Case Law Update

May 30, 2014

Pennsylvania Uninsured Employers Guaranty Fund v. WCAB (Dudkiewicz), __ A.3d __ (Pa. Cmwlth., No. 1540 C.D. 2013, filed April 7, 2014).

A claim petition was filed against an uninsured employer and the Fund. The employment relationship issue was bifurcated at the first hearing. At a February 9, 2010 hearing, the claimant testified that the uninsured employer was doing work for a company called Builders Prime. He also identified THP as the developer of the construction site where he was injured. At a May 20, 2010 hearing, the uninsured employer appeared and explained that he was working as a subcontractor for Builders Prime and that THP was the owner of the construction site. On May 27, 2010, the Fund filed a joinder petition against Builders Prime, without listing a reason for the request. On September 3, 2010, the Fund filed a joinder petition against THP, alleging that THP was the general contractor at the construction site where the alleged injury had occurred.

On September 28, 2010, the WCJ issued a decision and interlocutory order dismissing both joinder petitions as untimely, and finding , alternatively, that the petition to join Builders Prime was not in compliance with the regulations. The WCJ found that because the Fund did not file a joinder petition against Builders Prime within 20 days of the February 9, 2010 hearing, the petition was untimely. Given that the last hearing took place on May 20, 2010, the WCJ also found the petition filed on September 3, 2010 to join THP untimely. A final decision was later circulated, finding claimant an employee of the uninsured employer and granting the claim petition.

Claimant appealed part of the decision, since his litigation costs were not awarded, based on his failure to submit a bill of costs. The Board remanded since an award of litigation costs is mandatory under Section 440, to allow claimant to introduce his costs. The Board dismissed the Fund’s argument that the WCJ erred in finding the joinder petitions untimely.

 

The Court found that the information elicited from the claimant at the February 9, 2010 was sufficient to alert the Fund as to other parties who may have been in a contractual relationship with the uninsured employer. The Court affirmed the WCJ’s finding that because the Fund did not file a joinder petition within 20 days of the February 9, 2010 hearing, nor did it seek an extension of time in which to do so, the petition to join Builders Prime was untimely.

 

The Court also rejected the Fund’s argument that it had expected Builders Prime to join THP, which it claimed caused the delay in filing the joinder against THP until September. Given that THP had been identified as the owner of the job site at the May 20, 2010 hearing, the Court affirmed the WCJ’s dismissal of the joinder petition against THP as untimely.

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