IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Always Moving, LLC and :

State Workers' Insurance Fund :

Petitioners :

:

v. : No. 1183 C.D. 2016

: Submitted: January 20, 2017

Workers' Compensation Appeal :

Board (Sutton), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: April 20, 2017

Always Moving, LLC (Company) and its workers’ compensation 

insurer, State Workers’ Insurance Fund (collectively, Company) petition for review 

of an order of the Workers' Compensation Appeal Board (Board) reversing an 

order of a Workers' Compensation Judge (WCJ) denying Darieal Sutton’s 

(Claimant) claim petition on the basis that he was an independent contractor rather 

than an employee. The Board ultimately determined that at the time Claimant 

sustained a right foot injury, while moving voting machines in November 2011, he 

was an employee acting within the course of his employment with Company. 

Company contends the Board erred in determining Claimant was an employee 

rather than an independent contractor at the time of his injury. In particular, 

Company argues the Board exceeded its limits of review by selectively 

disregarding the WCJ’s findings of fact. For the reasons that follow, we affirm. 
2

I. Background

The WCJ found the following pertinent facts. Company is a generic 

moving company that performs commercial and residential moves. Ninety percent 

of Company’s work is commercial moving performed for Graebel Van Lines. 

When performing work for Graebel, Company is a subcontractor. Company also 

performs evictions and relocations for the Philadelphia Housing Authority.

Company is owned by Ernie Cimadamore (Owner) and his wife. 

When Company has work, Owner will call a number of workers whom he 

considers subcontractors. To that end, Owner asked the workers to incorporate on 

their own because he could not afford workers' compensation insurance. If 

Graebel Van Lines booked the work, the workers wore Graebel uniforms. If 

Company booked the work, the workers wore Company uniforms. Owner is not an 

on-site supervisor. Further, Owner does not appoint supervisors or otherwise tell 

the workers what to do or how to practice their trade.

Owner also testified he did not interview Claimant prior to the time he 

began working. Rather, Claimant’s brother, Ephram Ingram (Ingram), brought 

him to the job and Claimant began working. Claimant worked approximately 30 

hours per week for Company, and he earned $15.00 per hour.

In addition to its usual moving jobs, Company had an agreement with 

the City of Philadelphia (City) to move voting machines to and from the City’s 

polling stations. The voting machine job would usually last for approximately 

three weeks and involved 685 to 700 machines. They would be delivered in time 
3

for the elections and then returned afterward to the City warehouse. Company 

usually rented four trucks for the voting machine job, with a driver and one helper 

per truck.

Owner entered into an agreement with Claimant, a helper, wherein 

Owner would pay Claimant approximately $5,000 for each voting machine job. 

Claimant performed this duty on previous occasions. Company did not require 

Claimant to wear any type of uniform while performing the voting machine work. 

Owner was not involved in the day-to-day work of the voting machine 

job. However, he would check in every couple of days to make sure the machines 

were okay. Owner did not go out on the trucks and did not direct Claimant on how 

to move the voting machines.

 On November 3, 2011, while on the voting machine job, Claimant 

injured his right ankle when he stepped down off a truck onto an unpaved area

abutting the pavement. He heard a loud snap and felt immediate pain. Thereafter, 

Claimant advised Owner that he needed to get someone to that location to finish 

the day’s schedule.

Byron Richardson, a coworker of Claimant, and driver of the truck on 

which Claimant worked, drove Claimant to Temple University Hospital where he 

underwent X-rays and received an Ace bandage and crutches. Claimant did not 

return to work.
4

On November 9, 2011, six days after the injury, Claimant began 

treating with Dr. Labbad, who put Claimant in a cast. Dr. Labbad also ordered Xrays, and an MRI, prescription medication and crutches. Claimant continued to see 

Dr. Labbad once a week.

In December 2011, Claimant filed a claim petition alleging that, on 

November 3, 2011, he sustained work injuries in the nature of a “[s]tress fracture 

of the right foot ... [rule/out] torn ligaments in right foot.” Reproduced Record 

(R.R.) at 1a. Company filed an answer denying Claimant’s material allegations, 

including the allegation that Claimant was an employee at the time of the injury.

Following several hearings at which the parties submitted evidence, 

including medical evidence, the WCJ found Claimant established he sustained a 

work injury to his right foot and ankle when he stepped off a truck while 

performing the voting machine job. To that end, the WCJ accepted the testimony 

of Claimant’s primary treating physician, Dr. Michael R. McCoy, M.D. 

(Claimant’s Physician), who is board-certified in family medicine. In particular, 

the WCJ found:

3. [Claimant’s Physician] examined Claimant and began 

treating him. He recommended physical therapy and 

diagnosed, as of his [June 2012] deposition testimony, 

right foot strain and sprain, right foot stress fracture with 

right sesamoid fragmentation, right Lisfranc injury and a 

right ankle strain and sprain with AFTL tear. 

[Claimant’s Physician] attributed these diagnoses to the 

November 3, 2011 work injury. He advised Claimant 

could not return to his pre-injury position. He did not 

believe Claimant retains the capacity for work of any 

kind as of his testimony.
5

* * * * 

9. Based upon a review of the evidentiary record as a 

whole, this Judge finds Claimant’s testimony credible to 

establish he was injured as he described on the date he 

described moving voting machines for [Company]. This 

Judge finds Claimant’s testimony also credible to 

establish he cannot work as a result of his injury. The 

medical evidence in this case confirms Claimant’s 

testimony, and the testimony of [Owner] does not 

disagree with Claimant’s testimony in any factually 

material way. This Judge accepts the testimony of 

Owner as credible.

WCJ’s Op., 4/1/13, Finding of Fact (F.F.) Nos. 3, 9 (emphasis added).

Nonetheless, the WCJ concluded Claimant’s status was that of an

independent contractor rather than an employee at the time he sustained his work 

injuries. In Conclusion of Law No. 1, the WCJ stated:

Based upon the factual evidence presented, this Judge 

concludes Claimant was an independent contractor when 

his injury occurred. Claimant was paid by the job, not by 

the hour, Claimant arranged his duties with the entity 

directing him to move the voting boxes rather than 

[Company], and Claimant had the option of refusing 

work for [Company], which he had done. Not persuasive 

to this Judge is [Owner’s] assertion that he advised his 

workers to incorporate so he could save money by not 

paying for workers' compensation insurance. Such an 

arrangement is not relevant to a determination of whether 

the parties are involved in an employer-employee 

relationship. The most important factor in determining 

whether one is an employee of an entity is whether the 

purported employer has the ability to exercise control 

over the manner in which the purported employee 

performs the job duties. The only real evidence on this 

issue was during the deposition of [Owner], he was asked 

whether, hypothetically, if the City called to complain 
6

about the way the job was being performed, would he 

intervene, and he responded affirmatively. There was no 

indication as to the nature of any possible intervention. 

Without more, this Judge cannot conclude that Claimant 

established that Owner had the ability to control the 

manner in which he performed the task of moving the 

voting booths. Claimant’s Claim Petition must be denied 

and dismissed.

WCJ’s Op., Conclusion of Law (C.L.) No. 1 (emphasis added).

Consequently, the WCJ circulated a decision denying Claimant’s 

claim petition on the basis that he was an independent contractor, not an employee. 

Claimant appealed.

On appeal, the Board observed that Claimant bore the burden of 

proving all the elements necessary to support an award. Inglis House v. 

Workmen’s Comp. Appeal Bd. (Reedy), 634 A.2d 592 (Pa. 1993). This included 

establishing the existence of an employer-employee relationship. Universal AmCan, Ltd. v. Workers' Comp. Appeal Bd. (Minteer), 762 A.2d 328 (Pa. 2000). 

Although there is no bright-line rule to determine the existence of an employment 

relationship, certain established guidelines and various factors must be taken into 

consideration. Hammermill Paper Co. v. Rust Eng’g Co., 243 A.2d 389 (Pa. 

1968). These factors include: control of the manner in which the work is done; 

whether the individual is responsible for results only; the terms of the agreement 

between the parties; the nature of the work or occupation; the skill required for 

performance; whether the individual is engaged in a distinct occupation or 

business; which party supplied the tools; whether payment is by time or by the job; 

whether the work is part of the regular business of the putative employer; and,
7

whether the putative employer has the right to terminate the relationship at any 

time. Id.

In determining whether an individual is an employee or an 

independent contractor, the primary factor to be considered is whether the putative 

employer has the right to control either the work to be done or the manner in which 

it is performed. Universal Am-Can. It is the existence of the right to control that is 

most significant, regardless of whether that control is actually exercised. Id. 

In reviewing the evidence, the Board noted the existence of 

conflicting testimony from Owner and Claimant over the issue of whether someone 

supervised Claimant while he performed his duties. See Bd. Op., 9/16/14, at 6. 

Claimant testified that while on a Company job where there were multiple 

employees, Ingram would give the employees instructions regarding performance 

of the job. See Notes of Testimony (N.T.), 2/6/12, at 16; R.R. at 87a. If they were 

moving an office, Ingram would give them directions as to what floor to start and 

what items to move. Id. If there were any changes that needed to be made, Ingram 

would direct them. Id.

Conversely, Owner testified that even if he had 20 guys on a job, he 

would not designate anyone to be in charge. See WCJ Op., 4/1/13, F.F. No. 2(s); 

Dep. of Ernie Cimadamore, 6/19/12 (Cimadamore Dep.), at 26; R.R. at 157a.

The Board noted the WCJ found the testimony of both Owner and 

Claimant credible. Recognizing that the primary factor in determining employee 
8

status is whether the employer has the right to control the work and the manner in 

which it is to be performed, the Board remanded to the WCJ for a determination as 

to whether Company had the right, even if not exercised, to control the work and 

the manner in which it was to be performed. Bd. Op., 9/16/14 (First Bd. Op.), at 6.

On remand, the WCJ made the following dispositive findings:

5. With respect to the duties Claimant was performing 

when his injury occurred, moving the voting booths, this 

Judge determined the testimony of Claimant and [Owner] 

did not conflict in any material manner. A thorough 

review of the testimony of these two witnesses reveals 

the discrepancies noted by the Board referable to whether 

there was supervision during the performance of a job 

pertains to work Claimant was doing for [Company] on 

an hourly basis (Claimant earned $15.00 per hour on 

various moving jobs, such as moving an office, aside 

from the voting booth activity, which was an isolated, 

specific move). The specific job Claimant was 

performing when injured, moving the voting booths, was 

noted by both Claimant and [Owner], to be paid on a flat 

rate basis. The testimony of Claimant and [Owner] 

referable to the voting booth activities confirms Claimant 

could perform these activities at his discretion as long as 

the work was completed in the appropriate three week 

timeframe. There is no indication that [Owner] had the 

ability to direct Claimant concerning the manner in 

which the work was to be performed. This Judge cannot 

infer such ability. In fact the routing of the voting 

machines was performed by a third party. (N.T., 2/6/12 at 

39). This Judge finds [Company] did not have the ability 

to control the manner in which moving voting booths was 

performed.

 

WCJ Remand Op., 9/28/15, F.F. No. 5 (emphasis added). Therefore, the WCJ 

concluded:
9

2. Based upon the evidence presented, this Judge 

concludes, on the merits of the matter, that Claimant was 

an independent contractor referable to his activities of 

moving the voting booths. [Company] had no ability to 

control the work to be completed or the manner in which 

the voting booth activities were performed. Claimant 

failed to meet his burden of proving he was an employee 

of [Company].

 

Remand Op., C.L. No. 2 (emphasis added).

On appeal, the Board determined the WCJ erred in concluding that 

Claimant was an independent contractor rather than an employee. Bd. Op., 

6/23/16 (Second Bd. Op.), at 7. To that end, the Board determined Company 

controlled Claimant’s work to the extent it established an employer-employee 

relationship. Id. In reaching this decision, the Board noted Owner would contact 

Claimant the day before a job and instruct him as to what his work schedule would 

be for that day. Company required Claimant to be at the worksite at a specific 

time, and he could not leave until a specific time, even if he completed the work. 

Graebel Van Lines supplied the majority of the Company’s work and always had 

an on-site supervisor. Id. The Board also noted Company paid Claimant by the 

hour at a set hourly rate. Id. 

Summarizing its analysis, the Board stated:

In addition to the primary control factor, other 

factors all weigh in favor of Claimant being an employee 

of [Company]. [Hammermill Paper]. First, Claimant 

was not responsible only for results, as he was paid on an 

hourly basis and had set hours he was expected to work, 

whether or not the job was completed. Second, the 

agreement between Claimant and [Company] was of an 

hourly worker with a set hourly pay and schedule. Third, 
10

the nature of the work was an unskilled mover and 

Claimant had no distinct moving business outside of 

working for [Company]. Fourth, [Company] supplied 

Claimant the truck to use at all jobs. Fifth, payment was 

almost always done on an hourly basis, not by the job. 

Lastly, moving was [Company’s] entire business, as they 

were specifically a moving company. All these factors, 

in addition to [Company’s] right to control Claimant’s 

work, show there was an employer-employee relationship 

between [Company] and Claimant as contemplated under 

the [Workers’ Compensation Act].

1

 

Second Bd. Op. at 8 (footnote added).

The Board also rejected the WCJ’s decision to distinguish Claimant’s 

work during the voting machine job from his regular hourly work for Company. 

Although Company paid Claimant a flat rate for the voting machine job, and 

Company had less discretion over Claimant’s work activities, the Board did not 

find this sufficient to support a determination that Claimant was an independent 

contractor. Id. To that end, the Board reasoned that a determination of whether an 

employment relationship existed must be based on a collection of factors reflecting 

the entire relationship. Second Bd. Op. at 8-9. Therefore, the Board observed, 

Claimant’s specific activities in performing the voting machine job are relevant to, 

but not dispositive of a determination as to whether Claimant is an employee or an 

independent contractor. Id.

For the above reasons, the Board ultimately concluded Claimant was a 

Company employee rather than an independent contractor. Second Bd. Op. at 9. 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
11

Recognizing the WCJ accepted Claimant’s testimony and medical evidence related 

to the occurrence of a work injury, the Board determined Claimant sustained a 

work-related injury described as a “right foot strain and sprain, and right ankle 

strain and sprain with ATFL tear.” Id. The Board also noted the WCJ’s finding 

that Claimant could not return to work because of his injury. Id. Consequently, 

the Board reversed the WCJ’s denial of Claimant’s claim petition and held that 

Claimant was entitled to both wage loss and medical benefits from the date of his 

injury. Id. Employer petitions for review.2

II. Discussion

A. Argument

Company contends the Board erred in determining Claimant was an 

employee rather than an independent contractor. Essentially, Company asserts the 

WCJ properly determined Claimant functioned as an independent contractor while 

performing the voting machine job regardless of whether Claimant functioned as 

an hourly employee for Company while performing other moving work. Company

further asserts the Board exceeded its standard of review by disregarding the 

WCJ’s findings of fact which were supported by substantial evidence and indicated 

Claimant worked as an independent contractor while performing the voting 

machine job.

 

2 Our review is limited to determining whether the WCJ’s findings of fact were supported 

by substantial evidence, whether an error of law was committed or whether constitutional rights 

were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 

2013).
12

Company argues it had a completely different agreement with 

Claimant for the voting machine job. Company paid Claimant a lump sum for the 

entire job rather than at an hourly rate for work performed; Claimant was 

responsible for paying his own taxes. This form of payment fell completely 

outside the scope of Claimant’s typical arrangement. Claimant also had complete 

control over how to perform the voting booth job. Claimant determined the route 

of the truck and the order in which the machines would be delivered. Claimant set 

his own hours and determined when his work day would start and end. Claimant 

also had the freedom to hire a crew to help him complete the job.

Most importantly, Company asserts Claimant failed to present any 

evidence that Owner maintained a level of control during the voting machine job 

sufficient to establish an employment relationship. Owner never accompanied 

Claimant on the voting machine job. In fact, Owner did not know the truck route 

used for the job. In other words, Owner did not control Claimant’s performance of 

the voting machine job.

Company further argues that if the Board’s decision stands, it would

improperly establish a policy of “once an employee, always an employee.” Pet’r’s 

Br. at 16. As such, Company argues, it would be impossible for an employer to 

renegotiate the terms of a working relationship. To that end, Company asserts 

there is no case law indicating a claimant could be an employee in one capacity 

and have a different type of working relationship in another. In short, the Board’s 

rationale does not leave any room for an employment relationship to change and 

grow.
13

Therefore, Company contends the Board erred in disregarding the 

WCJ findings in her remand decision that Claimant had complete discretion as to 

how to perform the voting machine job, and that Company had no ability to control 

the manner in which Claimant performed that work. See Remand Op., F.F. No. 5. 

Because these findings were supported by the evidence, Company argues the 

Board exceeded its standard of review by selectively disregarding the WCJ’s 

critical findings of fact. See Bethenergy Mines, Inc. v. Workmen's Comp. Appeal 

Bd. (Skirpan), 612 A.2d 434 (Pa. 1992) (WCJ’s findings of fact are binding on 

appeal if supported by substantial competent evidence; it is not the Board’s role to 

reweigh the evidence). Further, it is irrelevant whether the record contains 

evidence supporting findings other than those made by the WCJ. Burrell v. 

Workers' Comp. Appeal Bd. (Phila. Gas Works), 849 A.2d 1282 (Pa. Cmwlth. 

2004). The critical inquiry is whether the record contains evidence supporting the 

findings actually made. Id.

Therefore, Company contends the Board erred in determining 

Claimant was an employee while performing the voting machine job based on 

factors related solely to his other moving work where Company paid him hourly 

and exercised greater control over the manner in which Claimant performed his 

work. In short, while performing commercial and residential moves for Company, 

Claimant was an employee. However, Claimant’s relationship with Company 

significantly changed when he performed the voting machine job. To that end, 

Company asserts there is no evidence supporting a finding that Owner had control 

over Claimant while he performed that job. Thus, Company asks that we reverse 
14

the Board’s order and hold that Claimant worked as an independent contractor 

while performing the voting machine job. Universal Am-Can; Hammermill Paper. 

B. Analysis

1. Applicable Law

To begin, we recognize that a claimant’s employment status is a 

critical threshold determination for liability under the Workers' Compensation Act. 

Am. Road Lines v. Workers' Comp. Appeal Bd. (Royal), 39 A.3d 603 (Pa. 

Cmwlth. 2012). A claimant must establish an employment relationship to receive 

benefits. Id. The existence of an employment relationship is a question of law to 

be determined based on the facts in each case. Id. 

A determination as to whether a claimant is an employee or 

independent contractor may be based on many factors. Id. These include (1) 

control of manner the work is done; (2) responsibility for result only; (3) terms of 

agreement between the parties; (4) nature of the work/occupation; (5) skill required 

for performance; (6) whether one is engaged in a distinct occupation or business; 

(7) which party supplies the tools/equipment; (8) whether payment is by time or by 

the job; (9) whether work is part of the regular business of employer; and, (10) the 

right to terminate employment. Id. The most relevant criteria are control of the 

manner of the work to be done, responsibility for the result, and the nature of the 

occupation. Id. However, none of the factors are dispositive. Id.

Nonetheless, the key factors in establishing an employer-employee 

relationship are the employer’s right to control the work to be done and the manner 
15

in which the work is performed. Universal Am-Can; Am. Road Lines. In short, 

control in an employment relationship exists where the alleged employer: 

possesses the right to select the employee; the right and power to discharge the 

employee; the power to direct the manner of performance; and, the power to 

control the employee. Am. Road Lines. Payment of wages and payroll deductions 

are significant, as is provision of workers’ compensation coverage. Id. However, 

the method of payment is not determinative. Id.

Applying the law to the facts of this case, we reach the same 

conclusion as the Board, albeit for slightly different reasons, that the record 

indicates Claimant functioned as a Company employee not only in his regular 

moving work for Company, but also while performing the voting machine job.

2. Hourly Work

First, as the Board determined and the WCJ apparently conceded in 

her remand opinion, the record contains sufficient indicia of an employment 

relationship between Company and Claimant regarding Claimant’s regular hourly 

work for Company. With the exception of the voting machine job, Company paid 

Claimant on an hourly basis. N.T., 2/6/12, at 34; R.R. at 105a. Claimant was 

expected to stay for the duration of the day, regardless of whether the work was 

finished. N.T., 2/6/12, at 35; R.R. at 106a. Ingram, Claimant’s brother, acted as 

the “unspoken supervisor or the number one person at [Company].” Id. Company 

provided Claimant with uniforms to wear with either a Graebel Van Lines or 

Company insignia. N.T., 2/6/12, at 40; R.R. at 111a. Because Company work 
16

usually involved residential moving, Company required that Claimant wear its 

insignia for that work. N.T., 2/6/12, at 41; R.R. at 112a.

Claimant further testified that 90 percent of Company’s commercial 

moving was for Graebel Van Lines. Id. Nonetheless, only Company paid 

Claimant. N.T., 2/6/12, at 43; R.R. at 114a. Specifically, Claimant testified (with 

emphasis added):

Whatever hours I that worked were always paid by 

[Company], so I never received a secondary payment or a 

check ... from another company. All my checks and all 

my hours were always billed or scheduled, listed and 

paid put through [Company].

 

Id. Claimant further testified he did not perform any other moving work than 

what he did for Company. N.T., 2/6/12, at 43-44; R.R. at 114a-15a. He would not 

take any “outside jobs.” Id. Given these circumstances, we conclude Claimant 

established an employer-employee relationship for the hourly work he performed 

for Company. Universal Am-Can; Am. Road Lines.

3. Voting Machine Job

In applying the law specifically to the voting machine work Company 

offered Claimant, we reach the same result. Although Company paid Claimant for 

the voting machine work with a single flat rate or lump sum payment, Claimant 

testified that Company rented the truck for the job and hired Byron Richardson, a

usual coworker, as the driver. See N.T., 2/6/12, at 38-39; R.R. at 109a-10a. In 

particular, Claimant testified “In general, Byron and I were scheduled to work 

together. As far as the routing of the machines, that was done by a third party.” 
17

N.T., 2/6/12, at 39; R.R. at 110a (emphasis added). Claimant further testified that 

whoever ran the voting machines “set the schedule for however many machines 

were designated for a specific place, the arrangement of who’s first; second, et 

cetera, et cetera.” Id. (emphasis added).

In Baum v. Workers' Compensation Appeal Board (Hitchcock), 721 

A.2d 402 (Pa. Cmwlth. 1998), we addressed a somewhat similar situation where 

the claimant, alleging an employment relationship, established Baum, the putative 

employer, supplied the truck and fuel the claimant used to perform the work, which 

involved the pick-up of saw dust. Unlike the present case, however, Baum also 

instructed the claimant on how to load the trucks and chose the specific routes. 

Nevertheless, akin to the present case, the claimant worked solely for Baum and 

nobody else. Because Baum controlled the claimant’s performance of his duties 

and the business contracts, we determined the claimant was an employee rather 

than an independent contractor.

Further, in Sarver Towing Co. v. Workers' Compensation Appeal 

Board (Bowser), 736 A.2d 61 (Pa. Cmwlth. 1999), we determined a claimant who 

operated a tow truck for a towing company essentially on a commission basis

established an employment relationship where the company provided him with a 

company tow truck, and the tools and materials needed to perform the job. In 

Sarver, the company permitted the claimant to keep the truck at home, and it did 

not exercise control over the routes the claimant could take or directly supervise 

him as he towed vehicles. Nevertheless, we reasoned the company did exercise 

substantial control over the manner in which the claimant performed his work. 
18

The claimant could not use the truck for any other work and remained on-call 24 

hours a day. In addition, the company could take back its equipment at any time.

Here, Owner testified the City contracted with Company for the 

voting machine job, which is a big contract. Cimadamore Dep. at 18; R.R. at 149a. 

Claimant was not a party to the contract. Id. Owner testified Company supplied 

rental trucks and the fuel for the job. Cimadamore Dep. at 16; R.R. at 147a. 

Owner testified Claimant, a helper who had no driver’s license, was one of four 

driver/helper pairs performing the voting machine work. Cimadamore Dep. at 9; 

R.R. at 140a. Company had the same agreement with the drivers as it did with the 

helpers. Cimadamore Dep. at 15-16; R.R. at 146a-47a.

Although Owner did not directly supervise Claimant on-site, he would 

talk with him every couple of days to see how they were doing and check if the 

machines were okay. Cimadamore Dep. at 10; R.R. at 141a. If the City would 

have called to complain about the performance of the voting machine job, Owner 

would have intervened. Cimadamore Dep. at 18; R.R. at 149a.

Further, Claimant testified he called Owner when he sustained his 

injury during the morning of November 3, 2011. N.T., 2/6/12, at 7; R.R. at 78a. 

Owner testified Claimant “worked only four days into the delivery portion” of the 

voting machine job. Cimadamore Dep. at 15; R.R. at 146a. Owner then “hired” 

someone to finish the job. Id.
19

In light of these circumstances, we must agree with the Board that 

Claimant continued to work as an employee for Company while performing the 

voting machine job. As discussed above, in determining whether an individual is 

an employee or an independent contractor, the primary factor to be considered is 

whether the putative employer has the right to control either the work to be done or 

the manner in which it is performed. Universal Am-Can; Am. Road Lines. It is 

the existence of the right to control that is most significant, regardless of whether 

that control is actually exercised. Universal Am-Can; Am. Road Lines.

Here, the WCJ found both Claimant’s and Owner’s testimony 

credible. Contrary to the WCJ’s findings, Owner testified Company had the 

authority to intervene in Claimant’s performance of the voting machine job if the 

City complained about the performance of the work. This factor is critical in 

deciding whether an employer has control over the manner in which the claimant 

performs the work. Universal Am-Can; Am. Road Lines. Although Owner 

exerted very little supervision over Claimant while performing the voting machine 

job, this resulted more from a lack of need than a lack of capacity because 

Claimant had prior experience performing the voting machine job. Sarver. Owner 

also demonstrated the ability to hire another individual to replace Claimant and 

finish the job.

Given the totality of the circumstances here, we see no error in the 

Board’s order determining, as a matter of law, that Claimant met his burden of 

establishing an employer-employee relationship not only while performing hourly 

work, but also while performing the voting machine job. Universal Am-Can; Am.
20

Road Lines. Accordingly, we affirm the Board’s order awarding Claimant benefits 

from the date of his work injury based on his average weekly wage of $755.64. 

See Second Bd. Op. at 9-10; Bd. Order, 6/23/16.

 

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Always Moving, LLC and :

State Workers' Insurance Fund :

Petitioners :

:

v. : No. 1183 C.D. 2016

:

Workers' Compensation Appeal :

Board (Sutton), :

Respondent :

O R D E R

AND NOW, this 20th day of April, 2017, for the reasons stated in the 

foregoing opinion, the order of the Workers' Compensation Appeal Board is 

AFFIRMED.

 

ROBERT SIMPSON, Judge