IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Penn National Security :

Insurance Company, :

:

Petitioner :

:

v. : No. 839 C.D. 2020

: Submitted: June 25, 2021

Darrel Henline (Workers’ :

Compensation Appeal Board), :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: April 11, 2022

Penn National Security Insurance Company (Penn National), workers’ 

compensation carrier for Lingenfelter Yard Work (Lingenfelter), petitions this Court 

for review of the August 11, 2020 order of the Workers’ Compensation Appeal 

Board (Board), which affirmed the December 18, 2018 order and decision of the 

Workers’ Compensation Judge (WCJ). The WCJ granted Darrel Henline’s 

(Claimant) claim petition against Lingenfelter for work injuries Claimant sustained 

on August 11, 2016, when he was working as a laborer for Lingenfelter. The WCJ 

dismissed Claimant’s penalty petition, and dismissed as moot Lingenfelter’s and 

another company’s, Tree Monkey Company’s (Tree Monkey), joinder petitions

1 This matter was assigned to the panel before January 3, 2022, when President Judge 

Emerita Leavitt became a senior judge on the Court.
2

against each other. Penn National argues that the WCJ erred in granting Claimant’s 

claim petition against Lingenfelter because it contends that, at the time of injury, 

Claimant was not working for Lingenfelter and was not insured by Penn National. 

Penn National also argues that the WCJ erred in finding that Penn National’s 

insurance policy covered the work being performed by Claimant on the date of 

injury. After careful review, we affirm. 

The relevant facts as found by the WCJ are as follows. Claimant filed 

a claim petition against Lingenfelter and Penn National alleging that he sustained an 

electric shock injury on August 11, 2016, while working as a laborer for 

Lingenfelter. Certified Record (C.R.) at 68. Claimant alleged that he suffered 

electrical burns affecting his right hand and both feet when he was trimming trees

while standing on the ground, and the arc of the pole saw he was using hit a tree 

branch, and then hit Claimant. Reproduced Record (R.R.) at 2a. Lingenfelter denied 

the material averments in the claim petition. C.R. at 68. Claimant filed a second 

claim petition against Tree Monkey and its workers’ compensation carrier, State 

Workers’ Insurance Fund (SWIF), for the same injury, which Tree Monkey denied. 

Id. Lingenfelter and Tree Monkey then filed joinder petitions, naming each other as 

additional defendants. The WCJ consolidated the petitions for purposes of litigation. 

Id. 

As the parties did not dispute Claimant’s injury, the WCJ bifurcated the 

proceedings to first determine the issue of whether Lingenfelter or Tree Monkey was 

Claimant’s employer on the date of injury. The WCJ held several hearings at which 

Claimant, Lingenfelter, and Tree Monkey had the opportunity to present witnesses 

and documentary evidence regarding the incident and Claimant’s employment. 

Claimant presented his own testimony. Tree Monkey presented testimony from the 
3

owner of both Lingenfelter and Tree Monkey, Kathy Lingenfelter (Owner). 

Lingenfelter presented testimony from Penn National’s underwriting manager, 

Christopher Neff (Underwriting Manager). Lingenfelter also presented deposition 

testimony of insurance broker Heather McClafferty (Broker), who submitted 

applications from Lingenfelter to Penn National for all its commercial insurance 

coverage including workers’ compensation. Lingenfelter also presented an affidavit 

and deposition testimony of a Penn National underwriter, Patricia O’Reilly 

(Underwriter). 

Regarding the employer-employee relationship, Claimant testified that 

he worked for Lingenfelter as a “ground man, laborer,” was paid by Lingenfelter, 

was given Tree Monkey shirts to wear on the job, sometimes used equipment 

supplied by Tree Monkey, where his job duties consisted of landscaping, but did not 

involve climbing trees. R.R. at 152a-54a, 161a-63a. Claimant further testified that 

Tree Monkey employees were involved in climbing trees, but he was not. Id. at 

164a, 173a. Claimant further testified that although he often worked with Tree 

Monkey employees, he never worked directly for Tree Monkey. Id. at 174a. 

Claimant further testified that his day-to-day work was supervised by a Lingenfelter 

employee, Jesse Van Horne, and Tree Monkey employees were supervised by a Tree 

Monkey employee named Dan. Id. at 177a-79a. 

Owner also testified regarding the employer-employee relationship, 

explaining that she and her late husband owned both Lingenfelter and Tree Monkey, 

which are separate entities with separate bank accounts, with Lingenfelter doing 

landscaping and Tree Monkey doing tree removal. Id. at 237a-39a, 247a. Consistent 

with Claimant, Owner testified that Claimant was employed and paid by 

Lingenfelter, and Claimant was supervised by Lingenfelter employee Mr. Van 
4

Horne. Id. at 239a-40a, 244a, 254a. Owner testified that she gave Claimant shirts 

with Tree Monkey on them, which were given as gifts, were not part of any required 

uniform, and she did not provide any shirts with Lingenfelter on them due to cost 

constraints. Id. at 249a, 272a. When asked to explain employees’ duties at each 

company, Owner explained that Lingenfelter employees rake leaves, and trim small 

bushes and trees from the ground, compared to Tree Monkey employees who take 

down trees by climbing them, using climbing gear and other equipment, and that 

Lingenfelter employees do not use climbers or bucket trucks. Id. at 240a-41a. 

Owner further testified that on the day Claimant was injured, Claimant was working 

for Lingenfelter, as subcontractor on the job in which Tree Monkey was the general 

contractor. Id. at 253a-54a. 

As to the issue of Penn National’s coverage, Owner testified that Broker 

prepared Lingenfelter’s workers’ compensation insurance application, and that she 

relied on Broker to assign the proper code to Lingenfelter’s work. R.R. at 255a256a. Broker testified that although she was not sure if she, or someone else in her 

office, prepared Lingenfelter’s workers’ compensation application, she agreed that 

the information in the application was accurate to the best of her belief. Id. at 344a, 

347a-48a, 378a. Broker testified that the business codes contained in Lingenfelter’s 

workers’ compensation insurance application “come[] from the state” and that she 

“cannot change these codes.” Id. at 351a-52a. Broker testified that she believed 

Penn National should not have denied Claimant’s claim on coverage grounds, so 

long as Lingenfelter employees performed landscaping duties on the ground, their 

work should be covered by Penn National, and she sent several emails to Penn 

National and to the Workers’ Compensation Rating Bureau, which assigns codes to 

businesses, to try and resolve the coverage issue. Id. at 353a, 364a, 369a-70a, 379a. 
5

Underwriting Manager testified that Penn National provided workers’ 

compensation to Lingenfelter but not to Tree Monkey, because of the “high hazard 

nature” of Tree Monkey’s business, “working at heights and climbing through 

trees.” R.R. at 287a. Underwriting Manager confirmed that Penn National’s 

information regarding Lingenfelter employees’ job duties came from Broker, acting 

as Penn National’s agent, through Broker’s agency, the Jack Bonus agency. Id. at 

289a, 312a-13a. Underwriting Manager agreed that Lingenfelter employees were 

permitted to trim hedges and bushes under the landscaping code 012 on its 

application, but he declined to state whether Penn National would deny coverage for 

a Lingenfelter employee injured while trimming a tree. Id. at 302a-03a. Underwriter 

testified that she approved Lingenfelter’s workers’ compensation insurance 

application based on the description of its work as “lawn maintenance, mowing, 

cleaning of yard debris,” and “no snow plowing.” Id. at 432a, 440a. Underwriter 

also testified that Lingenfelter’s application for workers’ compensation insurance 

does not say whether it prunes trees or does not prune trees, but that she approved it 

anyway. Id. at 439a-40a. 

Pursuant to Section 410 of the Workers’ Compensation Act (Act),2 77 

P.S. §751, the WCJ issued an interlocutory order which ordered both Lingenfelter 

and Tree Monkey, and their insurers, to equally pay Claimant’s indemnity and 

medical benefits. C.R. at 68. The WCJ issued another interlocutory order in which 

he determined that the “credible testimony and documentary evidence of record in 

2 Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-

1041.4, 2501-2710. Section 410 of the Act provides in relevant part that “[w]henever any claim 

for compensation is presented and the only issue involved is the liability as between” two or more 

employers or their carriers, the WCJ shall order payments to be made immediately by employers 

or their carriers. After a final decision, payments made by the employer or carrier not liable shall 

be assessed against the liable employer or carrier. 
6

this matter demonstrates that Claimant was an employee of Lingenfelter [], and not 

an employee of Tree Monkey [], at the time of his alleged August 11, 2016 work 

injury.” Id. at 84. The WCJ also concluded that, on the date of the injury, 

“Lingenfelter [] and its employees were covered by a policy of workers’ 

compensation insurance issued by Penn National [].” Id. The WCJ also concluded 

that the insurance application submitted by Lingenfelter to Penn National “contains 

no material misrepresentation of fact, such that rescission of the policy is in order.”3 

Id. After providing Penn National the opportunity to file a late brief, the WCJ 

reissued the same interlocutory order, concluding that Claimant was employed by 

Lingenfelter and covered by Penn National. 

On December 18, 2018, the WCJ issued a final order, which 

incorporated his prior interlocutory orders, and in which he made the same findings 

and conclusions as in his prior orders. C.R. at 65-89. Penn National appealed the 

final order to the Board, which affirmed. Penn National then requested a rehearing 

before the Board, and, at the same time, Penn National filed a protective appeal to 

this Court.4 The Board then issued an order remanding the case to the WCJ to review 

and supplement the record with any exhibits missing from the record. C.R. at 123-

26. The WCJ held hearings and supplemented the record, with the parties’ 

agreement, and he reaffirmed his prior final order. Id. at 141-44. 

With the record completed after remand, the Board took no additional 

evidence, considered the merits of Penn National’s appeal, and issued an order and 

3 Penn National did not appeal the rescission issue to this Court, therefore, we will not 

address it further. See Penn National’s brief, p. 19, and its petition for review, filed with this Court. 

4 This Court dismissed Penn National’s protective appeal at 91 C.D. 2020, as inoperative, 

in an Order dated June 30, 2020. 
7

decision dated August 11, 2020, which affirmed the WCJ’s December 18, 2020 final 

order and decision. C.R. at 157-79. The Board reviewed the relevant factors in 

determining the existence of an employer-employee relationship, reviewed the 

testimony presented, and found substantial evidence supported the WCJ’s findings 

as to Claimant’s employer and Penn National’s coverage. Id. Penn National then 

petitioned this Court for review.5 On January 25, 2021, Claimant filed a notice of 

nonparticipation with this Court, indicating that his claim with Penn National had 

been settled by a full compromise and release. 

As we review the questions presented by Penn National, we are mindful 

that, in workers’ compensation cases, “the WCJ is the ultimate fact-finder who must 

determine credibility and evidentiary weight. In this role, the WCJ freely evaluates 

the evidence offered and can accept or reject any witness’[s] testimony, in whole or 

in part, including that of medical witnesses.” Davis v. Workers’ Compensation 

Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000). As 

this Court further stated, “[w]hile this Court can and should consider the competency 

and sufficiency of evidence presented before a WCJ, the WCJ’s assessment of 

witness credibility is not subject to our review on appeal.” Id. Furthermore, in a 

substantial evidence analysis where, as here, both parties presented evidence, “it 

does not matter that there is evidence in the record which supports a factual finding 

contrary to that made by the WCJ, rather, the pertinent inquiry is whether there is 

5 Our scope of review in a workers’ compensation appeal is limited to determining whether 

an error of law was committed, whether constitutional rights were violated, or whether necessary 

findings of fact are supported by substantial evidence. Bloom v. Workmen’s Compensation Appeal 

Board (Keystone Pretzel Bakery), 677 A.2d 1314, 1318 n.4 (Pa. Cmwlth. 1996). Substantial 

evidence means such relevant evidence as a reasonable mind might accept as adequate to support 

a conclusion. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 612 

A.2d 434, 436 (Pa. 1992).
8

any evidence which supports the WCJ’s factual finding.” Hoffmaster v. Workers’ 

Compensation Appeal Board (Senco Products), 721 A.2d 1152, 1155 (Pa. Cmwlth. 

1998). 

Our standard of review for questions regarding the employer-employee 

relationship is as follows: 

The existence of an employer-employee relationship is a 

question of law based upon findings of fact. The existence 

of an employer-employee relationship must be determined 

on a case-by-case basis with reference to four basic 

elements: (1) the right to select the employee; (2) the right 

and power to remove the employee; (3) the power to direct 

the manner of performance; and (4) the potential power to 

direct the manner of performance. 

Sunset Golf Course v. Workmen’s Compensation Appeal Board (Department of 

Public Welfare), 595 A.2d 213, 216 (Pa. Cmwlth. 1991). As our Supreme Court 

explained, the payment of wages may be considered, but is not determinative in 

establishing an employer-employee relationship. JFC Temps, Inc. v. Workmen’s 

Compensation Appeal Board (Lindsay and G&B Packing), 680 A.2d 862, 864 (Pa. 

1996). After analyzing the relevant factors, our Supreme Court explained that 

“[n]otwithstanding the fact that some factors weigh against finding [employer] the 

responsible employer, the right to control the performance of the work is the 

overriding factor.” Id. at 865. 

With these standards in mind, we turn to the WCJ’s critical findings of 

fact from his December 18, 2018 decision, as follows: 

11) Claimant was an employee of Lingenfelter [] at the 

time of his alleged work injury, and was not an employee 

of Tree Monkey. In so finding, I find the testimony of 

Claimant and [Owner] to be credible. Their 

uncontradicted testimony was consistent that Claimant 

was an employee of Lingenfelter, and not an employee of 
9

Tree Monkey, at all relevant times. Their testimony was 

corroborated by the wage records submitted in this matter, 

none of which show that Claimant was employed by, or 

received wages from, Tree Monkey. 

12) At the time of the alleged injury, Lingenfelter had a 

policy of workers’ compensation insurance in effect with 

Penn National [] which covered its employees, including 

Claimant. In so finding, I rely upon the credible testimony 

of [Underwriter], who caused the insurance policy to be 

issued. I also rely in part upon the credible testimony of 

[Broker], who was acting as Penn National []’s Agent in 

completing the insurance application for Lingenfelter. 

[Broker] confirmed that the documents submitted to Penn 

National were accurate to the best of her belief. Finally, I 

rely in part upon the credible testimony of [Underwriting 

Manager] for Penn National []. [Underwriting Manager’s] 

testimony establishes that although the Lingenfelter 

application made have been “coded” improperly, all of the 

information concerning the types of job duties performed 

by employees of Lingenfelter came from its Agent, the 

Jack Bonus Agency [Broker’s agency]. [Underwriting 

Manager declined to state whether Penn National would 

deny coverage for injuries which occur beyond the strict 

definition of an insured’s business as described in an 

application.

 

13) The insurance application submitted to Penn National 

by Lingenfelter contains no material misrepresentations of 

fact, such that rescission of the policy is in order. In so 

finding, I rely upon the testimony of [Broker], Penn 

National’s Agent, who agreed that all the information 

contained in the application was accurate to the best of her 

belief. I also rely upon the testimony of [Owner], who 

credibly testified that she did not prepare the application, 

and was relying upon [Broker’s] expertise with regard to

the codes and classifications set forth on the document. 

Penn National nevertheless argues that the application was 

incomplete, and therefore is misleading, regarding tree 

trimming and pruning. The error, if any, is entirely 

attributable to Penn National. [Underwriter] agreed that 

the application does not say whether Lingenfelter prunes 

trees or does not prune trees. [Underwriter] approved the 
10

application anyway, and caused a policy of insurance 

covering Lingenfelter’s employees, including Claimant, to

be issued.

C.R. at 83-84. 

Penn National presents two questions for our review, whether the WCJ 

and the Board erred in determining that Claimant was Lingenfelter’s employee at 

the time of injury, and whether the WCJ and the Board erred in determining that 

Penn National provided coverage for the work Claimant performed at the time of 

injury. Penn National first argues that the WCJ’s finding of fact 11 did not provide 

findings of fact specific enough to support a conclusion that Claimant was employed 

by Lingenfelter. Penn National argues that because the work performed by Claimant 

on August 11, 2016 was done pursuant to a proposal between the customer and Tree 

Monkey, Claimant wore Tree Monkey shirts on the job, and Claimant received 

training from Owner’s late husband, who was one of Tree Monkey’s owners, the 

WCJ erred in finding Claimant was employed by Lingenfelter. 

Penn National also argues that the work Claimant performed on August 

11, 2016, namely, working on the ground and using a pole saw to cut tree branches, 

was not “landscaping” as defined by Penn National’s workers’ compensation policy. 

Penn National focuses on Lingenfelter’s workers’ compensation insurance 

application to Penn National, where Lingenfelter’s work was categorized under the 

landscaping code 012, when it should have been categorized under the tree pruning 

code 005. R.R. at 97a-103a, 407a-08a. Penn National argues that because Claimant 

was pruning trees when he was injured, and that tree pruning is excluded from 

activities under landscaping code 012, that Penn National should not be responsible 

for Claimant’s injury. Penn National cites to no case law or other authority in 

support of its argument that Claimant should not be covered for injury because 

Lingenfelter’s work was incorrectly coded on its insurance application. 
11

Tree Monkey responds that the WCJ did not err when he found that

Claimant was employed by Lingenfelter, based on the WCJ’s determination that 

both Owner and Claimant testified credibly about the employer-employee 

relationship. Tree Monkey notes that both Owner and Claimant testified that 

Claimant was supervised by, and his work was directed on a day-to-day basis by,

Lingenfelter’s crew leader, Jesse Van Horne. R.R. at 177a, 254a. Tree Monkey 

responds that Claimant’s and Owner’s testimony regarding employment was 

corroborated by Claimant’s payroll records, which show Claimant was paid by 

Lingenfelter, and not Tree Monkey, while he was employed. Tree Monkey responds 

that Owner’s testimony, as credited by the WCJ, shows that Lingenfelter and Tree 

Monkey are two distinct entities, Owner and her late husband were the owners of 

both companies, the two companies sometimes worked separately and sometimes 

worked together on jobs, and Lingenfelter employees always “stayed on the 

ground.” Id. at 241a. 

Tree Monkey further responds that this Court should ignore as 

irrelevant Penn National’s argument that because its agents may have miscoded 

Lingenfelter’s application for workers’ compensation coverage, the alleged error 

should operate to deny coverage for Claimant’s injury. Tree Monkey argues that 

Penn National cannot change Claimant’s employer to Tree Monkey because 

Claimant’s job duties allegedly correlate more to the tree pruning code 005 than to 

the landscaping code 012. Tree Monkey further responds that, contrary to Penn

National’s suggestion, the record contains no evidence to support that Claimant was 

a borrowed employee. 

As to Penn National’s first issue, we discern no error in the WCJ’s 

finding that Claimant was employed by Lingenfelter, and not Tree Monkey, on the 
12

date of injury. The WCJ found Claimant credible when he testified that he was hired 

by Lingenfelter to perform landscaping work, was paid by Lingenfelter, and a 

Lingenfelter employee, Mr. Van Horne, was his day-to-day supervisor who directed 

Claimant’s job performance. The WCJ also found Owner credible when she testified 

that Lingenfelter and Tree Monkey are two separate business entities, Lingenfelter 

hired Claimant, Lingenfelter employee Mr. Van Horne supervised Claimant, and 

Lingenfelter paid Claimant. This testimony, credited by the WCJ, provides 

substantial evidence for the WCJ’s finding that Claimant was employed by 

Lingenfelter. We may not substitute our findings for the WCJ’s findings, and the 

WCJ’s credibility determinations are not subject to our review. Davis, 753 A.2d at 

909. Further, here, where both parties presented evidence regarding the employeremployee relationship, “it does not matter that there is evidence in the record which 

supports a factual finding contrary to that made by the WCJ, rather, the pertinent 

inquiry is whether there is any evidence which supports the WCJ’s factual finding.” 

Hoffmaster, 721 A.2d at 1155.

Further, we discern no legal error in the WCJ’s conclusion of law that 

the “credible testimony and documentary evidence of record” demonstrates that 

Claimant was employed by Lingenfelter, and not Tree Monkey, on the date of injury. 

C.R. at 84. The WCJ concluded that Claimant was employed by Lingenfelter, 

supported by the uncontradicted testimony of Owner and Claimant. The law 

governing employer-employee relationships requires that we determine, based on 

the factual findings, whether Lingenfelter had the right to select Claimant, to remove 

Claimant, to direct “the manner” of Claimant’s performance, and whether 

Lingenfelter had the potential power to direct Claimant’s performance. Sunset Golf 

Course, 595 A.2d at 216. The WCJ did not err in considering Claimant’s payroll 
13

records, which corroborated Claimant’s and Owner’s credited testimony. JFC 

Temps, Inc., 680 A.2d at 864. The WCJ did not err in concluding that Claimant was 

employed by Lingenfelter, when Owner and Claimant testified that Lingenfelter, and 

not Tree Monkey, had the right to control, and did control, Claimant’s work 

performance, which, is “the overriding factor.” Id. at 865.

As to Penn National’s second issue, we discern no error in the WCJ’s 

finding and conclusion that Penn National provided coverage for the work Claimant 

performed at the time of injury. There is no dispute that Lingenfelter applied for, 

and Penn National issued, a workers’ compensation policy to Lingenfelter, which 

was in effect on August 11, 2016, the date of injury. R.R. at 97a-134a. The WCJ 

found Broker’s testimony credible, when she confirmed that the application 

submitted to Penn National was “accurate to the best of her belief.” C.R. at 83. The 

WCJ also credited Underwriter’s testimony, when she testified that she caused the 

policy to be issued. The WCJ also credited Underwriter’s Manager’s testimony, 

when he testified that, although Lingenfelter’s application may have been coded 

improperly, all information concerning Lingenfelter’s work came from its Broker, 

who served as Penn National’s agent, and not from Owner. Penn National provides

no legal support for its position that an incorrect code attributed to Lingenfelter’s 

work should provide grounds for denial of coverage, when the application contained 

no material misrepresentation of fact. We discern no error in the WCJ’s finding that 

the coding error, “if any, is entirely attributable to Penn National.” C.R. at 84. The 

policy issued by Penn National provided for premium adjustments if Lingenfelter’s 

work was “not properly described” by the code currently assigned to it. R.R. at 111a. 

However, Penn National’s alleged coding error does not provide a basis for it to deny 
14

coverage to Lingenfelter for Claimant’s injury, when Lingenfelter’s application 

contained no material misrepresentations.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Penn National Security :

Insurance Company, :

:

Petitioner :

:

v. : No. 839 C.D. 2020

: 

Darrel Henline (Workers’ :

Compensation Appeal Board), :

:

Respondent :

O R D E R

AND NOW, this 11th day of April, 2022, the order of the Workers’ 

Compensation Appeal Board dated August 11, 2020, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge