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12/08/97 MARJORIE WOLF v. WORKERS' COMPENSATION

December 8, 1997

MARJORIE WOLF, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (COUNTY OF BERKS/OFFICE OF THE AGING), RESPONDENT



Appealed From No. A94-2937. State Agency Workers' Compensation Appeal Board.

Before: Honorable James R. Kelley, Judge Honorable Jim Flaherty, Judge Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Kelley. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: December 8, 1997

Marjorie Wolf (claimant) appeals from the order of the Workers' Compensation Appeal Board dated December 12, 1996. The board's order reversed the Workers' Compensation Judge's (WCJ) order granting claimant's claim petition. We affirm the board's order on different grounds. *fn1

Claimant filed a claim petition on October 21, 1993 alleging that she had become temporarily totally disabled from her position as a foster grandparent with the Berks County's Office of the Aging (County). Claimant had fallen over physical therapy equipment on May 26, 1993 while serving at the Easter Seal Society Love and Day Care Center (Center) in West Reading. She sustained a fracture to her right sacroiliac joint and left pubic bone as a result of the fall.

Claimant provided support services at the Center as a foster grandparent pursuant to a federal program authorized under Title II of the Domestic Volunteer Service Act of 1973 (DVSA). *fn2 The purpose of the program is to provide opportunities to low-income persons aged 60 or over to give supportive personal care to children with special or exceptional needs. The County has administered the federally funded program since 1980, overseeing 53 volunteer sites and over 80 volunteers.

As part of its administrative duties, the County provided 40 hours of pre-service orientation to the foster grandparents. In addition, the County arranged for the volunteers to receive direct benefits including personal liability insurance, accident insurance, transportation, recognition and a stipend. In accordance with the DVSA, claimant received a nontaxable stipend of $2.35 per hour for the twenty hours she served per week.

The WCJ granted claimant's claim petition by decision circulated September 7, 1994. Specifically, the WCJ determined that claimant was an employee and had sustained her injuries in the course and scope of her employment thereby making her injuries compensable under the Pennsylvania Workers' Compensation Act (Act). *fn3 Additionally, the WCJ concluded that the DVSA did not preclude claimant from recovering workers' compensation benefits.

The County filed an appeal with the board on September 26, 1994 asserting that the WCJ's findings of fact and Conclusions of law were not supported by substantial, competent evidence. Included with its appeal, the County filed a petition for supersedeas which claimant responded to on October 3, 1994. The board granted the County's request for supersedeas on Monday, October 24, 1994. Claimant's counsel requested reconsideration of the board's order alleging the expiration of the 20-day time period for Disposition of such orders. The board affirmed the supersedeas order on November 14, 1994.

The board then reversed the order of the WCJ by order dated December 12, 1996. Since the courts in Pennsylvania had not addressed the issue of whether foster grandparents are to be considered employees under the Act, the board relied on United States v. Connors, 634 F. Supp. 484 (S.D. Ohio 1985). The federal district court in Connors found that the language and the legislative history of the DVSA clearly distinguished volunteers from employed workers. Moreover, the district court concluded that Ohio's Workers' Compensation scheme was in conflict with and was preempted by the federal act, DVSA. *fn4 The board applied the federal district court's rationale to the present facts and denied claimant workers' compensation benefits. This appeal followed. *fn5

The issues before this court are: (1) whether a foster grandparent providing services to children having special needs pursuant to a federal act (DVSA) is to be classified as a volunteer, thereby being ineligible for receipt of benefits pursuant to the Workers' Compensation Act; and (2) whether the board disposed of the County's request for supersedeas in a timely manner. *fn6

In order to satisfy her burden of proof on a claim petition, claimant must establish all elements necessary to support an award, including the existence of an employer/employee relationship at the time of the injury. Williams v. Workers' Compensation Appeal Board (Global Van Lines), 682 A.2d 23 (Pa. Commw. 1996). Accordingly, we must initially determine whether claimant is an employee of the County. Section 104 of the Act, 77 P.S. § 22, declares an employee to be synonymous with a servant and includes in pertinent part:

All natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the ...


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