Injured Worker Not “Independent Contractor” As No Written Agreement In Place

One of the basic concepts of a workers’ compensation case in Pennsylvania, is that the injured worker actually be an employee. A person truly working as an “independent contractor” is not covered by the Pennsylvania Workers’ Compensation Act (Act). How someone becomes an “independent contractor,” at least for PA workers’ compensation purposes in the construction industry, was clarified a few years ago by the Pennsylvania Legislature.

As you may recall from our blog posting back in 2011, the Construction Workplace Misclassification Act (CWMA) sets requirements which must be met for an injured worker to be seen as an “independent contractor” and be excluded from coverage by the Act. These requirements are pretty strict, to make certain that only those individuals who should actually lose protection under the Act are those who should correctly do so.

Recently, the Commonwealth Court of PA addressed how strictly these requirements under the CWMA will be read. The answer? Pretty darn strict. The case at issue is Scott Lee Staron, d/b/a Lee’s Metal Roof Coatings & Painting v. Workers’ Compensation Appeal Board (Farrier).

Here, the injured worker was a painter, hired by a contractor. Verbally, they agreed the painter would be paid $100.00 a day and that he would work as an independent contractor. The contractor had a written agreement setting forth the terms, but this was not signed by the painter until after the work injury (the painter fell off a roof suffering a severe head injury).

When the painter filed a Claim Petition, the contractor offered the written agreement into evidence and argued that the written agreement simply confirmed the verbal agreement which already existed between the parties. The Workers’ Compensation Judge (WCJ) noted that at the time of the injury, there was no written agreement in effect, so he was not an “independent contractor.” Since the injured worker met all other criteria, the WCJ granted the Claim Petition and awarded workers’ comp benefits.

On appeal, the decision was affirmed by the Workers’ Compensation Appeal Board. Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. The Court noted that the CWMA has several requirements which must be met before an injured worker will be found to be an “independent contractor” and the very first one is if he or she ” . . . has a written contract to perform such services.” Since there was no signed written contract in existence at the time of the injury, the requirements of the CWMA were not met. The Court was unmoved by the argument that the verbal agreement was already in place, pending the signing of the written agreement, since the CWMA specifically states “written agreement.”

This strict reading of the CWMA is quite consistent with the liberal and remedial nature of the Act, which all too often the PA appellate courts fail to consider. Note also that there was a concurring opinion by the Court, pointing out that the written agreement was not the only thing missing from the list of requirements and that, “Employer simply did not come close to meeting its burden of proof” that the injured worker was an “independent contractor” under the CWMA.