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Zwick v. Workers' Compensation Appeal Board (Popchocoj)

Commonwealth Court of Pennsylvania

December 11, 2014

Mark Zwick, Petitioner
v.
Workers' Compensation Appeal Board (Popchocoj), Respondent

 Submitted October 17, 2014

Appealed from No. A12-1226 and A12-1227. Workers' Compensation Appeal Board.

Daniel T. Lewbart, Philadelphia, for petitioner.

Erich M. Diehl, Assistant Counsel, Harrisburg, for Intervenor Uninsured Employers' Guaranty Fund.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Page 252

FRIEDMAN,  SENIOR JUDGE

Mark Zwick petitions for review of the February 27, 2014, order of the Workers' Compensation Appeal Board (WCAB) affirming in part and reversing in part the decision of a workers' compensation judge (WCJ) to grant the claim petitions filed by Marco Popchocoj (Claimant) and dismiss the joinder petition filed by the Uninsured Employers Guaranty Fund (Fund). Specifically, the WCAB reversed the WCJ's dismissal of the Fund's joinder petition and modified the WCJ's order to make Zwick secondarily liable to Claimant as a statutory employer under section 302(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 461.[1] We affirm.

On August 2, 2010, Claimant filed a claim petition, alleging that he injured his right hand while doing construction work for Adarlan Rodrigues on July 5, 2010. As a result of his injuries, Claimant underwent amputations of his right pinky finger and right thumb.

On October 15, 2010, Claimant filed a claim petition for benefits from the Fund, alleging that he suffered a work-related injury to his right hand on July 5, 2010, resulting in the amputations of his right pinky finger and right thumb and that this work-related injury caused a temporary, total disability. On May 31, 2011, the Fund filed a petition to join Zwick as an additional defendant.[2] The WCJ consolidated the claim petitions and joinder petition for disposition.

At a hearing before the WCJ on February 10, 2011, Claimant testified that he worked five days per week for Rodrigues and earned $100 per day. Claimant, a citizen of Guatemala, is an undocumented worker who came to the United States in 2007. (WCJ's Findings of Fact, Nos. 1a, 1e, 1h.) Claimant typically would meet Rodrigues at a local Home Depot, and Rodrigues would drive Claimant to the job site. At the job site, Rodrigues directed Claimant's work activities by telling him what projects to do and where to perform the work. ( Id., Nos. 1f-1g.)

On the morning of July 5, 2010, Claimant was installing a hardwood floor at a private residence located at 866 North 20th Street in Philadelphia (Property). ( Id., Nos. 1b, 6c.) Claimant was using an electric saw, which did not have a protective guard, to cut a piece of wood. The

Page 253

wood " kicked back" toward Claimant. When Claimant went to grab the piece of wood, his right hand got caught in the electric saw, severing his right thumb and right pinky finger. Claimant also sustained a cut across the palm of his right hand. ( Id., No. 1b.) Rodrigues gave Claimant ...


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