Department of Labor and Industry, Uninsured Employers Guaranty Fund, Petitioner
Workers' Compensation Appeal Board (Lin and Eastern Taste), Respondents
SUBMITTED: November 4, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE JULIA K.
HEARTHWAY, Judge, HONORABLE JOSEPH M. COSGROVE, Judge.
K. HEARTHWAY, Judge.
Commonwealth of Pennsylvania, Department of Labor and
Industry, Uninsured Employers Guaranty Fund (Fund) petitions
for review of the March 23, 2016, order of the Workers'
Compensation Appeal Board (Board), which affirmed the October
28, 2015, decision of the workers' compensation judge
(WCJ) awarding Fu Xiang Lin (Claimant) benefits on remand
pursuant to the Board's previous order of January 6,
2015, and which made the Board's January 6, 2015, order
final. Because we determine that Claimant was not an employee
of Eastern Taste at the time of his injury, we reverse.
March 28, 2011, Claimant was injured while doing remodeling
work for Eastern Taste, a restaurant that had not yet opened
for business. (Findings of Fact (F.F.), Nos. 1,
Claimant subsequently filed a Claim Petition against Eastern
Taste, and later, a Notice of Claim against the uninsured
employer, Eastern Taste. (F.F Nos. 2-3.) Claimant then filed
a Claim Petition against the uninsured employer and the Fund.
(F.F. No. 4.)
the litigation before the WCJ, the issue of whether Claimant
was an employee of Eastern Taste was bifurcated from the
medical issues of the claim. (Reproduced Record (R.R.) at
37a-38a.). Claimant testified on his own behalf. Eastern
Taste presented the testimony of Kon Bin Wang (Wang), the
restaurant owner's husband, and Gheng Renkuar (Renkuar),
who was also working on remodeling the restaurant. (F.F. Nos.
6a, 7a.) Based on the testimony, the WCJ found that the
critical facts were essentially undisputed and made the
following findings: a. Eastern Taste is a restaurant, not a
b. The Claimant was hired to do remodeling before the
restaurant had ever opened.
c. The most experienced person on the job in the construction
business was the Claimant.
d. The owner's husband was in charge of what needed to be
e. The Claimant was paid on a per diem basis to do it along
with three others.
f. The Claimant used his own tools and van. The owner's
husband provided tools and materials as well.
F.F. Nos. 9a-f.) The WCJ further determined that: (i)
Claimant was not an employee of Eastern Taste Restaurant;
(ii) Claimant's work was not in the regular course of the
business of Eastern Taste; and (iii) Claimant's
employment was casual in nature. (F.F. Nos. 10-12.) The WCJ
concluded that Claimant failed to sustain his burden to prove
that he was an employee of Eastern Taste. (Conclusions of Law
(C.L.) No. 2.) The WCJ also determined that Claimant was not
considered an employee under the Construction Workplace
Misclassification Act (CWMA). The WCJ reasoned that the CWMA
does not apply as Eastern Taste is not in the construction
industry. (C.L. No. 4, WCJ's opinion (op.) at 4.)
Consequently, the WCJ denied Claimant's Claim Petitions
filed against Eastern Taste and the Fund.
appealed the WCJ's decision to the Board. On January 6,
2015, the Board issued an opinion in which it concluded that
Claimant was an employee of Eastern Taste. (Board's
1/6/15 op. at 5.) The Board also concluded that
Claimant's employment was not casual in nature.
(Board's 1/6/15 op. at 5-6.) Accordingly, the Board
reversed the WCJ's decision and remanded the matter to
the WCJ for necessary findings and conclusions for an award
of compensation and litigation costs, if any. (Board's
1/6/15 op. at 8.)
remand, the WCJ entered an order, dated October 28, 2015,
granting Claimant's Claim Petition and awarding benefits
to Claimant. (R.R. at 141a.) The Fund then appealed to the
Board and requested that the Board's January 6, 2015,
opinion be made final for the purpose of appealing to this
Court. (R.R. at 143a-45a.) On March 23, 2016, the Board
issued an opinion making its January 6, 2015, order final,
and affirming the WCJ's decision dated October 28, 2015.
(R.R. at 149a-52a.)
Fund now appeals to this Court. The Fund argues that the
WCJ's April 17, 2013, decision was supported by
substantial evidence, and that the Board exceeded its
authority by reweighing the evidence and engaging in
impermissible fact-finding. The Fund further argues that the
Board erred by relying on its impermissible
"findings" to conclude Claimant was an employee.
order to determine if the Board engaged in fact-finding, we
must review the Board's "findings" and any
inferences therefrom against those made by the WCJ to
determine if they are consistent. In doing so, we are
necessarily tasked with reviewing the WCJ's findings to
determine if they are supported by substantial evidence. In
other words, "we examine the entire record to see if it
contains evidence a reasonable person might find sufficient
to support the WCJ's findings." Edwards v.
Workers' Compensation Appeal Board (Epicure Home Care,
Inc.), 134 A.3d 1156, 1161 (Pa. Cmwlth. 2016).
"Further, we must view the evidence in the light most
favorable to the prevailing party and give it the benefit of
all inferences reasonably deduced from the evidence."
Id. at 1161-62. "[I]t is irrelevant whether the
record contains evidence to support findings other than those
made by the WCJ; the critical inquiry is whether there is
evidence to support the findings actually made."
Id. at 1161 (quotation marks and citation omitted).
If so, "the findings must be upheld, even though the
record may contain conflicting evidence." Id.
explaining that Claimant met his burden to establish that he
was an employee, the Board stated that "[a]lthough
Claimant had experience in the construction industry, it was
as an employee; he did not engage in his own construction
business." (Board op. at 5.) The Board also stated that
Claimant was not hired as a contractor to do anything
specific, and his position, therefore, was a general laborer.
Finally, the Board stated Claimant was "under the
supervision" of Wang. (Board op. at 5.) We will examine
the basis for the Board's findings seriatim.
respect to Claimant's experience in the construction
industry, the WCJ found only that Claimant had worked for the
past four years for Stone King doing remodeling and that he had
done remodeling for 15 years. (F.F. No. 5k.) This finding is
supported by Claimant's testimony. (R.R. at 44a, 55a.) In
light of this WCJ finding, it would be fair for the Board to
conclude that Claimant worked in the role of employee for
four years with Stone King. But neither the WCJ's
findings nor the record support the Board's conclusion
that all of Claimant's construction experience was in the
role of employee. It was error for the Board to expand the
breadth of the WCJ's finding in this regard where the
record does not support that expansion. Additionally, even if
the Board's conclusions about Claimant's past status
were supported by the record, his status in the past is of
very limited significance.
the Board's assertion that Claimant "did not engage
in his own construction business" cannot be fairly
extended to his entire remodeling career. We recognize that
the WCJ stated, in the context of Claimant's work for
Eastern Taste, that there was no evidence that Claimant had
established a business in which he had a proprietary
interest. (WCJ's op. at 4.) Though the lack of a
proprietary interest in a business is a factor to be
considered,  this factor standing alone is legally
insufficient to warrant a conclusion that Claimant was an
employee of Eastern Taste.
respect to whether Claimant was hired to do anything
specific, the WCJ found "Claimant was hired to do
remodeling …." (F.F. No. 9b.) The Fund contends
that while Wang testified that Claimant was not hired for any
specific tasks within the remodeling project, Claimant was
hired specifically for the remodeling project. At the
hearing, Claimant was asked what he was hired to do. (R.R. at
32a.) Claimant responded by giving examples of the work he
was performing, such as tiling the floor and putting
something on the ceiling, and stated that he was doing
interior remodeling. (R.R. at 32a.) Additionally, while Wang
stated that Claimant was not hired for anything specific,
Wang also stated that he told Claimant to do whatever the
blueprint said. (R.R. at 79a-80a.) Moreover, both Claimant
and Wang testified that Claimant was not expected to work in
the restaurant once the remodeling was completed. (R.R. at
49a-50a, 59a, 73a.) Thus, viewing this evidence in the light
most favorable to the prevailing party and giving it the
benefit of all inferences reasonably deduced therefrom,
Edwards, a person could reasonably conclude that
Claimant was hired specifically for remodeling. Consequently,
the WCJ's finding that Claimant was hired to do
remodeling is supported by substantial evidence, and
therefore, was binding on the Board. The Board erred by
disregarding the WCJ's finding and substituting its
finding that Claimant was not hired to do anything specific
from which it inferred, also erroneously, that Claimant's
position was that of a general laborer.
respect to whether Claimant was "under the
supervision" of Wang, (Board op. at 5), this, too, was
neither the WCJ's finding, nor a fair inference
therefrom. The WCJ's findings of fact simply state that
Wang was "in charge of what needed to be done."
(F.F. No. 9d.) In his discussion, the WCJ states that Wang
told Claimant "what he wanted done" and
Claimant's job "was to do it[, ]" explaining
"[t]his is essentially the same relationship that
property owners typically have with painters, plumbers,
electricians, carpenters and other remodelers. These
specialists bring their time and expertise." (WCJ's
op. at 4.)
testified that he got the blueprints from the architect and
provided them to the workers. (F.F. No. 6f; R.R. at 78a.)
Wang testified that he was not in charge of the construction
process, and that he did not direct Claimant's specific
work activities because Claimant was the experienced
remodeler. (F.F. Nos. 6f; R.R. at 78a, 82a.) Indeed, Wang had
no construction or remodeling experience and testified that
he did not know anything about construction. (F.F. No. 6f;
R.R. at 73a.) Wang testified that he was just there to buy
materials when needed. (R.R. at 78a.) Further, Claimant
testified that at the time of his injury, Wang was out buying
welding sticks. (F.F. No. 5i; R.R. at 46a.) Renkuar also
testified that Wang was in charge but that Wang never told
Renkuar what to do on the construction site. (F.F. Nos. 7a
& c; R.R. at 89a-90a.) Viewing this evidence in the light
most favorable to the prevailing party and giving it the
benefit of all inferences reasonably deduced therefrom, as we
are required to do,  a reasonable person could conclude that
Wang "was in charge of what needed to be done" in a
manner similar to that of property owners and specialists,
such as painters, plumbers, etc., as explained by the WCJ. In
essence, when the WCJ's statement is taken in context of
this explanation, the reasonable inference from this finding
is that Wang was in charge of what needed to be done only in
terms of the overall goal of the project and not in a
step-by-step, supervisory capacity.
the Board exceeded its authority by making "findings,
" which, at a minimum, went beyond those made by the
WCJ. Arguably, the evidence might support some of the
statements made by the Board. However, this is immaterial as
the record supports the findings made by the WCJ. See
Moberg v. Workers' Compensation Appeal Board (Twining
Village), 995 A.2d 385 (Pa. Cmwlth. 2010); see also
Edwards, 134 A.3d at 1161 (stating that it is irrelevant
whether the record contains evidence to support findings
other than those made by the WCJ). Because the Board engaged
in impermissible fact-finding and then relied on those
"facts" to support its conclusion that Claimant was
an employee, the Board erred and its conclusion cannot
stand. 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.
Universal Am-Can, Ltd. v. Workers' Compensation
Appeal Board (Minteer), 762 A.2d 328 (Pa. 2000). The
Board did not base its legal conclusion on the facts
as found by the WCJ, and that was error.
found that the Board erred by engaging in new fact-finding
and drawing new inferences, and having further found that the
WCJ's findings of fact are supported by substantial
evidence and inferences reasonably deduced from such
evidence, we are now tasked with determining whether the
evidence, nonetheless, was sufficient to legally conclude
Claimant was an employee of Eastern Taste. 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. Edwards. The Fund argues that based on
the WCJ's binding findings of fact, the WCJ properly
concluded that Claimant was not an employee of Eastern Taste.
one's status is that of an employee or independent
contractor "is a crucial threshold determination that
must be made before granting workers' compensation
benefits." Universal Am-Can, 762 A.2d at 330.
This is because independent contractors cannot recover
benefits under the Workers' Compensation Act (WC
Act).Edwards. The claimant bears the
"burden to establish an ...