board also noted the following elements: (1) Claimant “was not
just responsible for results but was a regular employee that provided consistent
care for clients that were assigned by [HNA];” (2) Claimant’s position “required
little skill and was basically light housekeeping for clients;” (3) HNA “did not . . .
require any specific certification other than a high school degree;” (4) HNA did not
pay on a per-job basis, but rather by bi-weekly pay checks; (5) HNA’s “entire
business revolved around providing caregivers to clients and caregivers were not
ancillary to [HNA’s] main business but were, in fact, [its] main business; and
(6) HNA “retained the right to terminate caregivers.” (Board Decision at 7.)




                                          6
              HNA appealed from the Board’s order,2 raising the sole issue of
whether the Board erred in reversing the WCJ’s order, thereby concluding that
Claimant was an employee of HNA. Part of a claimant’s burden in a claim petition
includes a demonstration that an employment relationship exists.                    Universal
Am-Can v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 328, 330 (Pa. 2000).
The question of whether an employment relationship exists is one of law that must
be resolved based upon the particular facts in the case. Am. Rd. Lines v. Workers’
Comp. Appeal Bd. (Royal), 39 A.3d 603, 610-11 (Pa. Cmwlth. 2012).
              There are many factors a WCJ (as well as the Board and this Court)
may consider when attempting to determine whether a claimant is an independent
contractor or an employee: (1) control over the manner [by which] the work is
done; (2) responsibility for result only; (3) the nature of the work or occupation;
(4) skill required for performance; (5) whether one is engaged in a distinct
occupation or business; (6) which party supplied the tools or materials; (7) whether
payment is by the job or by the time; (8) whether work is part of a regular business
of the employer; and (9) whether a right exists to terminate the relationship.
Universal Am-Can, 762 A.2d at 333.
              There is some overlap between these factors. For example, in Moon
Area School District v. Garzony, 560 A.2d 1361, 1367 (Pa. 1989), our Supreme
Court opined that “[i]n an employer-employee relationship, the employer controls
the result of the work and has the right to direct the way in which it shall be done,
whereas in an owner-independent contractor relationship, the independent


       2
         Our review in this matter is limited to considering whether the Board erred as a matter
of law. 2 Pa. C.S. § 704.



                                               7
contractor has exclusive control over the manner of performing it, being
responsible only for the result.” Garzony, 560 A.2d at 1367-68 (quoting Feller v.
New Amsterdam Cas. Co., 70 A.2d 299, 300 (Pa. 1950)). As we have often
repeated, no one factor “is in and of itself controlling.” Southland Cable Co. v.
Workmen’s Comp. Appeal Bd. (Emmett), 598 A.2d 329, 331 (Pa. Cmwlth. 1991).
Facts tending to show that a worker or putative employer controls the manner by
which a worker performs tasks is often the most persuasive indication of whether
an employer-employee relationship exists. Id. In Southland, the putative employer
provided the claimant (a cable installer) with a daily list of addresses where he was
expected to install cable; the putative employer inspected the claimant’s work;
employer did not provide tools but did supply materials; employer provided signs
with the employer’s name and address; employer provided the claimant with an
identification badge; and employer provided the claimant with traffic control
assistance when necessary. Id. Additionally, however, a key element this Court
also considered in Southland was the fact that the claimant’s work for the putative
employer was essential to the employer’s business. Id. We opined that the relative
importance of a worker’s job to a putative employer’s business was related to the
question of whether the work at issue is part of the regular business of the putative
employer. Id. We held that the factors that the WCJ identified in his decision,
which we summarize above, were more than adequate to support his determination
that an employment relationship existed between the claimant and the cable
company. Id.
             In this matter, the facts the WCJ developed based only on the
testimony of HNA’s witnesses confirm that it hired Claimant and had the power to
terminate her services. There was no testimony indicating that HNA would simply


                                         8
stop assigning work to Claimant if so inclined. Claimant had a duty in certain
circumstances to report incidents to HNA, thus suggesting that HNA did control
some aspects of Claimant’s work responsibilities.           HNA developed certain
standards with which Claimant was required to comply in order to avoid being
terminated. If Claimant called in sick, HNA required her to supply a doctor’s note.
Claimant’s job required no special certification or skills. HNA paid Claimant
based upon the number of hours she worked rather than per job. Significantly, as
the Board noted, HNA’s entire business venture is based upon its supply of
caregivers to its clients. Thus, it is quite clear that Claimant’s work was critical to
the sole purpose of HNA’s business.
             Accordingly, we conclude that the Board did not err in concluding
that HNA was Claimant’s employer, and, therefore, we affirm the Board’s order.




                                 P. KEVIN BROBSON, Judge




                                          9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Home Not Alone Caregiver Services, :
Inc. and Guarantee Insurance Company, :
                         Petitioners  :
                                      :
            v.                        :   No. 852 C.D. 2015
                                      :
Workers’ Compensation Appeal          :
Board (Galore),                       :
                         Respondent :


                                 ORDER


           AND NOW, this 16th day of December, 2015, the order of the
Workers’ Compensation Appeal Board is AFFIRMED.




                             P. KEVIN BROBSON, Judge
