N. Conner v. Ram Forest Products, Inc. & Todd Smith Logging, Inc. (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Conner, :
Petitioner :
:
v. :
:
Ram Forest Products, Inc. :
and Todd Smith Logging, Inc. :
(Workers’ Compensation :
Appeal Board), : No. 1064 C.D. 2021
Respondents : Submitted: February 11, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 28, 2022
Nicholas Conner (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) September 1, 2021 order
affirming the WC Judge’s (WCJ) decision that denied Claimant’s Claim Petition for
WC (Claim Petition). The sole issue before this Court is whether the Board erred
by concluding that the WCJ’s findings of fact and conclusions of law were supported
by substantial evidence.1 After review, this Court affirms.
1
Claimant presents three issues in his Statement of Questions Involved: (1) whether the
Board erred by finding that substantial evidence supported the WCJ’s findings of fact and
conclusions of law when the WCJ failed to analyze and weigh Ram Forest Products, Inc.’s (Ram)
ability to exercise control over Claimant by way of paying for and sending him to training courses;
(2) whether the Board erred by finding that substantial evidence supported the WCJ’s findings of
fact and conclusions of law when the WCJ disregarded basic common law agency principles in
performing his analysis under Hammermill Paper Co. v. Rust Engineering Co., 243 A.2d 389 (Pa.
1968), and concluded that Ram did not provide Claimant with tools or directly control his work;
and (3) whether the Board erred by finding that substantial evidence supported the WCJ’s findings
of fact and conclusions of law that logging was not part of Ram’s regular business. See Claimant
Ram Forest Products, Inc. (Ram) operates a high volume hardwood
lumber sawmill in Shinglehouse, Pennsylvania. Claimant is a logger (i.e., cutter and
skidder operator). On February 12, 2020, Claimant filed the Claim Petition against
Ram seeking total disability WC benefits due to a “[l]eft segmental closed [] tibial
fracture requiring surgical correction” that he sustained when a tree fell on his left
leg while he was cutting timber in a forest owned by the Bradford City Water
Authority on August 16, 2019.2 Reproduced Record (R.R.) at 4a; see also R.R. at
5a-7a. On February 17, 2020, Ram opposed the Claim Petition, inter alia, denying
that Ram was Claimant’s employer on August 16, 2019, and asserting that he was
an independent contractor.3 See R.R. at 8a-10a, 29a.
The matter was assigned to a WCJ who conducted hearings on March
13, April 17, July 10, and August 21, 2020. On November 13, 2020, the WCJ held
Br. at 4-5. Because these issues are subsumed in this Court’s analysis of whether the Board erred
by concluding that the WCJ’s findings of fact and conclusions of law were supported by substantial
evidence, they have been combined and will be addressed accordingly herein.
2
According to Claimant, on Friday, August 16, 2019, he was clearing land by himself on
Ram’s behalf for the Bradford City Water Authority when a tree fell and fractured his left leg. He
called 9-1-1, and emergency medical personnel transported him to the Bradford Airport. Claimant
was flown from the Bradford Airport to UPMC Hamot in Erie, Pennsylvania, where he underwent
surgery. Claimant was released from UPMC Hamot on Sunday, August 18, 2019. He followed-
up with the surgeon approximately three times, and then the surgeon released him from care on
January 6, 2020. See Reproduced Record (R.R.) at 53a-64a.
3
In its answer to the Claim Petition, Ram also asserted that Claimant was employed by
Todd Smith Logging, Inc. (TSL) on the day he was injured. See R.R. at 8a-10a, 29a. Accordingly,
Ram filed a Petition for Joinder of Additional Defendant (Joinder Petition), joining TSL to the
litigation. See R.R. at 11a-12a. TSL and its insurer, Allied Eastern Indemnity Company (Allied),
filed answers to the Claim Petition denying Claimant’s allegations, and Allied further asserted it
did not insure TSL on August 16, 2019. See R.R. at 13a-20a. At the March 13, 2020 hearing,
Ram’s counsel requested the WCJ to bifurcate the case to address, first, whether Ram or TSL
employed Claimant or whether he was an independent contractor and, second, whether Allied
insured TSL on August 16, 2019. See R.R. at 21a-39a. Following the March 13, 2020 hearing,
the WCJ bifurcated the matter. However, on September 25, 2020, after Claimant’s counsel
informed TSL that Claimant did not contend that TSL was his employer on August 16, 2019, Ram
withdrew the Joinder Petition. In a September 29, 2020 decision, the WCJ dismissed the Joinder
Petition as having been withdrawn. Thereafter, neither Allied nor TSL participated in these
proceedings.
2
that Claimant failed to establish he was Ram’s employee when he was injured on
August 16, 2019. Claimant appealed to the Board. On September 1, 2021, the Board
affirmed the WCJ’s decision. Claimant appealed to this Court.4
Initially,
in a claim proceeding, the claimant bears the burden of
proving all elements necessary for an award, including the
existence of an employer-employee relationship.
Universal Am-Can, Ltd. v. Workers’ Comp. Appeal Bd.
(Minteer), . . . 762 A.2d 328 ([Pa.] 2000); Staron v.
Workers’ Comp. Appeal Bd. (Farrier), 121 A.3d 564 (Pa.
Cmwlth. 2015). A claimant’s employment status is a
critical threshold determination for liability under the
[WC] Act [(Act)5]. Universal Am-Can. This is because
independent contractors cannot recover benefits under the
Act. Cox v. Caeti, . . . 279 A.2d 756 ([Pa.] 1971).
Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home Care, Inc.), 134 A.3d 1156,
1162 (Pa. Cmwlth. 2016).
Section 104 of the [] Act defines an employee to be
“synonymous with servant, and includes - [a]ll natural
persons who perform services for another for a valuable
consideration, exclusive of . . . persons whose employment
is casual in character and not in the regular course of the
business of the employer . . . .” 77 P.S. § 22. There is no
bright line rule for determining whether a particular
relationship is that of an employer-employee or owner-
independent contractor. Universal Am-Can.
Nevertheless, our Supreme Court has established the
following factors that must be considered when making
such determination:
Control of manner work is to be done;
responsibility for result only; terms of agreement
4
“Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated.” Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d
1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021).
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3
between the parties; the nature of the work or
occupation; skill required for performance;
whether one is engaged in a distinct occupation or
business; which party supplied the tools; whether
payment is by the time or by the job; whether work
is part of the regular business of the employer[;]
and also the right to terminate the employment at
any time.
Id. at 333 (quotation marks and citations omitted) (quoting
Hammermill Paper Co[.] v. Rust Eng[’g] Co[.], . . . 243
A.2d 389, 392 ([Pa.] 1968). “Whether some or all of these
factors exist in any given situation is not controlling.”
[Universal Am-Can, 762 A.2d at 333]. Although each
factor is relevant, “control over the work to be completed
and the manner in which it is to be performed are the
primary factors in determining employee status.” Id.
“Moreover, it is the existence of the right to control that is
significant, irrespective of whether the control is actually
exercised.” Id. (emphasis in original).
Dep’t of Lab. & Indus. v. Workers’ Comp. Appeal Bd. (Lin & E. Taste), 155 A.3d
103, 110 (Pa. Cmwlth. 2017), aff’d, 187 A.3d 914 (Pa. 2018). “The existence of an
employer-employee relationship is a question of law based on the facts presented in
each case.”6 Edwards, 134 A.3d at 1162.
Moreover, the law is well established:
The WCJ is the fact[-]finder, and it is solely for the
WCJ . . . to assess credibility and to resolve conflicts in the
evidence. Neither the Board nor this Court may reweigh
the evidence or the WCJ’s credibility determinations.[7] In
6
“Because the determination as to the existence of an employer[-]employee relationship is
a question of law, on this issue, our scope of review is plenary and our standard of review is de
novo.” Lin, 155 A.3d at 109.
7
Specifically, “Section 422(a) [of the Act, 77 P.S. § 834,] does not
permit a party to challenge or second-guess the WCJ’s reasons for
credibility determinations. [Thus, u]nless made arbitrarily or
capriciously, a WCJ’s credibility determinations will be upheld on
appeal.”[FN]16 Pa. Uninsured Emp[s.] Guar. Fund v. Workers’
Comp. Appeal Bd. (Lyle), 91 A.3d 297, 303 (Pa. Cmwlth. 2014)
4
addition, it is solely for the WCJ, as the fact[-]finder, to
determine what weight to give to any evidence. . . . As
such, the WCJ may reject the testimony of any witness in
whole or in part, even if that testimony is uncontradicted.
W. Penn Allegheny Health Sys. v. Workers’ Comp. Appeal Bd. (Cochenour), 251
A.3d 467, 475 (Pa. Cmwlth. 2021) (quoting Hawbaker v. Workers’ Comp. Appeal
Bd. (Kriner’s Quality Roofing Servs.), 159 A.3d 61, 69 (Pa. Cmwlth. 2017) (internal
citations, quotations, and brackets omitted)).
Here, Claimant argues that the Board erred by finding substantial
evidence supported the WCJ’s findings of fact and conclusion that Claimant was not
Ram’s employee when Claimant was injured. Specifically, Claimant contends that
the Board and the WCJ erred by concluding that logging was not part of Ram’s
regular business, by disregarding basic common law agency principles under
Hammermill Paper Co., and Claimant’s evidence that Ram controlled his work, Ram
paid for him to attend logger training courses, and Ram provided his tools.
Claimant testified that he worked as a logger for Todd Smith Logging,
Inc. (TSL) from approximately 2013 to 2016 or 2017,8 cutting trees and operating a
(quoting Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr.
Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006)).
Capricious disregard “occurs only when the fact-finder
[FN]16
deliberately ignores relevant, competent evidence.”
Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-
Fairless Works), 862 A.2d 137, 145 (Pa. Cmwlth. 2004).
Capricious disregard, by definition, does not exist where, as
here, the WCJ expressly considered and rejected the
evidence. Id.Kimberly Clark Corp. v. Workers’ Comp. Appeal Bd. (Bromley), 161 A.3d 446, 462 (Pa. Cmwlth.
2017).
8
Claimant stated that TSL trained him in how to cut trees. See R.R. at 147a. Claimant
explained that, although he used his own chainsaw, TSL lined up his jobs, TSL carried WC
insurance, and TSL paid him. See R.R. at 118a-119a, 121a. He admitted that TSL considered him
an independent contractor and he received Internal Revenue Service 1099-Misc forms from TSL.
See R.R. at 152a-153a.
5
log skidder.9 See R.R. at 117a-118a, 151a-152a. Claimant explained that TSL’s
logging jobs were obtained “through Ram.” R.R. at 119a. Claimant recalled that,
after expressing to TSL’s owner, Todd Smith (Smith), that he wanted to go out on
his own, Smith told him he should “get[] in with Ram,” R.R. at 118a, and “[Smith]
got [Claimant] into Ram[.]” R.R. at 119a. Claimant later expressed that Smith asked
Claimant if he wished to work for Ram, because TSL was going to cancel TSL’s
WC insurance. See R.R. at 151a.
Claimant declared at the WCJ hearings that Ram had employed him as
a logger for approximately three years at the time of his August 16, 2019 injury. See
R.R. at 54a-55a, 124a-125a. Claimant stated that, although he did not interview with
Ram or sign a contract, he worked steadily and full-time for Ram and no other
companies during that time.10 See R.R. at 55a, 121a, 124a, 126a, 135a-137a, 149a.
He explained that the only downtime between jobs occurred due to weather, or the
need to clean the equipment between forest service jobs. See R.R. at 125a. Claimant
expressed that he could reject Ram jobs, but then he would not be working. See R.R.
at 125a.
Claimant described that he would contact one of Ram’s foresters, often
Brian Fox (Fox), to find out what cut and skid jobs Ram had available.11 See R.R.
at 120a-121a, 125a, 164a-165a. He stated that, when he arrived at a job, a Ram
forester had already marked the skidder paths, the trees to be cut, and the landing
9
A skidder is a vehicle used to pull cut trees out of a forest to a staging area where they
are cut into logs, and a logging truck picks up the logs and transports them to the mill. See R.R.
at 122a-124a, 129a, 314a.
10
Claimant expressed that he never worked on any jobsites at which TSL and Ram were
not involved. See R.R. at 147a, 149a. All of his TSL jobs were conducted for Ram. See R.R. at
149a-150a.
11
Once Claimant began obtaining Ram jobs on his own, TSL no longer informed him about
Ram jobs. See R.R. at 155a.
6
zone where the trees were to be cut into logs and loaded onto the trucks.12 See R.R.
at 128a-130a, 132a-133a. Ram did not train Claimant, but prescribed that stumps
were to be no taller than one foot, and he could not block open trails. See R.R. at
132a-134a, 138a-139a. Claimant clarified that he paid for and used his own
chainsaw and other tools, and used TSL’s skidder and logging truck13 for Ram’s
jobs, and that Ram did not prescribe the days or hours during which work had to be
performed.14 See R.R. at 119a, 123a-124a, 140a-141a, 146a-147a, 161a. He
testified that Ram’s forester would specify the log lengths and would check jobs and
order corrections where necessary, but did not prescribe how Claimant was to do the
work. See R.R. at 124a, 132a-133a, 139a, 141a-143a.
Claimant testified that Ram paid him $30.00 for each 1,000 feet of
lumber he cut. See R.R. at 130a-131a, 144a-145a. Ram calculated how much money
Claimant was owed for each job, and Ram paid him with Ram checks signed by
Ram’s owner, Bob Mallery (Mallery). See R.R. at 119a-121a. Claimant described
that his fellow logger Jim Berlin’s (Berlin) wife would pick up their paychecks from
Ram’s office. See R.R. at 127a-128a, 146a. Claimant admitted that Ram did not
provide health insurance for him, that he did not execute any proof of citizenship or
tax withholding forms for Ram, and that Ram provided him with Internal Revenue
Service (IRS) 1099-Misc forms (1099 Form). See R.R. at 143a-144a, 154a, 546a-
547a.
Ram’s chief financial officer Paul Westerburg (Westerburg) testified
that Ram has 85 employees and that all of Ram’s employees complete local earned
income tax resident certification forms, citizenship forms, and smoking policy, cell
12
Claimant admitted there were times that he had to cut access paths to the cutting zones,
and/or divert water, but that was unpaid work. See R.R. at 131a, 162a-163a.
13
Claimant stated that Ram paid TSL for use of the skidder, and he assumed Ram paid
TSL to use the logging truck. See R.R. at 123a-124a, 155a-156a, 161a-162a.
14
Ram did provide deadlines by which each job had to be completed. See R.R. at 140a.
7
phone policy, and emergency contact forms. See R.R. at 174a-176a. He confirmed
that Ram has no such forms completed by Claimant. See R.R. at 176a. Westerburg
explained that Ram paid Claimant because, at some point, Smith had “requested . . .
that [Ram] start paying [Smith] and his two contractors . . . [] Berlin and [Claimant],
. . . separately. And [Ram] agreed to do that.” R.R. at 180a; see also R.R. at 206a-
207a. He described that, beginning in November 2017, Ram paid Claimant based
on Ram’s scalers’ determinations based on log volume. See R.R. at 208a-210a,
213a, 217a. Westerburg added that Ram had an IRS W-9 form which Claimant
completed in November 2017, on which Claimant designated that he was an
“Individual/sole proprietor, or single-member LLC,” R.R. at 460a, and Ram issued
1099 Forms to Claimant in 2017, 2018, and 2019, like it did for all of its logging
contractors. See R.R. at 180a, 223a, 546a-547a. Ram’s 2017, 2018, and 2019 1099
Forms reflected that Ram paid Claimant “nonemployee compensation.”15 R.R. at
546a-547a.
Westerburg confirmed that he never met Claimant, and that Ram did
not interview or hire Claimant, train him, instruct him on any job, or supply his tools;
rather, all communication was through TSL. See R.R. at 178a-180a, 198a.
Westerburg described that, if Ram had concerns with Claimant’s work, it would have
raised them to Smith. See R.R. at 205a.
Westerburg stated that Ram entered into the contract for the Bradford
City Water Authority job, but none of Ram’s employees were on site at that job. See
R.R. at 176a, 186a, 200a. He described that the skidder and logging truck used at
the Bradford City Water Authority job belonged to TSL. See R.R. at 195a-196a,
211a-212a. He explained that Ram paid $160.00 per 1,000 feet of timber cut and
15
See also Claimant’s 2017, 2018, and 2019 Individual Tax Returns. See R.R. at 551a-
640a.
8
skidded: $95.00 to TSL, $35.00 to Berlin, and $30.00 to Claimant. 16 See R.R. at
226a-227a, 229a-234a, 378a-380a. Westerburg declared that Ram did not provide
any insurance benefits to Claimant, and Claimant was not among the employees
covered by Ram’s WC insurance. See R.R. at 179a-180a. Westerburg testified that,
since Claimant’s accident, Ram made sure it obtained signed independent contractor
agreements from each of its logging contractors. See R.R. at 207a, 213a-215a.
Smith testified that he began logging for Ram as an independent
contractor in approximately 2006, and has logged for Ram since that time. See R.R.
at 332a. Smith represented that it is standard in the industry for loggers to be
independent contractors, and TSL never had employees, and Claimant was never on
TSL’s payroll. See R.R. at 349a, 354a-355a, 378a. Smith described that, over the
years, he acquired skidders, bulldozers, and a logging truck, and paid independent
loggers to be on his crews. See R.R. at 332a-333a. Smith asserted that the loggers
on TSL’s crews, including Claimant, were independent contractors to whom TSL
issued 1099 Forms until 2018. See R.R. at 333a, 355a-356a, 382a-384a. Smith
reported that Claimant supplied and used his own chainsaw and personal protective
equipment and, although he occasionally used a skidder, he was primarily a cutter.
See R.R. at 357a-358a, 394a-395a.
Smith explained that, since logging is a very dangerous job, he carried
WC insurance for the independent contractors, initially under Nortim and then later
under Allied Eastern Indemnity Company. See R.R. at 333a-334a. However, at
some point, after Smith discovered that Amish loggers outbid TSL for jobs because
the Amish did not carry WC insurance, Smith met with Ram foresters to discuss the
prohibitively expensive WC insurance rates (compared to what they are paid) and,
16
That rate did not include hauling the logs to the mill, for which Ram paid Smith
separately. See R.R. at 339a, 379a.
9
ultimately, Ram agreed to increase the rate it paid TSL. See R.R. at 333a-336a,
349a, 351a. Smith added:
But then the rate went back down and at that point I just
basically couldn’t do any more. Threw my hands up. Said
I don’t want to be exposed to that anymore. And I - I was
prepared to shut everything down but the [logging] truck,
but [] Berlin wanted to continue on. So that’s why he
wanted to - to keep logging as an independent contractor
for Ram directly I guess.
R.R. at 336a.
Smith recounted that, during an impromptu talk with Mallery at Ram’s
mill in approximately May 2018, Mallery stated that Ram would pay the men on
TSL’s logging crew - Berlin and Claimant - directly. See R.R. at 336a-337a.
Thereafter, TSL’s WC insurance was cancelled and Smith worked on his own,
primarily trucking logs, while Berlin rented the skidder from Smith and obtained
jobs directly from Ram. See R.R. at 337a-340a, 361a-364a, 369a, 385a-391a, 445a,
473a-480a, 496a. Smith acknowledged that, although it may have appeared that he,
Berlin, and Claimant were still working together under TSL because they were often
at the same job sites together, that was not the case. See R.R. at 340a-341a. Smith
claimed that he did not negotiate the $160.00 per 1,000 foot board rate with Ram,
stating that it must have been Berlin, since Smith was only concerned about the
$95.00 Berlin would pay him for the skidder rental. See R.R. at 376a, 379a-380a.
Smith declared that, as of August 2019, Claimant had worked with TSL
as an independent contractor for several years and, until May 2018, TSL provided
Claimant WC insurance coverage. See R.R. at 342a-345a. He recalled that Claimant
received logger training at State of Forestry Initiative (SFI) classes that TSL initially
paid for, but Ram eventually reimbursed TSL for Claimant’s training. See R.R. at
356a-357a. Smith offered that, at the time of Claimant’s accident, Claimant was
primarily a cutter and Berlin operated the skidder. See R.R. at 346a-347a.
10
Although Smith could not recall how he found out about the Bradford
City Water Authority job, he believes that Berlin informed Claimant about it. See
R.R. at 360a, 376a-377a. Smith specifically declared that TSL did not employ,
supply tools to, or control Claimant’s work in 2019. See R.R. at 381a-384a, 392a-
393a.
Mallery testified that he has been Ram’s president and owner since
1977. See R.R. at 311a. Mallery reported that Ram does not employ loggers, or any
other employees who cut and skid trees. See R.R. at 314a-315a, 319a, 325a-327a.
Instead, Ram contracts that work to logging companies, all of whom are independent
contractors, which has always been standard in the industry. See R.R. at 316a-317a,
319a-320a, 324a. Mallery further declared that he does not get involved with logger
rate negotiations; instead, that is up to Ram’s foresters. See R.R. at 323a-324a.
Fox testified that he is one of Ram’s six procurement foresters who are
responsible for purchasing standing timber and administrating logging contractors,
and declared that all logging contractors are independent contractors. See R.R. at
258a, 276a, 278a, 295a. Fox asserted that he never interviewed or hired Claimant to
work for Ram, nor was Claimant ever a Ram employee or an independent contractor
hired by Ram; rather, he understood Claimant to be an employee or subcontractor
working under TSL for Ram, including at the Bradford City Water Authority job.
See R.R. at 258a-259a, 261a, 277a-278a, 298a, 300a-301a.
Fox recalled that Ram encouraged at least one person on every logger
contractor crew to attend SFI program training, for which Ram initially reimbursed
the contractors. See R.R. at 289a-290a. Fox expressed that TSL has logged for Ram
since approximately 2006. See R.R. at 286a-287a. Fox declared that Ram did not
dictate TSL’s schedule nor supply the tools or equipment necessary to do any job.17
17
Fox testified that, at most, Ram provided logging contractors with spill kits to be used in
cases of fuel or liquid spills or leakages. See R.R. at 269a.
11
See R.R. at 269a-271a, 297a. Fox stated that, aside from specifying how the logs
should be cut for market conditions and visiting job sites to check site conditions,
Ram did not direct TSL or Claimant as to how the logging work should be done. See
R.R. at 272a, 279a-282a, 295a-296a. Fox added that, if there were issues with
logging work at the sites (excessive mud, damaged soil or trees, etc.), he would
discuss them with Smith. See R.R. at 279a, 282a-283a.
Based on the record evidence, the WCJ made the following relevant
findings of fact:
After carefully considering the evidence presented by both
parties, there appears to be no evidence that Ram
controlled the manner in which [Claimant] performed his
logging duties. There is no evidence to establish that Ram
informed [Claimant] directly what needed to be done, nor
did Ram direct [Claimant] as to how the work was to be
performed. During his testimony, [Claimant]
acknowledged that no one from Ram called him and
informed him that Ram wanted him to do any particular
job. To the contrary, he testified that information
regarding a particular job would be relayed to him by []
Smith. [Claimant] acknowledged that Ram did not tell
him when to start a particular job on a particular day, nor
did Ram direct him to stop working at the end of a
particular day. [Claimant] further acknowledged that he
never received any type of training from Ram. As the
representatives from Ram testified, they had no direct
relationship with [Claimant].
....
This [WCJ] further notes that there appears to be no
evidence of record indicating that there was any type of
employment agreement between the parties. As
[Claimant] acknowledged, he never interviewed for a job
position with Ram. Furthermore, [Claimant]
acknowledged that Ram did not provide him with health
insurance, he did not complete any tax forms or any
withholding forms, and specifically testified that he never
filled out anything for Ram.
12
Based upon the evidence of record, this [WCJ] further
finds that Ram never provided any type of training for
[Claimant], and never paid for training that [Claimant]
received from another source. As [Claimant] testified,
when he was employed through [TSL], he was provided
training as to how to cut down a tree. [] Westerburg
testified that Ram did not provide training to [Claimant],
further explaining that Ram subcontracts the cutting of
trees to independent contractors because Ram does not
have the experience.
Regarding the issue of who supplied the tools necessary to
perform the job, the evidence of record indicates that two
of the most critical tools in the logging business are a
chainsaw and a skidder. [Claimant] acknowledged that
Ram did not provide him with a chainsaw or any other
tools. To the contrary, [Claimant] acknowledged that the
saws were his own, and the skidder was [TSL’s].
The evidence of record further indicates that the tax forms
completed by [Claimant] revealed his status as an
independent contractor. [Claimant] completed a W-9
form, acknowledging that he was a sole proprietor and not
an employee. Furthermore, Ram issued 1099[] [Forms] in
2017, 2018[,] and 2019 indicating that it considered
[Claimant] as an independent contractor and not an
employee. [Claimant] completed tax forms in 2017,
2018[,] and 2019, noting his self-employment as a logger.
Furthermore, there is no dispute that [Claimant] was not
paid based on his hours of work, or at a weekly rate, but
instead was paid on the basis of his production. [Claimant]
was paid $35.00 [sic] per [1,000] feet of timber, which he
produced for [Ram]. [Claimant] further acknowledged
that he was free to reject jobs that were provided by Ram.
Finally, this [WCJ] notes that the evidence of record
indicates that logging was not part of the regular business
of Ram. During the proceedings, [] Westerburg and []
Mallery explained that Ram is a high volume hardware
lumbar sawmill which does not employ any loggers.
While it is obvious that Ram, as a sawmill, needs lumber,
it was not part of [its] regular business to perform the
logging work. To the contrary, Ram hired independent
contractors to perform the logging.
13
To the extent that . . . [Claimant] testified in support of his
assertion that he was an employee of Ram at the time of
his injury, this [WCJ] does not find [Claimant’s] testimony
to be credible or persuasive.
To the contrary, this [WCJ] accepts as more credible and
persuasive the testimony of [Ram’s] witnesses, []
Westerburg, [] Fox and [] Mallery, that [Claimant] was an
independent contractor, and not an employee of Ram, at
the time of his injury. Not only has [Claimant] failed to
prove the existence of an employer/employee relationship
between Ram and himself, but the evidence of record
provides clear and convincing evidence that, per the
standard in the industry, [Claimant] was an independent
contractor at the time of his injury.
WCJ Dec. at 8-11. The WCJ concluded: “Based upon the foregoing Findings of
Fact, it is concluded as a matter of law that [Claimant] has failed to sustain his burden
of proving that he was an employee of [Ram], rather than an independent contractor,
at the time of his August 16, 2019 injury.” WCJ Dec. at 11.
“For purposes of appellate review, it is irrelevant whether
there is evidence to support contrary findings; if
substantial evidence supports the [fact-finder]’s necessary
findings, those findings will not be disturbed on
appeal.”[18] Verizon [Pa.] Inc. v. Workers’ Comp[.] Appeal
[Bd.] (Mills), 116 A.3d 1157, 1162 (Pa. Cmwlth. 2015).
When “performing a substantial evidence analysis, this
Court must view the evidence in a light most favorable to
the party who prevailed before the fact-finder.” WAWA v.
Workers’ Comp[.] Appeal [Bd.] (Seltzer), 951 A.2d 405,
408 (Pa. Cmwlth. 2008). Further, when determining
whether substantial evidence exists to support a finding of
fact, this Court must give to the party in whose favor the
appealed decision was decided “the benefit of all
inferences that can logically and reasonably be drawn
from the evidence.” B.J.K. v. Dep[’t] of Pub[.] Welfare,
773 A.2d 1271, 1276 (Pa. Cmwlth. 2001).
18
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Obimak Enter. v. Dep’t of Health, 200 A.3d 119, 126 (Pa.
Cmwlth. 2018) (quoting B.B. Kim’s Mkt., Inc. v. Dep’t of Health, Div. of Women, Infants & Child.
(WIC), 762 A.2d 1134, 1135 (Pa. Cmwlth. 2000)).
14
Obimak Enter. v. Dep’t of Health, 200 A.3d 119, 126 (Pa. Cmwlth. 2018).
Since this Court may not reweigh the evidence or the WCJ’s credibility
determinations, and because the record evidence supports the WCJ’s findings of fact
and conclusions of law,19 this Court holds that the Board properly affirmed the
WCJ’s determination.
Based on the foregoing, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
19
The WCJ’s finding that Ram “never paid for training that [Claimant] received from
another source[,]” WCJ Dec. at 10, is contrary to Fox’s statement that Ram would reimburse
loggers for the SFI training, see R.R. at 289a-290a, and Smith’s testimony that Claimant underwent
SFI training for which TSL initially paid, and Ram reimbursed TSL. See R.R. at 356a-357a; see
also Board Op. at 8 n.1. Notwithstanding, in light of the other evidence, this was a de minimis
error.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Conner, :
Petitioner :
:
v. :
:
Ram Forest Products, Inc. :
and Todd Smith Logging, Inc. :
(Workers’ Compensation :
Appeal Board), : No. 1064 C.D. 2021
Respondents :
ORDER
AND NOW, this 28th day of April, 2022, the Workers’ Compensation
Appeal Board’s September 1, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge