Fatal Claim and Claimant Burden of Proof

Fatal Claim Benefits are payable to specific class of beneficiaries upon proof of a work-related death. The Claimant Burden of Proof includes establishing the decedent was an employee and was acting in the furtherance of the business of the purported Employer. The Decedent must have been acting within the course and scope of employment at the time of the fatal injury.

Cohen v. WCAB (Getty Petroleum Marketing Co. Inc.), No. 982 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court authored by Judge Leavitt on March 28, 2013 discussed these issues.

Factual & Procedural Background

Claimant widow filed a Fatal Claim petition alleging that her husband was acting within the course and scope of his employment with Getty Petroleum at the time of his fatal motorcycle accident.
Purported Employer Getty, denied an employment relationship.

Decedent operated a Getty gas station under a lease agreement. Getty owned the real property where Decedent conducted his business. Decedent paid monthly rent to Getty. He was responsible for utilities. Getty paid him a commission on the amount of gas sold.

Decedent also conducted an auto repair business on the property. The lease allowed this repair business, but Getty did not share in the revenue or profits of the auto repairs.  "Lessee understands that Lessee is an independent business person and is to conduct Lessee's business in Lessee's own name and at Lessee's own cost and expense".

A Getty witness testified that Getty required proof of work comp insurance upon persons working at the lessee's gas station. If not secured, Getty required a monthly penalty of $98.00 . Decedent paid this amount until he presented documentation that he was a sole proprietor, he had no employees and he was eligible to waive coverage as a sole proprietor.
[documents included Decedent's Subchapter S incorporation documents and Decedent waiver of work comp coverage based upon his ownership interest].

After the record was closed, Claimant alleged the $98.00 payment was in the nature of a workers compensation premium.   The case was re-opened and assigned to another WCJ. Additional evidence was allowed.

Getty presented additional testimony that work comp insurance was not provided to Decedent. The lease authorized Getty to charge an additional amount to procure wc insurance coverage, but Getty did not exercise this provision. It was the practice of Getty to terminate the lease if the lessee did not secure work comp insurance.

Claimant testified she did not discuss her husband's planned route on the morning of the accident.
Decedents cousin testified he worked in the auto repair business.
He understood decedent was going to purchase parts at Pep Boys for a customer vehicle tune-up on his way to work on the day of the accident.

Getty argued that Decedent cousin stated on the morning of the accident, Decedent was on his way to Pep Boys to purchase parts for a customer vehicle repair. If decedent was on a "work related errand", it was for his auto repair business, not the Getty business. Getty provided the gas station and gas. Decedent sold the gas. Getty set the price. Decedent earned a commission. Getty was not involved in any aspect of the auto repair business.

The WCJ found Claimant witnesses credible, in part, but found Decedent was not acting in the course or scope of employment with Getty. He was not an employee of Getty.  Rather, he was commuting to work. He was not on a "special mission" for Getty.

Commonwealth Court
A.   Employment Status of Decedent
Claimant argued that Getty retained the power to direct and control Decedent's business, and this made him an employee of Getty.

The Claimant bears the burden of establishing an employer-employee relationship existed.
Factors to be considered include:

(1) control of the manner the work is done, (2) responsibility for result only, (3) terms of agreement between parties, (4) nature of the work/occupation, (5) skill requires for performance, (6) whether one is engaged in a distinct occupation or business, (7) which party supplies the tools/equipment, (8) whether payment is by time or by the job, (9) whether work is part of the regular business of employer and (10) the right to terminate employment.
Citing American Road Lines v. WCAB (Royal) (Pa. Cmwlth. 2012).

Based upon the testimony and documents, the Court concluded the Decedent worked as a sole proprietor, not as an employee of Getty. The lease terms, Decedents corporate and tax records together with the work comp waivers support this legal conclusion.

B.   WCJ failed to provide a "Reasoned Decision"
Claimant argued that the decision in Daniels v. WCAB (Tristate Transport) limits the WCJ from making credibility determinations of a witness who did not appear before them.
No, the Daniels decision requires the WCJ to author findings as to the actual objective basis for the credibility determination of a witness who does not appear live.
Here the WCJ explained her credibility determinations, as required.

Practice Pointers:
1. The Employer presented witnesses and documents to rebut the Claimant arguments that Decedent was an employee. The evidentary record reflects an investigation of that events and preparation of rebuttal evidence on the critical issue of the employment relationship.

2. The Claimant evidence that Decedent was an "employee" was premised upon the existence of a relationship of Getty to the auto repair business. This relationship was "spelled out" in the documents and testimony of the Employer witnesses. The claimant witnesses did not directly rebut any of these critical factors, in assessment of the existence of an employment relationship.

3. Another hurdle to the employment relationship argument, is that Claimant must prove the Decedent trip from the residence was going to Pep Boys, as a work related task. This could change the nature of the morning commute into a business purpose. Claimant failed to prove this crucial element, via credible testimony.