Worker Injured While Remodeling a Restaurant Not “Employee,” Not in “Construction Business”

A threshold issue in a Pennsylvania workers’ compensation case is whether the person who was injured was actually an “employee.”  This is an area we have addressed on this blog in the past.  Recently, the Commonwealth Court of Pennsylvania decided a case regarding this issue.

In the matter of Department of Labor and Industry, Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Lin and Eastern Taste), Mr. Lin was injured while renovating a restaurant which had not yet opened.  Since Mr. Lin was paid by the day (not the job) and did not operate a business of his own, it would appear, at first, he was an employee at the time of the injury.

After hearing the evidence, however, the Workers’ Compensation Judge (WCJ), denied the Claim Petition, finding that Mr. Lin was not an employee of the restaurant, that his work was not in the regular business of the restaurant, and that his employment was casual in nature.  Determining that the restaurant was not in the “construction industry,” the WCJ found that the Construction Workplace Misclassification Act (CWMA) did not apply.

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed, finding that Mr. Lin was, in fact, an employee, and that his work was not casual in nature.  Procedurally, the matter was then “remanded” (sent back) to the WCJ, and the Claim Petition was granted.  The order of the WCAB was then finalized, allowing the decision of the WCAB to be appealed further.

The Commonwealth Court of Pennsylvania reversed the decision of the WCJ, finding that the WCJ was correct and the Claim Petition was properly denied.  In evaluating the evidence, the Court agreed with the WCJ that Mr. Lin had more experience in the construction industry than anyone else on the site; indeed, the restaurant owner had none.  Though the restaurant owner provided some tools and materials, Mr. Lin used his own tools and van for the renovation.  The fact Mr. Lin did not operate a construction business is only a factor, not the deciding factor.  Since he had no construction experience, the restaurant owner did not “control” Mr. Lin, said the Court.  Specifically, the Court noted:

“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.”    

Noting this lack of “supervision” responsibility, the fact that the restaurant is not in the “construction business,” and that Mr. Lin did not expect to work in the restaurant once the remodeling was completed, the Court had no problem finding that Mr. Lin was not an “employee” of the restaurant.  As the WCJ had properly found, explained the Court, the CWMA did not apply because “Eastern Taste is a restaurant in the restaurant business and not in the construction business.”

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