IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Falco and Sons, Inc. and Donegal :

Mutual Insurance Company, :

Petitioners :

:

v. : No. 544 C.D. 2015

: Submitted: October 2, 2015

Workers’ Compensation Appeal :

Board (O’Toole), :

Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: November 18, 2015 

Petitioners Falco and Sons, Inc., and Donegal Mutual Insurance 

Company (collectively Employer) petition for review of an order of the Workers’ 

Compensation Appeal Board (Board). The Board affirmed a decision of a 

Workers’ Compensation Judge (WCJ) that (1) granted the claim petition filed by 

Chris O’Toole (Claimant); and (2) denied joinder petitions filed by Employer 

seeking to join Michael Falco and/or the Uninsured Employer Guarantee Fund

(Fund). We affirm the Board’s order. 

We glean the following facts from the WCJ’s findings. Employer 

hired Claimant in August 2011 to do carpentry work and paid him $80 per day in 

cash. Butch and Michael Falco are the joint owners of Employer. Butch Falco, 

however, assigns work to employees. On November 19, 2011, Michael Falco had 

accepted a side job, i.e., not one performed for Employer, to install a window at the 
2

home of Mark Leo. In 2009, Employer installed a window for Mr. Leo and 

attempted to fix a problem with the window. After Claimant and another person 

working for Michael Falco completed the side job, Mr. Leo asked Michael Falco if 

he could fix the problem with the window that Employer had originally installed. 

Michael Falco agreed to attempt the fix, believing that it could be done without 

difficulty. During the process, Claimant sustained an injury that almost resulted in 

the amputation of his right hand.

Claimant filed a claim petition seeking specific loss benefits and 

reasonable medical expenses. Employer responded to the claim petition and also 

filed joinder petitions seeking to add Michael Falco and the Fund as additional 

defendants. Employer’s primary objection and reason for filing the joinder 

petitions was that it believed Claimant was not in the course of his employment 

with Employer at the time he injured his hand, but rather he was working for 

Michael Falco on a side job.

In support of his claim petition, and relevant to our review, Claimant 

offered his own testimony, the testimony of Michael Falco, and the testimony of 

Mr. Leo. Claimant testified that on November 19, 2011, he was working on 

windows at Mr. Leo’s house and that “the last thing we did that day was we 

changed a window out that Butch [Falco] put in about six months before that. The 

guy didn’t like how it functioned and opened, closed.” (Reproduced Record (R.R.) 

at 90a.)

Michael Falco testified that between November 7 and 

November 18, 2011, he worked with Claimant and another of Employer’s 

employees performing work for Employer. (R.R. at 296a-97a.) Michael Falco 

testified that he supervised the work of Claimant and the other employee and 
3

directed them as to the hours to be worked. (R.R. at 297a-99a.) Michael Falco 

testified that he told Claimant that the job they were going to perform on 

November 19, 2011, was a “side job,” but he also testified that he had only done 

one other “side job” within the previous six months, involving his son’s 

mother-in-law. (R.R. at 321a, 322a.) He testified that he had no business presence 

or identity other than the one associated with Employer. (R.R. at 322a.)

Michael Falco testified that he met Mr. Leo in June or July 2009, 

when Employer installed the window at Mr. Leo’s house. (R.R. at 323a.) He 

testified that on November 19, 2011, while performing the side job, Mr. Leo asked 

him to look at the window Employer installed in 2009. Michael Falco told 

Mr. Leo that, if he could not fix the window within an hour or two, “we’ll call my 

brother and get out here and open up the wall and find out exactly what’s 

wrong . . . I said we will figure it out . . . and we’ll get it on [Employer’s] 

schedule.” (R.R. at 336a-37a; 252a.) Michael Falco described the November 2011 

work performed on the window Employer previously installed as follows:

[It was] basically warranty work. We—basically are—

we are proud of our workmanship and if something is not 

right and a customer calls, we usually go back and fix it.

(R.R. at 338a.) Michael Falco testified that he did not charge Mr. Leo for the 

repair work on the window that Employer had installed. (R.R. at 252a, 253a.) 

Michael Falco testified that his brother Butch Falco generally made arrangements

for “warranty” work after having communication with a customer, but that in this 

instance, he was at the customer’s house doing a side job when the customer asked 

him to take a look at the window. (R.R. at 253a.) Michael Falco testified that he 

had done “warranty” work for Employer before the November 19, 2011 incident, 

and that such work occurs approximately three-to-five times per year. (R.R. at 
4

254a.) He testified that “[plumbing jobs are] usually the number one nuisance call 

back. It’s mostly plumbing issues . . . and we usually go back and take care of it.” 

(Id.) Michael Falco testified that, to his knowledge, Employer did not charge for 

those “warranty” repairs. (Id.)

Mr. Leo testified that, before November 19, 2011, he had 

communicated with Butch Falco (majority owner of Employer) and Michael Falco 

regarding the problem with the window Employer installed. (R.R. at 145a.) Butch 

Falco testified that he did not represent to Mr. Leo that Employer warranted the 

window it installed in 2009. (R.R. at 198a.) He testified that when the window 

was installed it was a tight fit and that Employer took the window out twice to 

attempt to fix that problem. (R.R. at 199a.) Butch Falco also testified that “that 

was the best we could do. And Mark Leo was fine with that when we left.” (Id.) 

Butch Falco testified that he knew Michael Falco was going to work at Mr. Leo’s 

house on November 19, 2011, but he did not know what Michael Falco was going 

to do at Mr. Leo’s house. (R.R. at 200a-01a.) Butch Falco testified that he alone 

has the authority to approve “warranty” work for Employer. (R.R. at 205a.) He 

testified that if problems arise during the course of a project, employees call him 

first. (R.R. at 212a.) Butch Falco testified that Employer does not provide a 

written warranty, but that, “to some extent,” Employer honors the work that it 

does. (R.R. at 213a.)

The WCJ found credible the testimony of Claimant, Michael Falco, 

and Mr. Leo, but the testimony of Butch Falco only credible in part. (Finding of 

Fact (F.F.) nos. 13-16.) With regard to Mr. Leo’s credited testimony, the WCJ 

found that Mr. Leo asked Michael Falco to look at the window Employer installed 
5

in 2009 and that Claimant was injured when he was fixing the window. (F.F.

no. 13.) With regard to Michael Falco’s testimony, the WCJ found that

Mr. Leo was a customer of [Employer] which is why he 

repaired the window that had been installed in 2009, and 

he performed warranty work for Employer between three 

and five times per year for which there was no charge. 

His testimony is credible that he considered working on 

the 2009 window as warranty work.

(F.F. no. 15.) As to Butch Falco’s testimony, the WCJ made the following finding:

The testimony of Harry “Butch” Falco is credible 

in part. His testimony is credible regarding the nature of 

the business of [Employer]. However, the testimony of 

Mr. Leo is accepted over the testimony of Mr. [Butch] 

Falco with regard to Mr. Leo calling about the window 

prior to November 19, 2011. The testimony of Michael 

Falco is accepted over the testimony of Butch Falco 

regarding [Employer] performing warranty work. Butch 

Falco’s testimony is credible that Claimant was an 

employee of [Employer’s] after being hired in August 

2011.

(F.F. no. 16.) Based upon these pertinent findings, the WCJ concluded that 

Claimant sustained his claim against Employer for his injured right hand, and the 

WCJ awarded 355 weeks of specific loss benefits. The WCJ, having concluded 

that Claimant was injured in the course of employment with Employer, denied and 

dismissed Employer’s joinder petitions.

Employer appealed the WCJ’s decision to the Board, contending that 

the WCJ erred in finding that Claimant was injured while performing work for 

Employer. The Board concluded that substantial evidence supported the WCJ’s 

factual findings, because the evidence established that (1) Claimant was 

performing work to correct problems with Employer’s previous installation of a 
6

window; and (2) Employer performed this type of repair as a courtesy to its 

customers. Thus, the Board affirmed the WCJ’s decision.

Employer appealed from the Board’s order, raising the questions of 

whether: (1) the WCJ’s finding that the work resulting in Claimant’s injury was 

performed as part of a “warranty” constitutes a legal fiction that is not supported 

by substantial evidence; and (2) the WCJ erred by denying Employer’s joinder 

petition seeking to place the Fund in the position of Employer in this matter.

In a claim petition, a claimant bears the burden of proving every 

element necessary to support an award of workers’ compensation benefits. Wetzel 

v. Workers’ Comp. Appeal Bd. (Parkway Serv. Station), 92 A.3d 130, 135-36 

(Pa. Cmwlth.), appeal denied, 105 A.3d 739 (Pa. 2014). In order to satisfy that 

burden, a claimant must demonstrate that he sustained an injury in the course of 

employment and that the injury is causally related to his employment. 

Section 301(c)(1) of the Workers’ Compensation Act (Act).1 When an alleged 

injury occurs off an employer’s premises, it may still be compensable under the 

Act if a claimant shows that he was engaged in the furtherance of the employer’s 

business or affairs. U.S. Airways v. Workers’ Comp. Appeal Bd. (Dixon), 764 A.2d 

635, 640 (Pa. Cmwlth. 2000), appeal denied, 788 A.2d 382 (Pa. 2001).

In this case, Employer contends that the WCJ erred in finding that 

Claimant was furthering its business. Employer argues that the evidence actually

shows that Claimant was working on a side job for Michael Falco when he was 

injured. Employer claims that the record does not support the WCJ’s 

characterization of the work Claimant was performing as “warranty” work. 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
7

Employer takes the view that “warranty” work is work that is only performed 

pursuant to a formal contract or agreement between a business and a customer, and 

thus, because there is no evidence of a formal agreement, the WCJ’s factual 

finding is not supported by substantial evidence.

Although the WCJ used the term “warranty” to describe the nature of 

the work Claimant was performing when he was injured, we do not construe the 

use of this term (nor did the Board) as meaning a formal warranty. Rather, the 

evidence indicates that Employer had installed a window for a customer that never 

worked properly. When Employer’s partial owner, Michael Falco, was performing 

side work on his own behalf for the owner, the owner, Mr. Leo, asked him to look 

at the window Employer had installed in 2009. Mr. Leo testified, credibly, that he 

had contacted Employer several times about the problem with the window. 

Michael Falco had previously done work for other customers to fix problems. 

(R.R. at 254a.) Butch Falco’s testimony supports the determination that although 

Employer does not provide written or formal agreements guaranteeing its work, it 

will revisit previously performed work in order to ensure customer satisfaction. 

Employer “honors its work.” (R.R. at 213a.) Although this type of work is not 

formal “warranty” work, it is work that Employer apparently does in order to 

preserve its good reputation. Thus, it is work that furthers Employer’s business or 

affairs. Consequently, we find no error in the WCJ’s determination that Claimant 

was injured in the course of his employment with Employer.

Employer refers the Court to instances in the record where testimony 

could support different findings of fact, but as the Board noted and as this Court 

has often observed, the WCJ is the sole arbiter of credibility determinations. 

Womack v. Workers’ Comp. Appeal Bd. (The Sch. Dist. of 
8

Philadelphia), 83 A.3d 1139, 1154 (Pa. Cmwlth.), appeal denied, 94 A.3d 1011 

(Pa. 2014). We may only disturb a WCJ’s factual findings if they are not 

supported by substantial evidence. Bradley v. Workers’ Comp. Appeal Bd. (Cnty. 

of Delaware), 919 A.2d 293, 294 (Pa. Cmwlth. 2006). As we have discussed 

above, the WCJ’s factual findings are supported by credible and substantively 

sufficient evidence of record.

Accordingly, we affirm the Board’s order.2

 

 P. KEVIN BROBSON, Judge

 

2 Because we conclude that the WCJ did not err in determining that Claimant was in the 

course of employment with Employer when he injured his hand, we need not address Employer’s 

argument that the WCJ erred in denying Employer’s joinder petitions seeking to add Michael 

Falco and/or the Fund as a defendant.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Falco and Sons, Inc. and Donegal :

Mutual Insurance Company, :

Petitioners :

:

v. : No. 544 C.D. 2015

:

Workers’ Compensation Appeal :

Board (O’Toole), :

Respondent :

O R D E R

AND NOW, this 18th day of November, 2015, the order of the 

Workers’ Compensation Appeal Board is AFFIRMED.

 

 P. KEVIN BROBSON, Judge