American Road Lines and Lexington Insurance Co. v. WCAB (Royal), No. 2428 C.D. 2010 (Pa. Cmwlth, filed February 23, 2012).
The Commonwealth Court looked to how employment status is determined in the trucking industry, noting that the relationships that exists between truck drivers, owner-operators, and motor-carriers, in addition to the governmental regulations and oversight, creates unique challenges in making such a determination.
This case was a bit different, in that the claimant/decedent was not the owner-operator of the tractor, like claimants in most truck driver cases. Instead, he drove a tractor leased by Ayerplace (Lessor) from a division of a company called American Network, and in turn leased back to American Network (Lessee). The claimant operated the truck through the Lessee’s authority as directed by the Lessor and did not have any control over his assignments.
On the issue of determining whether a claimant is an independent contractor, the Court observed that the key factor is whether the alleged employer had the right to control the work to be done and the manner in which work is performed. Whether the claimant signs an agreement stating that he was an independent contractor, to obtain occupational insurance, is only but one factor in the assessment and is not determinative.
Where all control can be traced to a motor-carrier’s compliance with state and federal government regulations, its control over an owner-operator/driver does not create an employment relationship. Governmental compliance must be separated from the concept of control when assessing the facts. Furthermore, the fact that a carrier’s insignia is placed on a tractor trailer does not create an irrebuttable presumption of an employment relationship, when assessing control.
Looking to past case law, the Court noted that truck drivers who direct their own routes, come and go as they see fit, and control their transport as owner-operators are often deemed independent contractors.
Here, the Court found that the decedent/claimant truck driver was not an independent contractor because he did not engage in an independent trade or profession and could not control his time or manner of work.
On the concept of joint and several liability, the Commonwealth Court recognized that this concept is not foreign to workers’ compensation, although it is rare. After careful review of the facts, the Court did not find a joint employment relationship. Instead, the indicia of control suggested that the Lessee was the employer.
Specifically, the Lessor merely served as an agent of the Lessee and exclusively served the Lessee’s interests, since it had none of its own. Much emphasis was placed on the Lessee’s ability to hire, fire, discipline and set standards for the truck driver’s conduct. In addition, to hiring, the Lessor also assured that drivers complied with policies, which exceeded government criteria, and could disqualify or terminate drivers who did not meet its standards. The Lessee was responsible for all employment paperwork and determined the driver’s scheduling through its agent, the Lessor, who had none of its own policies. Lastly, the record showed that any work done by the truck driver was not performed to further the interests of the Lessor, expect where its interests coincided with the Lessee.
Accordingly, the motor carrier/Lessor was found to be the employer and solely liable for the injuries.
Amendeo v. WCAB (Conagra Foods), 37 A.3d 72 (Pa. Cmwlth. 2012)
A WCJ does not have to explain credibility determinations of a witness who testifies live. However, a WCJ must provide an objective basis to support his credibility determinations where there is conflicting deposition testimony, to allow for adequate appellate review. A decision is reasoned if the WCJ summarizes testimony and also objectively explains his credibility determinations. Other evidence in the record may provide the objective support necessary under Section 422(a).
City of Pittsburgh v. WCAB (Mainack), 37 A.3d 39 (Pa. Cmwlth. 2012)
If a claimant is collecting a disability pension, the employer must establish job availability, through referrals or a labor market survey. An employer is relieved of its burden to refer open and available jobs, if it is clear from the totality of the circumstances that such efforts would be fruitless because the claimant has withdrawn from the workforce. The employer bears the burden of proving a withdrawal from the workforce.
There is no presumption of a withdrawal from the workforce where the claimant is collecting a disability pension. In such a scenario, it is the employer’s burden to prove that the claimant on a disability pension does not intend to return to work.
If a claimant has accepted a retirement pension, where eligibility is based on years of service or age, there is a presumption that the claimant has withdrawn from the work force. A retired claimant can defend against a suspension by producing evidence that he is looking for a job that falls within his physical limitations or that the work injury rendered him incapable of doing any job.
In this matter, the claimant applied for a disability pension and would have been on one, but for his misconduct. The Court found that it is enough for a claimant to have applied for a pension to be considered withdrawn from the workforce. In this scenario then, the totality of circumstances test applied.
There are a number of ways for the employer to prove the claimant’s intent to withdraw from the workforce, i.e. the claimant does not dispute that he did not intend to work, he accepted a retirement pension, or he accepted a disability pension and has refused suitable work. A claimant’s lack of effort to look for a job does not prove an intention to withdraw from the workforce.
Here, there was no evidence to prove the claimant’s intent to withdraw from the workforce. The Employer was then left with the burden of showing that it assisted claimant in returning to the workforce, which it failed to do. The employer was not entitled to a suspension, since it failed to present such evidence.