The Barrister Fall 2017 - 9

w w w.BERKSBAR.org

The D&R Construction Decision

In D&R Construction, the injured worker petitioned for
workers' compensation for an accident which occurred on August
28, 2010. The WCJ denied and dismissed the claim petitions,
concluding that the Claimant was an independent contractor and
not an employee at the time of injury. The Claimant appealed. The
Appeal Board issued an opinion and order reversing the WCJ's
decision. The Board found that the Claimant was an employee
and not an independent contractor at the time of injury. D&R
Construction, 2017 WL 3254789 at *1-2.
Though the CWMA was not yet in effect at the time of
the Claimant's injury, 2 the Board considered the independent
contractor criteria set forth in Section 933 of the CWMCA in its
analysis of whether the worker was an employee or independent
contractor.
On appeal the Commonwealth Court considered two issues:
(1) whether the test applying the criteria for determining whether
a worker in the construction industry is an independent contractor
under the 2010 CWMA could be applied retroactively, and (2)
whether the independent contractor criteria under the CWMA
could be considered as clarifying or instructive of the common law
test. D&R Constr., 2017 WL 3254789 at *2.
a. Retroactive Application
On the first issue, the Commonwealth Court concluded
that, by applying the CWMA's independent contractor criteria,

specifically those factors not consistent with the common law test,
the Board had essentially applied the CWMA retroactively. It
found that this retroactive application of the CWMA constituted
an error of law, and remanded the case. Id. at *2, 4.
The D&R Court explained that, unlike the common law test,
each factor of the CWMA independent contractor criteria is
mandatory, such that each requirement must be established in
order for the claimant to be considered an independent contractor.
D&R Constr., 2017 WL 3254789 at *3. The common law test, in
contrast, requires a weighing of factors, with no one factor being
dispositive, however, control is "a primary factor." Id. In support
of this conclusion, the Court points to the statutory language
"only if " of Section 933.3 of the CWMA and a previous decision
examining the Act, Staron v. W.C.A.B. (Farrier), 121 A.3d 564
(Pa. Cmwlth. 2015), where Judge Bonnie Brigance Leadbetter's
concurrence noted that each factor of the CWMA criteria must be
established in order for a claimant to be deemed an independent
contractor. Staron, 121 A.3d 564 at 569.
Consequently, the Court found that the CWMA alters the
elements of proof, which makes this a substantive change. As it
affects substantive rights, it could not be retroactively applied.
D&R Constr., 2017 WL 3254789 at *3.
b. CWMA as Clarifying or Instructive for the Common Law Test
The second issue was whether the independent contractor
criteria under the CWMA could be considered as clarifying or

The CWMA was enacted October 13, 2010, and became effective on February 20, 2011. Thus the Claimant's injury on August 28,
2010 preceded both the date of enactment and the date the Act went into effect.

Fall 2017 | 9

http://www.berksbar.org/ http://www.hgsklawyers.com

The Barrister Fall 2017

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