IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Home Not Alone Caregiver Services, :

Inc. and Guarantee Insurance Company, :

Petitioners :

:

v. : No. 852 C.D. 2015

: Submitted: October 16, 2015

Workers’ Compensation Appeal :

Board (Galore), :

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: December 16, 2015 

Petitioners Home Not Alone Caregiver Services, Inc. (HNA) and 

Guarantee Insurance Company petition for review of an order of the Workers’ 

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

Workers’ Compensation Judge (WCJ), denying the workers’ compensation claim 

petition filed by Linda Galore (Claimant). We affirm the Board’s order.

On October 24, 2012, Claimant filed a claim petition, alleging that she 

worked for HNA as a caregiver and that, on October 2, 2012, she sustained a 

disabling injury in the course of her employment. HNA, through its insurer,

denied the claim petition, averring that no employment relationship existed 

between HNA and Claimant. HNA asserted that Claimant was an independent 

contractor.
2

The WCJ bifurcated the proceedings in order to address first HNA’s 

claim that no employment relationship existed. During the WCJ’s hearings, 

Claimant offered her own testimony regarding the work she performed as a 

caregiver and the testimony of Amy Lutz, HNA’s former Staff Coordinator. HNA

offered the testimony of Kelly Bell, who works for HNA as a staff 

supervisor/coordinator and Khaled Daoud, M.D., HNA’s Director and co-owner.

The WCJ did not find credible Claimant’s testimony or the testimony 

of her witness, Ms. Lutz. The WCJ found the testimony of Ms. Bell and 

Dr. Daoud credible. Ms. Bell testified that HNA provides caregiver services “like 

personal care . . . light housekeeping, stuff like that.” (Reproduced Record (R.R.) 

at 19a.) Ms. Bell testified that HNA conducts interviews of its prospective 

caregivers. (R.R. at 20a.) The interview involves filling out an application, 

copying of a caregiver’s identification, criminal background checks, and 

“screening” for the purpose of “try[ing] to make sure they seem like an appropriate 

person to send out to the participant’s home.” Id. Ms. Bell testified that HNA

offers work to particular caregivers if it feels the client and the caregiver are a good 

match. (R.R. at 21a.) “We tell them what the hours are that the client might be 

needing . . . what their needs are.” Id. Ms. Bell testified regarding a document

offered into evidence, which Claimant signed, and which was characterized as an 

independent contractor agreement. Id. Ms. Bell explained that the agreement 

included information advising caregivers that HNA does not withhold taxes from 

caregivers’ pay checks and does not provide any benefits such as insurance. 

(R.R. at 22a.)

Ms. Bell described the manner in which HNA made assignments to its 

caregivers. “We would call them over the phone, tell them the service order that 
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we received from the state from a particular client . . . . We would just go over 

what their needs are, what the hours that they are requesting [are] and we would 

just say are you interested in this.”1 (R.R. at 23a-24a.) Ms. Bell testified that if 

Claimant was not interested in a particular assignment, HNA would “see if there 

was another one that she might be interested in.” (R.R. at 24a.) HNA paid 

Claimant approximately ten dollars per hour by bi-weekly check. 

(R.R. at 24a, 27a.)

Ms. Bell testified that clients determined the caregivers’ schedules. 

HNA would get such requests and offer its caregivers the opportunity. 

(R.R. at 28a.) As to the particular work a caregiver performed, Ms. Bell testified 

that “[t]he determination [of the duties to perform] would come from the client. 

We just tell the caregivers what their needs might be, what things they might be 

needing to be provided, but the client [himself or herself] tells them on a daily 

basis what they would like them to do.” (R.R. at 28a.) Ms. Bell testified that a 

client may alter an initial request for certain services by a caregiver “as long as [the 

new work] fell within like what a caregiver is supposed to be doing in general.” 

Id. Ms. Bell testified that a client and caregiver may also alter the initial time 

scheduled “as long as the caregiver agrees on it and they work that out.” (R.R. at 

28a-29a.)

Ms. Bell explained that HNA provides time sheets to its caregivers to 

complete and turn in to HNA for the purpose of payment. (R.R. at 29a.) Ms. Bell 

testified regarding notes at the bottom of one of Claimant’s time sheets, indicating 

 

1 Ms. Bell testified that the referrals HNA received were from agencies such as Three 

Rivers Center for Independent Living, the United Cerebral Palsy, and “some mentally challenged 

clients, that would be ODP.” (R.R. at 24a-25a.)
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that she had called another caregiver on a particular date to work Claimant’s hours 

because of an illness. (R.R. at 31a.) Ms. Bell testified that the purpose of the 

notes was to “notify [HNA] if something went on.” (R.R. at 32a.) She indicated 

that a caregiver does not have to notify HNA first before contacting another 

caregiver working for HNA to cover a shift. Id. Ms. Bell testified that HNA does 

not provide any training to its caregivers and does not provide materials needed to 

perform the duties of the job. (R.R. at 35a.) Ms. Bell testified that caregivers use 

their own cars to take clients to appointments, and that either the client or the 

caregiver might make such appointments. (R.R. at 35a-36a.)

On cross-examination, Ms. Bell responded to questions concerning 

the manner by which HNA would address performance issues relating to its 

caregivers. Ms. Bell testified that she would dismiss caregivers if they were 

“[b]eing neglectful with the client, just not showing up to work, leaving them 

alone, stuff like that.” (R.R. at 39a.) Ms. Bell testified that the timesheets include 

a checklist with duties that a client wants a caregiver to perform and the caregiver

checks the item to indicate that the job was performed. (R.R. at 40a.) If a 

caregiver calls off work, HNA requires the worker to submit a doctor’s note. 

(R.R. at 41a.) If something “goes wrong” during a work period, caregivers are 

required to report an incident to HNA in order for HNA to provide the information 

to a state-operated “incident management system.” Id. Ms. Bell agreed that its 

caregivers further HNA’s ability to participate in the services it offers and the 

business it conducts. (R.R. at 46a.)

Dr. Daoud also testified on behalf of HNA. Dr. Daoud testified 

regarding a “Home Caregiver Services Policy Procedure Manual” that he 

co-authored. Dr. Daoud testified that the manual did not include caregivers within 
5

the described chain of command. (R.R. at 260a.) In response to a question on 

cross-examination regarding the purpose of the manual, Dr. Daoud agreed that the 

chain of command was a means of “encouraging caregivers to speak to secretaries, 

staff trainers, supervisors, staff coordinators, assistant directors and service 

directors before they spoke with [him].” (R.R. at 263a.) Dr. Daoud testified that 

caregivers request to be removed from particular assignments “all the time,” but he 

denied that such caregivers experience negative consequences for making such 

requests. (R.R. at 262a.)

The WCJ found Claimant’s testimony credible only to the extent that 

it supported HNA’s position that HNA was not Claimant’s employer. The key 

factual finding the WCJ made regarding the relationship between HNA and 

Claimant provides:

In summary, I find as fact that HNA and [C]laimant had 

an independent contractor relationship. HNA did not 

have the right to control [C]laimant’s work activities, did 

not provide [C]laimant with the tools/items she needed to 

perform her job, and did not supervise her in any manner 

or set her work hours, and did not train [C]laimant. 

Furthermore, [C]laimant was able to turn down and 

terminate clients without retribution, and work for other 

employers. She was able to have other caregivers 

substitute for her. HNA did not control [C]laimant while 

performing services in the clients’ homes. Although not 

dispositive of the issue, [C]laimant signed a contract with 

HNA that identifies her as an independent contractor, and 

[C]laimant was aware of the provisions and 

consequences of the contract. The claim petition must 

therefore be dismissed.

(Finding of Fact no. 6(E).)

Claimant appealed the WCJ’s decision to the Board. The Board 

concluded that, notwithstanding the WCJ’s determination that Claimant’s and 
6

Ms. Lutz’s testimony is not credible, the credited testimony of Ms. Bell and 

Dr. Daoud is competent and sufficient to support a conclusion that HNA was 

Claimant’s employer and that the WCJ erred as a matter of law in concluding that 

Claimant was an independent contractor. The Board relied on the following 

factors: (1) HNA hired Claimant directly, through an interview process which 

included a background check; (2) HNA gave Claimant specific caregiver 

assignments, which, at least initially, Claimant did not choose; (3) Claimant was 

required to keep track of her hours and fill out a timesheet that she provided to 

HNA; (4) HNA required Claimant to complete incident reports and submit those 

reports to HNA; (5) HNA had standards that Claimant was required to satisfy or be 

subjected to termination; (6) HNA required Claimant to call in if sick and provide 

a doctor’s note for such absences; and (7) HNA would provide fill-in services 

when Claimant called in sick. Based upon these factors, the Board concluded that 

HNA exercised “control over the manner of Claimant’s work.” (Board Decision 

at 7.)

The Board also noted the following elements: (1) Claimant “was not 

just responsible for results but was a regular employee that provided consistent 

care for clients that were assigned by [HNA];” (2) Claimant’s position “required 

little skill and was basically light housekeeping for clients;” (3) HNA “did not . . . 

require any specific certification other than a high school degree;” (4) HNA did not 

pay on a per-job basis, but rather by bi-weekly pay checks; (5) HNA’s “entire 

business revolved around providing caregivers to clients and caregivers were not 

ancillary to [HNA’s] main business but were, in fact, [its] main business; and 

(6) HNA “retained the right to terminate caregivers.” (Board Decision at 7.)
7

HNA appealed from the Board’s order,2raising the sole issue of 

whether the Board erred in reversing the WCJ’s order, thereby concluding that 

Claimant was an employee of HNA. Part of a claimant’s burden in a claim petition 

includes a demonstration that an employment relationship exists. Universal 

Am-Can v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 328, 330 (Pa. 2000). 

The question of whether an employment relationship exists is one of law that must 

be resolved based upon the particular facts in the case. Am. Rd. Lines v. Workers’ 

Comp. Appeal Bd. (Royal), 39 A.3d 603, 610-11 (Pa. Cmwlth. 2012).

There are many factors a WCJ (as well as the Board and this Court) 

may consider when attempting to determine whether a claimant is an independent 

contractor or an employee: (1) control over the manner [by which] the work is 

done; (2) responsibility for result only; (3) the nature of the work or occupation; 

(4) skill required for performance; (5) whether one is engaged in a distinct 

occupation or business; (6) which party supplied the tools or materials; (7) whether 

payment is by the job or by the time; (8) whether work is part of a regular business 

of the employer; and (9) whether a right exists to terminate the relationship. 

Universal Am-Can, 762 A.2d at 333.

There is some overlap between these factors. For example, in Moon 

Area School District v. Garzony, 560 A.2d 1361, 1367 (Pa. 1989), our Supreme 

Court opined that “[i]n an employer-employee relationship, the employer controls 

the result of the work and has the right to direct the way in which it shall be done, 

whereas in an owner-independent contractor relationship, the independent 

 

2 Our review in this matter is limited to considering whether the Board erred as a matter 

of law. 2 Pa. C.S. § 704.
8

contractor has exclusive control over the manner of performing it, being 

responsible only for the result.” Garzony, 560 A.2d at 1367-68 (quoting Feller v. 

New Amsterdam Cas. Co., 70 A.2d 299, 300 (Pa. 1950)). As we have often 

repeated, no one factor “is in and of itself controlling.” Southland Cable Co. v. 

Workmen’s Comp. Appeal Bd. (Emmett), 598 A.2d 329, 331 (Pa. Cmwlth. 1991). 

Facts tending to show that a worker or putative employer controls the manner by 

which a worker performs tasks is often the most persuasive indication of whether 

an employer-employee relationship exists. Id. In Southland, the putative employer 

provided the claimant (a cable installer) with a daily list of addresses where he was 

expected to install cable; the putative employer inspected the claimant’s work; 

employer did not provide tools but did supply materials; employer provided signs 

with the employer’s name and address; employer provided the claimant with an 

identification badge; and employer provided the claimant with traffic control 

assistance when necessary. Id. Additionally, however, a key element this Court 

also considered in Southland was the fact that the claimant’s work for the putative 

employer was essential to the employer’s business. Id. We opined that the relative 

importance of a worker’s job to a putative employer’s business was related to the 

question of whether the work at issue is part of the regular business of the putative 

employer. Id. We held that the factors that the WCJ identified in his decision, 

which we summarize above, were more than adequate to support his determination 

that an employment relationship existed between the claimant and the cable 

company. Id.

In this matter, the facts the WCJ developed based only on the 

testimony of HNA’s witnesses confirm that it hired Claimant and had the power to 

terminate her services. There was no testimony indicating that HNA would simply 
9

stop assigning work to Claimant if so inclined. Claimant had a duty in certain 

circumstances to report incidents to HNA, thus suggesting that HNA did control 

some aspects of Claimant’s work responsibilities. HNA developed certain 

standards with which Claimant was required to comply in order to avoid being 

terminated. If Claimant called in sick, HNA required her to supply a doctor’s note. 

Claimant’s job required no special certification or skills. HNA paid Claimant 

based upon the number of hours she worked rather than per job. Significantly, as 

the Board noted, HNA’s entire business venture is based upon its supply of 

caregivers to its clients. Thus, it is quite clear that Claimant’s work was critical to 

the sole purpose of HNA’s business.

Accordingly, we conclude that the Board did not err in concluding 

that HNA was Claimant’s employer, and, therefore, we affirm the Board’s order.

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Home Not Alone Caregiver Services, :

Inc. and Guarantee Insurance Company, :

Petitioners :

:

v. : No. 852 C.D. 2015

:

Workers’ Compensation Appeal :

Board (Galore), :

Respondent :

O R D E R

AND NOW, this 16th day of December, 2015, the order of the 

Workers’ Compensation Appeal Board is AFFIRMED.

 

 P. KEVIN BROBSON, Judge