D&R Construction v. H. Suarez (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

D&R Construction, :

Petitioner :

:

v. : No. 912 C.D. 2023

: No. 913 C.D. 2023

Hector Suarez, Travelers Insurance : ARGUED: February 4, 2025

Company, Uninsured Employers :

Guaranty Fund, and :

T&L Development (Workers’ :

Compensation Appeal Board), :

Respondents

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: April 28, 2025

Petitioner, D&R Construction (D&R), petitions for review of the March

13, 2018 and July 26, 2023 orders of the Workers’ Compensation Appeal Board.

The Board’s 2018 order reversed a decision of the Workers’ Compensation Judge

(WCJ) denying the claim petition of Claimant, Hector Suarez, finding that the WCJ

erred in determining that Claimant was an independent contractor rather than an

employee, and remanded to the WCJ for further proceedings. The Board’s 2023

order affirmed the WCJ’s decision granting Claimant’s claim petition against D&R,

dismissing a claim petition against the Uninsured Employers Guaranty Fund (the

Fund), and dismissing a joinder petition filed by D&R against T&L Development

(T&L). After careful consideration, we affirm both orders.

I. Procedure and Background

A. Claim Petitions and Initial WCJ Decision

It is undisputed that on August 28, 2010, while working at a hotel

construction site, Claimant fell approximately three floors from scaffolding and

suffered serious injuries, including a fractured pelvis and ankle. Claimant filed a

claim petition under the Workers’ Compensation Act (Act)1 in October 2010,

alleging that he sustained an injury in the course and scope of his employment with

D&R. Certified Record (C.R.) at 14.2 The claim petition listed Travelers Insurance

Company as D&R’s workers’ compensation insurance carrier. Id. D&R filed an

answer denying all material allegations and specifically averring that Claimant was

not an employee of D&R but rather an independent contractor. C.R. at 36. In

February 2011, Claimant filed a claim petition against the Fund containing the same

allegations, as there was a dispute as to whether Travelers provided D&R with

coverage in Pennsylvania at the time of Claimant’s injury. See C.R. at 36; see also

D&R Constr. v. Workers’ Comp. Appeal Bd. (Suarez), 167 A.3d 837, 839 n.1 (Pa.

Cmwlth. 2017) (en banc) (D&R I). D&R subsequently filed a joinder petition

against T&L in April 2011, alleging that T&L was the general contractor for the job

on which Claimant was injured and, therefore, T&L was responsible for the payment

of workers’ compensation benefits, if owed. C.R. at 25, 36.

The parties agreed to bifurcate the case, with the WCJ to determine the

threshold issue of whether Claimant was an employee or an independent contractor.

C.R. at 36. If the WCJ found that Claimant was an employee, she would then

determine whether he was injured in the course and scope of his employment and

1

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

2

Because the Certified Record was submitted electronically, the page numbers referenced

throughout this opinion reflect electronic pagination.

2

whether the injury occurred as a result of a violation of a positive work order. Id.

The issue of insurance coverage was deferred. Id.

Claimant testified before the WCJ that while he was living in Memphis,

Tennessee, he had a telephone conversation with David Alcantara who was doing

business as D&R. Mr. Alcantara offered Claimant a job in Pennsylvania working as

a carpenter placing roof trusses. Claimant was expected to work 8-10 hours per day,

6 days per week, at a rate of $16.00 per hour. He started working in mid-August

2010. Claimant was also told that he and several other workers would be sharing a

hotel room with Mr. Alcantara, at Mr. Alcantara’s expense. C.R. at 36.

Mr. Alcantara drove Claimant to and from the work site every day as

Claimant had no other means of transportation. According to Claimant, Mr.

Alcantara determined when Claimant would take breaks and gave “specific

instructions on what needed to be done on a daily basis,” and Claimant “had no

control of the jobs or tasks that needed to be completed.” C.R. at 36. Claimant

believed he worked for D&R. Id.

At the end of the day on August 28, 2010, Claimant was told to collect

his tools by the job superintendent, Robert Wallace, because Mr. Alcantara was not

at the job site that day. Claimant removed his safety harness and began to collect

the tools, but inadvertently stepped on an area of the scaffold where a piece of wood

was missing. Claimant fell approximately 24 feet and landed on his left side. He

was taken to a local hospital and later life flighted to a trauma hospital in Pittsburgh,

where he underwent multiple surgeries. He has not worked since the injury and

receives Social Security Disability benefits. C.R. at 36-37, 72, 200.

Mr. Wallace was not present when Claimant fell as he left the job site

to purchase beer for the crew at the end of the shift. Claimant maintained that the

crew was not done cleaning up when Mr. Wallace left and that when Claimant “fell

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he was taking care of the last details and making sure there were no tools left out[.]”

C.R. at 37.

On cross-examination, Claimant confirmed that he received an Internal

Revenue Service 1099 form (1099 form) from D&R rather than a W-2, and that no

taxes were deducted from the wages he received. However, he believed that Mr.

Alcantara would do the taxes at the end of the year. He agreed that he was a framing

specialist or carpenter, not a general laborer, and that he was paid more per hour

accordingly. He did not bring his own tools with him because he flew from

Tennessee to Pennsylvania. Mr. Alcantara took Claimant to the store and purchased

tools for him, with the understanding that he would pay Mr. Alcantara back.

Claimant stated “that while Mr. Alcantara usually informed him of what to do on a

certain day, he already knew what to do on the date he fell[.]” C.R. at 37.

Gonzales Suarez, Claimant’s brother, testified that he worked with

Claimant on the project here in Pennsylvania. Mr. Suarez stayed in the same hotel

room with Claimant and Mr. Alcantara, and confirmed that Mr. Alcantara drove

them to and from work. Mr. Alcantara told them what to do every day and provided

their tools. C.R. at 38.

Mr. Suarez stated that at the time Claimant fell, he was in a room inside

the hotel standing below Claimant who was outside on the scaffolding. Claimant

was handing Mr. Suarez tools when he fell, but Mr. Suarez did not actually see

Claimant fall. Mr. Suarez confirmed that Mr. Wallace had already left the job site

to buy beer for the crew and they were putting away the remaining tools when the

incident occurred. He also confirmed that Claimant was not wearing his safety

harness at the time. C.R. at 38.

Mr. Alcantara testified that he resides in North Carolina and is the

owner of D&R. In this position, he performed masonry work at the hotel in June

4

2010. Once the masonry work was completed, he began performing carpentry and

framing work at the hotel for T&L. Mr. Alcantara was unable to complete all of the

work himself, so he contacted a friend in Tennessee who recommended Claimant.

Mr. Alcantara told Claimant that he would be paid $16.00 per hour and would be

responsible for his own taxes at the end of the year. He did not pay for Claimant’s

transportation to Pennsylvania. Mr. Alcantara considered Claimant to be an

independent contractor and hired him due to his skills as a framer/carpenter rather

than a general laborer. C.R. at 38-39.

In terms of payment, T&L paid D&R for the services provided on the

hotel project on an hourly basis, and D&R then paid Claimant and the other workers.

Claimant did not have his own tools when he arrived from Tennessee; therefore, Mr.

Alcantara loaned Claimant money to purchase tools and indicated that he would

deduct the money from Claimant’s pay. However, Claimant fell before receiving

his first paycheck and Mr. Alcantara was never reimbursed for the tools. Mr.

Alcantara explained that he had enough tools to lend to Claimant so that he could

perform his duties as a carpenter, but “the deal” was that Claimant was to use his

own tools. C.R. at 39.

Mr. Alcantara confirmed that Claimant shared his hotel room and that

they rode to and from work together on a daily basis. According to Mr. Alcantara,

he did not dictate when Claimant began work or when he could leave the job site

each day. However, Mr. Alcantara acknowledged that he was Claimant’s only

source of transportation. Mr. Suarez also came to work on the project, but he did

not have carpentry skills. Mr. Suarez quit after learning that he would only be paid

general laborer wages and not carpenter wages. C.R. at 39.

Mr. Wallace testified that he began working as a construction manager

for T&L at the hotel site in March 2010. He was not an employee of T&L, and he

5

received a 1099 form. It was Mr. Wallace’s responsibility to keep the job moving

along smoothly and to inform the separate contractors what their particular job was

on the site. Mr. Wallace confirmed that he did not pay Claimant directly; rather, Mr.

Alcantara submitted daily timesheets to T&L for the individuals on his crew and

then T&L paid D&R for the total hours worked. C.R. at 40-41.

The day of the incident, Mr. Wallace worked alongside Mr. Alcantara’s

crew felting the roof from 7:00 a.m. to 3:30 p.m. Everyone working on the roof that

day would have been wearing a safety harness because it was required for that type

of work. According to Mr. Wallace, the only tools necessary to lay a felt roof are a

hammer, nails, and a knife. At the end of the shift the felting was not finished, so

the workers descended from the roof at the same time and locked all of the tools,

including the safety harnesses, in the tool room. Mr. Wallace then left the site to

buy the crew a case of beer, and they were all standing in the parking lot on the other

side of the building when he left. Mr. Wallace specifically denied asking Claimant

or anyone else to clean up the tools and stated that, because the tools were already

locked up, there was no reason to return to the roof. When Mr. Wallace returned to

the job site, Claimant had already fallen. There were no tools on the roof when Mr.

Wallace returned, and Claimant was not wearing a safety harness at the time he fell.

C.R. at 40.

Mr. Wallace explained that Mr. Alcantara was not able to decide on his

own to felt the roof; rather, Mr. Wallace informed him what work the crew needed

to complete. Mr. Wallace also told Mr. Alcantara not to bring back several workers

because they were caught stealing materials. C.R. at 41.

The WCJ issued a decision and order on January 31, 2013, finding that

Claimant was an independent contractor rather than an employee, and thus denying

his claim petition against D&R. The WCJ further held that even if Claimant was an

6

employee of D&R, his injury occurred as a result of his violation of a positive work

order—namely, not wearing a safety harness—and therefore was not sustained in

the course and scope of his employment. The claim petition against the Fund and

D&R’s joinder petition against T&L were also dismissed. C.R. at 43-44.

In rendering her decision, the WCJ accepted as credible and persuasive

the testimony of Mr. Alcantara and Mr. Wallace. She found the following facts

relevant to the determination: Claimant was told he would be paid an hourly rate and

would be responsible for his taxes at the end of the year; he was issued a 1099 form;

and he was responsible for his own tools and because he could not bring them on his

flight, he was to reimburse Mr. Alcantara for their purchase. C.R. at 41-42. As the

WCJ explained,

[i]t is clear from the testimony of Mr. Alcant[a]ra and from

[C]laimant that he was a professional carpenter/framer and

did not need to be told how to perform his job duties. This

[WCJ] does not find the fact that Mr. Alcant[a]ra had to

inform [C]laimant of what specific job needed to be done

on a particular day establishes that he had “control” over

the manner in which [C]laimant performed his work[.]

C.R. at 42. The WCJ found that Mr. Wallace’s testimony established he did not

control how Claimant performed his duties either. She specifically found credible

Mr. Wallace’s testimony: that he did not order Claimant or Mr. Suarez to return to

the roof to clean up tools, or for any other reason; that when Mr. Wallace left the job

site Claimant and the other workers were in the parking lot; that there would be no

reason to remove the ropes from the roof until the entire project was completed; and

that the ropes remained tied to the roof and Claimant’s tool belt remained locked in

the tool room when Mr. Wallace returned. C.R. at 42-43.

7

The WCJ found the testimony of Claimant to be credible in part,3

specifically: that he was performing carpenter duties which required more skills than

a laborer; that Mr. Alcantara purchased tools for him with the agreement that he

would pay back Mr. Alcantara; and that Claimant was provided with a 1099 form

and no taxes were deducted from his pay. The WCJ rejected Claimant’s testimony

pertaining to his allegations that he was an employee of D&R. Based upon the

credible testimony of Mr. Wallace, the WCJ found that when Claimant went back

into the building, his shift was over, “he was off of [sic] duty and in no way was

furthering the interests of D&R[.]” C.R. at 43. Finally, she found “that when

[C]laimant returned to the roof, for whatever reason, he was not wearing a safety

harness which was clearly in violation of a positive work order to wear the same

when working on or around the roof.” Id.

B. Prior Board Decision and D&R I

Claimant appealed to the Board, specifically challenging all four

conclusions of law as well as the WCJ’s finding of fact number six pertaining to the

resolution of the conflict of evidence and the credibility determinations. C.R. at 46.

His appeal form further alleged that the decision is not reasoned and that the WCJ

erred as a matter of law in determining that he was an independent contractor and

was not in the course and scope of employment at the time of his injury. Id.

The Board issued an opinion and order dated July 6, 2016, finding that

the WCJ erred in determining that Claimant was an independent contractor, therefore

reversing the WCJ’s order and remanding for further proceedings on the merits,

including the joinder petition. C.R. at 70, 84. Notably, the Construction Workplace

3

The WCJ rejected the testimony of Mr. Suarez, noting that it was illogical and conflicted

with Claimant’s testimony.

8

Misclassification Act (CWMA)4 was enacted on October 13, 2010, with an effective

date of February 10, 2011. The Board acknowledged that the CWMA did not

become effective until approximately six months after Claimant’s accident. C.R. at

78. Nonetheless, it found “the factors contained therein to be instructive in

determining how to evaluate the present matter,” describing the CWMA “as a

clarification of the traditional test for establishing an employment relationship[.]”

Id. The Board did “note that even under a traditional common law analysis, []

Claimant would properly be considered an employee under the facts in this case.”

C.R. at 79. The Board noted that the most important factor under the common law

analysis is control of the work and the manner in which it is performed, which here

pointed to Mr. Alcantara and D&R. C.R. at 79-80. The Board also determined that

the WCJ erred in finding that Claimant was not in the course and scope of his

employment because he violated a positive work order by failing to wear his safety

harness. C.R. at 80.

Both D&R and the Fund filed applications requesting that the Board

amend its order to include language from Section 702(b) of the Judicial Code, 42

Pa.C.S. § 702(b), regarding an immediate appeal from the interlocutory order, which

the Board denied. This Court subsequently granted, in part, the petitions for

4

Act of October 13, 2010, P.L. 506, 43 P.S. §§ 933.1-933.17. The CWMA provides

guidance on the proper classification of individuals working within the construction industry.

Dep’t of Lab. & Indus. v. Workers’ Comp. Appeal Bd. (Lin & E. Taste), 187 A.3d 914, 924 (Pa.

2018). It sets forth specific “criteria which must be established in order for an individual in the

construction industry to be deemed an independent contractor and not an employee for purposes

of workers’ compensation.” D&R I, 167 A.3d at 842. See also Section 3(a) of the CWMA, 43

P.S. § 933.3(a).

9

permission to appeal filed by D&R and the Fund pursuant to Pennsylvania Rule of

Appellate Procedure (Pa.R.A.P.) 1311(b).5

Following briefing and argument en banc, the Court in D&R I held “that

the CWMA cannot be applied retroactively in workers’ compensation matters to

determine whether an individual is an employee or an independent contractor.”

D&R I, 167 A.3d at 843. Moreover, “the CWMA may not be used as guidance for

the application of the traditional factors under the common law to determine whether

an employment relationship existed.” Id. at 845. As the D&R I Court explained,

[w]e note the Board stated that even under the traditional

common law analysis, Claimant would be considered an

employee under the facts of this case. Because we are not

confident that the Board was not predisposed to such a

finding given its aforementioned analysis, we remand the

matter to the Board to address whether Claimant sustained

his burden of proving an employer-employee relationship

solely under the traditional factors set forth in the common

law.

Id. Further, “[i]f the Board determines that Claimant was an employee, it shall

address the remaining issues that were raised by the parties on appeal from the

WCJ’s order.” Id. at 845 n.17.

C. Decisions Following Remand

On March 13, 2018, the Board issued an opinion and order reversing

the WCJ’s decision and remanding for further proceedings. C.R. at 147-61. Using

the traditional common law test, the Board again found that the WCJ erred in

determining that Claimant was an independent contractor rather than an employee.

5

This Court’s order granting, in part, the petitions limited the issues on appeal to whether

the Board erred in retroactively applying the CWMA to determine whether Claimant was an

independent contractor; and whether the Board erred by considering the CWMA as guidance for

the application of the common law analysis to determine who qualifies as an independent

contractor. D&R I, 167 A.3d at 840-41.

10

C.R. at 158. The Board explained that D&R, through Mr. Alcantara, had control of

the work and the manner in which it was performed, which is the most important

factor under the common law test. See Universal Am-Can, Ltd. v. Workers’ Comp.

Appeal Bd. (Minteer), 762 A.2d 328 (Pa. 2000). In support of its analysis, the Board

cited the following facts: D&R paid Claimant an hourly rate and paid for his hotel

room; Mr. Alcantara drove Claimant to and from the job site every day; Claimant

had no say in the hours he worked if he wanted a ride; and both Mr. Alcantara and

Mr. Wallace specifically testified that they told Claimant what to do on the job site.

C.R. at 158.

The Board also reiterated its prior holding that the WCJ erred in

determining that Claimant was not furthering D&R’s affairs when he returned to the

roof and that he violated a positive work order by failing to wear his safety harness.

C.R. at 159-60. The Board instructed the WCJ to consider D&R’s joinder petition

on remand because it was no longer moot. C.R. at 160.6

Following remand, the WCJ issued a decision on September 13, 2021,

finding that Claimant was an employee of D&R because that entity had the right to

control Claimant’s work and the manner in which it was done, and that D&R had a

workers’ compensation insurance policy through Travelers that was in effect and

covered Pennsylvania at the time of Claimant’s injury. C.R. at 208, 211. The WCJ

also rejected D&R’s argument that Claimant was a borrowed employee at the time

of the incident. Thus, the WCJ granted Claimant’s claim petition against D&R, and

dismissed the claim petition against the Fund and the joinder petition against T&L.

C.R. at 212. In addition to her previous factual findings and credibility

6

D&R, Travelers, and T&L each filed petitions for review with this Court from the Board’s

March 2018 opinion and order. The petitions were quashed as interlocutory and not immediately

appealable pursuant to Pa.R.A.P. 311(f) because the Board’s remand involved the exercise of

discretion.

11

determinations, the WCJ noted that the testimony of both Mr. Wallace and T&L’s

attorney, John Toohey, Esquire, established that Mr. Wallace was not an employee

of T&L as that entity never had any employees. C.R. at 203-04, 208. In short, T&L

did not and could not control the work to be done by Claimant. C.R. at 208.

Both D&R and Travelers appealed, and the Board issued a single

opinion and order on July 26, 2023, affirming the WCJ’s decision. C.R. at 342-70.

D&R’s petition for review7 to this Court followed.8

II. Discussion

The issues D&R raises on appeal can be paraphrased as follows: (1)

whether the Board erred in reversing the WCJ’s determination that Claimant was an

independent contractor; (2) whether the WCJ erred in concluding that Claimant was

an employee of D&R, rather than T&L, at the time of his injury; (3) whether the

WCJ erred in rejecting D&R’s argument that Claimant was a borrowed employee;

(4) whether Claimant preserved the issue regarding violation of a positive work

order; and (5) whether the Board erred in reversing the WCJ’s conclusion that

Claimant was not in the course and scope of his employment at the time of his injury

because he violated a positive work order. We will begin with the first two issues,

as they are intertwined.

A. Employee or Independent Contractor

To prevail on a claim petition, a claimant must establish all of the

necessary elements, including the existence of an employment relationship and that

he sustained an injury in the course of his employment. Edwards v. Workers’ Comp.

7

Travelers did not file a petition for review to this Court; therefore, the issue of whether

Travelers provided D&R with workers’ compensation insurance coverage in Pennsylvania at the

time of Claimant’s injury has been waived. See Travelers’ Feb. 26, 2024 Appl. at 2.

8

Both the Board and this Court denied D&R’s requests for supersedeas.

12

Appeal Bd. (Epicure Home Care, Inc.), 134 A.3d 1156, 1162 (Pa. Cmwlth. 2016).

Employment status is critical as independent contractors cannot recover benefits

under the Act. See Am. Road Lines v. Workers’ Comp. Appeal Bd. (Royal), 39 A.3d

603, 610 (Pa. Cmwlth. 2012); Sections 103 and 104 of the Act, 77 P.S. §§ 21-22.

While there is “no hard and fast rule” as to when an employment

relationship exists, Hammermill Paper Company v. Rust Engineering Company, 243

A.2d 389, 392 (Pa. 1968), our Supreme Court has set forth the following factors that

should be taken into consideration under the traditional common law test:

Control of manner work is to be done; responsibility for

result only; terms of agreement 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.

Minteer, 762 A.2d at 333 (quoting Hammermill, 243 A.2d at 392). No one factor is

dispositive, but the key factor that has emerged “is whether the alleged employer

had the right to control the work to be done, and the manner in which work is

performed.” Royal, 39 A.3d at 611. See also Minteer, 762 A.2d at 333. “Moreover,

it is the existence of the right to control that is significant, irrespective of whether

the control is actually exercised.” Minteer, 762 A.2d at 333 (emphasis in original).

The existence of an employment relationship is a question of law to be

determined based on the unique facts presented in each case. Royal, 39 A.3d at 610.

Nevertheless, we are cognizant that this inquiry “depends heavily on the WCJ’s

underlying credibility and factual determinations.” Berkebile Towing & Recovery

v. Workers’ Comp. Appeal Bd. (Harr), 254 A.3d 783, 793 (Pa. Cmwlth. 2021); see

also id. at 790-91 [“As an appellate court . . . we are bound by the WCJ’s authority

13

over questions of credibility, conflicting evidence, evidentiary weight

determinations, and findings of fact.” (citing Edwards, 134 A.3d at 1161)].

D&R argues that the WCJ’s initial determination that Claimant was an

independent contractor and not an employee at the time of his injury is supported by

substantial, competent, and credible testimony of record, and therefore the Board

erred by reversing the WCJ’s decision on this issue. D&R stresses that the WCJ

found the testimony of Mr. Alcantara and Mr. Wallace to be credible, especially

regarding the issue of Claimant’s employment status. The WCJ also specifically

found Claimant’s testimony not to be credible with respect to his allegations that he

was an employee. As this Court noted in remanding the matter to the Board, the

WCJ’s credibility findings “must be upheld and applied even if the record contains

evidence to support findings other than those made by the WCJ.” D&R I, 167 A.3d

at 845 n.17. Further, in assessing the legal conclusions of the WCJ and determining

whether they are supported by substantial evidence, the Board was required to view

the evidence in a light most favorable to D&R as the party who prevailed before the

fact finder. See Capuano v. Workers’ Comp. Appeal Bd. (Boeing Helicopter Co.),

724 A.2d 407 (Pa. Cmwlth. 1999). D&R maintains that the Board erred in both

respects.

D&R ultimately asserts that the credible evidence of record shows that

neither it, nor T&L for that matter, controlled the manner in which Claimant’s work

was performed, which is the most important factor under the common law standard.

The WCJ credited the testimony that Claimant was a professional carpenter/framing

specialist who knew how to perform the assigned work, and that Mr. Alcantara only

advised Claimant what generally needed to be done on a given day, not the manner

in which the job needed to be performed. According to D&R, the other factors also

support the WCJ’s determination, including: that Claimant was given a 1099 form;

14

that he was brought to the job site because of his specialized skill and training as a

carpenter; that the carpenters were compensated more than general laborers; that

Claimant arranged his own transportation from Tennessee to Pennsylvania for this

project; and that Claimant was expected to supply his own tools and borrowed

money from Mr. Alcantara to purchase tools when he arrived without them.

While this is a close case, we find that the Board did not disregard the

WCJ’s credibility determinations, invade the province of the WCJ, or misapply the

common law factors in assessing the employer-employee relationship. To the

contrary, the Board used the testimony of the witnesses that the WCJ found credible

in applying the common law analysis and correctly determined that Claimant was an

employee rather than an independent contractor at the time of his injury. The Board

properly focused on the control of the work and manner in which it is performed.

The testimony of Mr. Alcantara and Mr. Wallace—which the WCJ found to be

credible—is that Mr. Alcantara had the ability to hire and fire employees, not Mr.

Wallace; that Mr. Alcantara told Claimant what specific job to do each day; that

Claimant was responsible for cleaning up tools at the end of the day; that Mr.

Alcantara provided lodging and transportation to and from the work site; that Mr.

Alcantara admitted that Claimant had to adhere to his work schedule, including when

he could take breaks; and that Claimant was paid at an hourly rate. Notably, even

though he did not tell Claimant exactly how to perform his job each day, Mr.

Alcantara admitted to having the ability to control Claimant’s work and the manner

in which it was performed. See Minteer, 762 A.2d at 333 (“it is the existence of the

right to control that is significant, irrespective of whether the control is actually

exercised”). These facts, as a whole, point to the exercise of control by D&R,

through Mr. Alcantara, and that Claimant was therefore an employee of D&R at the

time of his injury. Again, while this case may be close, our Supreme Court has

15

cautioned that “neither the compensation authorities nor the courts should be

solicitous to find contractorship rather than employment, and that inferences

favoring the claim need make only slightly stronger appeal to reason than those

opposed.” Berkebile Towing, 254 A.3d at 790 (quoting Minteer, 762 A.2d at 330).

B. Borrowed Employee

Like the common law standard regarding the employment relationship,

[t]he test for determining whether [an employee] furnished

by one person to another becomes the employee of the

person to whom he is loaned is whether he passes under

the latter’s right of control with regard not only to the work

to be done but also to the manner of performing it.

JFC Temps, Inc. v. Workmen’s Comp. Appeal Bd. (Lindsay), 680 A.2d 862, 864 (Pa.

1996). Again, it is the right to control the manner of the work that is important,

regardless of whether that control is actually exercised. Id. Other factors that may

be relevant include the right to hire and fire the claimant, the skill or expertise

required to perform the work, and the payment of wages. Id.

D&R argues that even if it had been Claimant’s employer and at one

time maintained the right to control his work performance, that right to control

passed to T&L on the day of Claimant’s injury. This argument lacks merit for the

reasons outlined above. The fact that Mr. Alcantara was not on the premises on the

day Claimant fell does not automatically equate to control being passed to T&L

simply because Mr. Wallace was present. In addition, Mr. Wallace was not an

employee of T&L, but was the general contractor on this project, brought in to

essentially manage the subcontractors. The credible evidence of record supports the

finding that D&R retained control and, therefore, the WCJ did not err in rejecting

D&R’s borrowed employee argument.

16

C. Course of Employment and Violation of a Positive Work Order

D&R first argues that Claimant waived the issue of whether he violated

a positive work order because he failed to raise it in his initial appeal of the WCJ’s

January 2013 decision. However, Claimant’s initial appeal challenges finding of

fact number six pertaining to the WCJ’s credibility determinations and resolutions

of conflicts in the evidence, and specifically claims that the WCJ erred in

determining that Claimant was not in the course of his employment when he fell.

C.R. at 46. Violation of a positive work order is explicitly tied to the issue of whether

the injury occurred in Claimant’s course of employment. See Johnson v. Workers’

Comp. Appeal Bd. (Union Camp Corp.), 749 A.2d 1048, 1051 (Pa. Cmwlth. 2000).

Thus, we find that Claimant properly preserved the issue of violation of a positive

work order.

There is a three-prong test for denying benefits to a claimant injured as

a result of disobeying an employer’s order, with the criteria being: (1) the claimant’s

injury was, in fact, caused by the violation of a positive work order; (2) the claimant

knew of the order before the date of the injury; and (3) the order “implicated an

activity not connected with the [claimant]’s work duties[.]” Camino v. Workers’

Comp. Appeal Bd. (City Mission), 796 A.2d 412, 417 (Pa. Cmwlth. 2002) [quoting

Nevin Trucking v. Workmen’s Comp. Appeal Bd. (Murdock), 667 A.2d 262, 268 (Pa.

Cmwlth. 1995)]. “[T]o be ineligible for benefits, the [claimant] must not only have

been injured while in violation of an order, but must have been engaged at the time

of injury in an activity so disconnected with his [] regular duties as to be considered,

with respect to the employer, nothing more than a ‘stranger’ or ‘trespasser.’”

Camino, 796 A.2d at 418. As this Court has stressed, denying benefits based on the

violation of a positive work order is “the very rare exception to the broad general

principle that all injuries sustained by [a claimant] arising in the course of his or her

17

employment and causally related thereto are compensable[.]” Id. [citing U.S.

Airways v. Workers’ Comp’ Appeal Bd. (Dixon), 764 A.2d 635 (Pa. Cmwlth. 2000)].

Under Section 301(c)(1) of the Act, 77 P.S. § 411(1), a claimant’s

injury may be sustained “in the course of employment”

in two distinct situations: (1) where the [claimant] is

injured on or off the employer’s premises, while actually

engaged in furtherance of the employer’s business or

affairs; or (2) where the [claimant], although not actually

engaged in the furtherance of the employer’s business or

affairs, (a) is on the premises occupied or under the control

of the employer, or upon which the employer’s business

or affairs are being carried on, (b) is required by the nature

of his employment to be present on the employer’s

premises, and (c) sustains injuries caused by the condition

of the premises or by operation of the employer’s business

or affairs thereon.

Dixon, 764 A.2d at 640 [citing Hemmler v. Workmen’s Comp. Appeal Bd. (Clarks

Summit State Hosp.), 569 A.2d 395 (Pa. Cmwlth. 1990)]. “The phrase ‘actually

engaged in the furtherance of the business or affairs of the employer’ is given a

liberal construction.” Camino, 796 A.2d at 418.

Here, we find that the Board correctly determined that the WCJ erred

in finding that Claimant was not furthering D&R’s affairs when he returned to the

roof and that he violated a positive work order when he failed to wear his safety

harness. Beginning with the second issue, Mr. Wallace, whose testimony was

accepted as credible, admitted that the workers were allowed to take off their safety

harnesses when they were on the scaffolding. Thus, the fact that Claimant was not

wearing his safety harness at the time he fell from the scaffolding, in and of itself,

does not establish that he violated a positive work order. Unlike other cases where

the claimant was found to be in violation of the employer’s work order, Claimant

here “was not injured while engaged in a matter of personal convenience or interest.”

18

Camino, 796 A.2d at 419 [citing Johnson; Nevin Trucking; Dickey v. Pittsburgh and

Lake Erie R.R. Co., 146 A. 543 (Pa. 1929)].

More importantly, at the time he fell, Claimant was on the scaffolding

attempting to retrieve tools from the roof, or at the very least ensure there were no

tools left on the roof overnight. The record establishes that this was part of

Claimant’s daily job duties. The incident also took place on the worksite shortly

after Claimant’s workday had ended. In sum, it simply cannot be said that at the

time of his injury, Claimant was engaged in an activity so disconnected with his

regular duties as to be considered nothing more than a stranger or trespasser.

Camino, 796 A.2d at 418-19.

For all of the above reasons, we affirm the orders of the Board.

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

19

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

D&R Construction, :

Petitioner :

:

v. : No. 912 C.D. 2023

: No. 913 C.D. 2023

Hector Suarez, Travelers Insurance :

Company, Uninsured Employers :

Guaranty Fund, and :

T&L Development (Workers’ :

Compensation Appeal Board), :

Respondents

ORDER

AND NOW, this 28th day of April, 2025, the March 13, 2018 and July

26, 2023 Orders of the Workers’ Compensation Appeal Board are AFFIRMED.

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita