Leibensperger v. WCAB (LEWIS BUILD.)

• Decision Date: 20 December 2002
• Citation: 813 A.2d 28
• Parties: Jerry LEIBENSPERGER, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (THOMAS H. LEWIS BUILDERS, INC.), Respondent.
• Court: Pennsylvania Commonwealth Court

813 A.2d 28

Jerry LEIBENSPERGER, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (THOMAS H. LEWIS BUILDERS, INC.), Respondent.

Commonwealth Court of Pennsylvania.

Submitted August 16, 2002.

Decided December 20, 2002.

Leo P. Jackson, Stroudsburg, for petitioner.

Paul C. Cipriano, Jr., Philadelphia, for respondent.

BEFORE: COLINS, President Judge, SMITH-RIBNER, Judge, and COHN, Judge.

OPINION BY Judge SMITH-RIBNER.

Jerry Leibensperger (Petitioner) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) concluding that Thomas H. Lewis Builders, Inc. (Respondent) was not a statutory employer for purposes of assigning liability for the payment of workers' compensation. Petitioner raises two issues: whether the Board erred in determining that Respondent was not a statutory employer, when Respondent assumed responsibility for the construction project, monitored the pace of the subcontractors' work, urged the subcontractors to complete their work and directed workers to remove debris from the worksite; and whether the Board erred in affirming the WCJ's final decision when the WCJ declined to apply Section 302(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 461, as interpreted by Delich v. Workmen's Compensation Appeal Board (Lyons), 661 A.2d 936 (Pa. Cmwlth.1995).

In April 1996 Petitioner began working as a siding mechanic for Sebastian Lavalle d/b/a SOS Construction. Mr. Lavalle often did subcontracting work for Thomas H. Lewis who is the owner and sole employee of Respondent, a contracting firm that builds residential homes. On February 16, 1997, Mr. Lavalle instructed Petitioner to pick up some building materials and to commence work on a house being built by Respondent. On Saturday, February 22, 1997, Petitioner fell off some scaffolding while installing soffit and fascia, seriously injuring himself. At the time of Petitioner's accident, Mr. Lavalle had no workers' compensation insurance. Petitioner filed a claim petition, alleging that Respondent was his statutory employer and thus was liable for the payment of workers' compensation benefits.

At the hearing, Petitioner testified that Mr. Lewis visited the worksite each day from February 17 through 21, 1997 urging the workers to accelerate the pace of work. Petitioner stated that several subcontractors worked on the house simultaneously and that although he saw Mr. Lewis speaking to many of them, he never saw Mr. Lewis doing any work. On cross-examination, Petitioner acknowledged that Mr. Lewis did not direct his work, nor to Petitioner's knowledge did Mr. Lewis direct the other subcontractors' workers. Mr. Lavalle paid Petitioner and supplied the tools and equipment used at the worksite. Petitioner stated that Mr. Lewis did not visit the worksite on the date of the injury.

Mr. Lewis testified that Mr. Lavalle had performed subcontracting work for him on several occasions. Although a general contractor, Mr. Lewis testified that he is not a master of any building trade, that he does none of the labor on a project and that he subcontracts all of the work. Mr. Lewis further testified that he does not tell subcontractors how or when to work but instead acts as a project manager, coordinating the subcontractors' work so that the project is completed in a timely manner. He confirmed that he does not provide any of the tools or equipment used by the subcontractors and that he does not set work hours. Mr. Lewis acknowledged that he visited the construction site on weekdays but not on weekends, and he noted that he did not have an office at the site. On cross-examination, Mr. Lewis stated that he spoke to Petitioner once to ask him if the work was proceeding satisfactorily and that he did not tell Petitioner to work the Saturday on which he was injured. Although he did not direct the work of subcontractors' employees, Mr. Lewis acknowledged that he would speak to a worker when he or she was working in an unsafe manner or when using improper or substandard building materials. He also acknowledged directing workers to remove debris from the worksite.

The WCJ denied Petitioner's claim petition, concluding that because Respondent did not exercise actual control over the construction site, Respondent was not a statutory employer. The Board vacated the decision and remanded with instructions for the WCJ to reexamine the claim consistent with the principles stated in Delich, in which the Court held that in cases involving cutting or removal of timber from land Section 302(a) of the Act did not require the contractor to occupy or exercise actual control over the premises in order to qualify as a statutory employer. In a second opinion, the WCJ again denied Petitioner's claim, concluding that Delich did not apply to the facts of Petitioner's case and that Respondent did not exercise actual control over the construction site. The Board applied the standards for determining whether a contractor may be deemed a statutory employer under Section 302(b) of the Act, 77 P.S. § 462, and under McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930). The Board affirmed because Petitioner failed to satisfy his burden of proof.¹

To qualify as a statutory employer under the McDonald test, an employer must meet the following criteria: (1) the employer is working under a contract with the premises' owner; (2) the premises are occupied or under the control of the employer; (3) the employer has contracted with a subcontractor to do work; (4) part of the employer's regular work is entrusted to the subcontractor; and (5) the injured person is the subcontractor's employee. In addition, Section 302(b) of the Act provides in pertinent part:

Any employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of such employer's regular business entrusted to that employe or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employe or contractor, if primarily liable for the payment of such compensation, has secured the payment thereof as provided for in this act. (Emphasis added.)

The only element of the McDonald test and of Section 302(b) involved here is whether Respondent occupied or controlled the construction site. Because Petitioner does not contend that Respondent occupied the construction site, Petitioner must demonstrate that Respondent exercised actual control over the site; it is not sufficient to show that Respondent merely had the right or authority to control the site. Wright Demolition & Excavating Co. v. Workmen's Compensation Appeal Board, 61 Pa.Cmwlth. 479, 434 A.2d 232 (1981).

Petitioner argues that he need not show that Respondent exercised control over the construction site and instead relies on Section 302(a) of the Act.

A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act. Any contractor or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from the subcontractor primarily liable therefor.

For purposes of this subsection, a person who

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