The Barrister Fall 2017 - 10

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instructive of the common law test. D&R Constr., 2017 WL
3254789 at *2. In this issue, the court went on to expressly state
that the CWMA factors could not be considered as instructive or
clarifying of the common law test for establishing an employeremployee relationship, because doing so would essentially displace
the common law test and lead to the application of the CWMA
factors in other industries outside of the construction field. Id. at
*5-6.
The court specifically criticized the Appeal Board's
consideration of the lack of evidence for a written contract, and
that the worker maintained a separate business location - all
elements of the CWMA but not of the common law analysis. Id.
at *12. The court also reasoned that while the CWMA excludes
consideration to wage and payroll deductions, the common law
test considers those factors. Id at *4.
The Appeal Board in its decision noted that even not
considering the CWMA factors, the claimant would be
considered an employee under the common law test. The Court,
however, felt that the Board's decision had been colored by its
consideration of the CWMA factors and thus, remanded the case.
Id. at *5.
The D&R Court also makes clear that it refuses to adopt
the Board's consideration of the CWMA factors as "instructive"
or clarifying the common law test because doing so would lead
to the factors being applied in other industries, which is "well
beyond the Legislature's intention that the CWMA apply only
to the construction industry." Id. In support of this proposition,
the Court cites its recent opinion in Dep't of Labor & Indus. v.
Workers' Comp. Appeal Bd. (Lin & Eastern Taste), 155 A.3d 103
(Pa. Cmwlth. 2017).
In Lin, the Court held that the worker was an independent
contractor, and not an employee of the restaurant that hired him
to do remodeling work. In support of its conclusion, the Court
explains that the determination of whether the CWMA applies
to a given situation is based on the nature of the occupation or
industry of the putative employer, rather than the employee.
Lin, 155 A.3d at 111-114. As such, the court concluded that
the fact that the claimant performed construction work did
not conclusively put his claim within the scope of the CWMA
because the putative employer was a restaurant and therefore not
in the "construction industry." Id. at 114.
II. Omitted or Forgotten? The Hawbaker Decision
Conspicuously missing from the D&R discussion was any
reference to its then most recent decision examining the CWMA,
Hawbaker v. W.C.A.B. (Kriner's Quality Roofing Services & UEGF),
159 A.3d 61 (Pa. Cmwlth. 2017), reargument denied (Apr. 3, 2017).
In Hawbaker, the claimant petitioned for workers'
compensation benefits for injuries suffered when he fell off a roof
while working for Kriner in 2013. Hawbaker, 159 A.3d at 64. The
facts of Hawbaker are somewhat convoluted, but the claimant
had an essentially indefinite contract to perform "roofing and
general labor services" for Kriner, and was required to maintain
liability insurance under the contract. The claimant supplied
some of his own tools and Kriner provided others. Id. at 65. The
parties disagreed over the extent of Kriner's control over the work,
but the contract provided that Kriner would inspect the work of
10 | Berks Barrister

the subcontractors and, if there was a problem with its quality,
Claimant would have to correct it without additional payment.
Kriner testified that the contract did not preclude subcontractors
from doing work for other contractors or on their own. Claimant
presented proof of liability insurance, but the insurance lapsed at
some point. Id. at *64.
The Commonwealth Court examined the evidence and
the WCJ's findings, including those regarding the skill required
for the work, who supplied the tools, the nature of the work,
who had control over the work, and whether the claimant had a
separate business/trade, and concluded that the claimant was an
independent contractor for purposes of both, the CWMA and
workers compensation's common law analysis. Id.
Perhaps explaining the D&R court's omission, the Hawbaker
decision is apparently inconsistent with the holding of D&R, as
it applies factors from both the CWMA and the common law
employer-employee analysis.
For instance, the Hawbaker Court considered the common
law factors of the skill required of the job, whether the payment
was by time or by the job, who supplied the tools, the nature of
the work, and the control over the manner in which the work was
performed, all of which are either variations of or not included
among the CWMA factors.
The Hawbaker decision also did not address (or skirts)
certain requirements under the CWMA, such as the fact that
the claimant's insurance lapsed during the contract, and the lack
of evidence that the claimant performed the service as part of a
business in which it had a proprietary interest.
With regard to whether the claimant was "engaged in an
independently established trade, occupation, profession or
business," the court relied on a Facebook posting that Claimant
was an "independent contractor" and his application for liability
insurance which listed his name as the business. Id. at 71.
With regard to the control factor, the Court's analysis
weighed the level of control exercised over the manner in which
the work was performed (a common law analysis), despite the
statutory language of the CWMA which requires that the
individual be free from control or direction.
The Hawbaker decision is thus not readily reconcilable with
D&R as Hawbaker considers both, the CWMA elements and
the common law test, while D&R specifically rejects using the
CWMA as a guide for clarifying the common law test. Perhaps
the Court decided to apply both, the common law test and the
CWMA, to Hawbaker because the incident happened after the
CWMA's effective date, while the D&R fact scenario took place
before its enactment. If that is the case, the Court will need to
clarify it in future cases. What is clear is that the Court is not
willing to retroactively apply the CWMA. It is also clear that the
CWMA cannot be applied to other
industries.
Gabriela Raful, Esquire, is a BCBA
board member and chair of the
Minority Bar Section. She is an
associate with Galfand Berger, LLP.

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The Barrister Fall 2017

Table of Contents for the Digital Edition of The Barrister Fall 2017