IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Manjinder S. Tiwanna, Deceased, : CASES CONSOLIDATED

by Balwinder Kaur, Dependent, :

 Petitioner :

 :

 v. : 

 : 

Jatt Friends, Inc., Kaolin Mushroom :

Farms, Inc., Uninsured Employers :

Guaranty Fund, and USA Freight, Inc. :

(Workers’ Compensation Appeal Board), :

 Respondents : No. 852 C.D. 2021

 

Manjinder S. Tiwanna, Deceased, : 

by Balwinder Kaur, Dependent, :

 Petitioner :

 :

 v. : 

 : 

Race, Inc., Kaolin Mushroom :

Farms, Inc., Uninsured Employers :

Guaranty Fund, and USA Freight, Inc. : No. 853 C.D. 2021

(Workers’ Compensation : Submitted: August 5, 2022

Appeal Board), :

 Respondents :

 

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WALLACE FILED: December 1, 2022
2

Balwinder Kaur (Claimant), an adult dependent of Manjinder Tiwanna 

(Decedent), petitions for review of the Workers’ Compensation Appeal Board’s 

(Board) June 30, 2021 Order that affirmed a Workers’ Compensation Judge’s (WCJ) 

September 21, 2020 Decision denying Claimant’s claim petitions against Jatt 

Friends, Inc. (Jatt), Race, Inc. (Race), Kaolin Mushroom Farms, Inc. (Kaolin), USA 

Freight, Inc. (USA Freight) (collectively, Alleged Employers), and the Uninsured 

Employers Guarantee Fund (UEGF). On appeal, Claimant argues the Board erred 

in determining Decedent was an independent contractor and not an employee of one 

of the Alleged Employers. Upon review, we affirm.

I. Background

Before June 1, 2018, Decedent was driving a tractor trailer pursuant to an 

independent contractor agreement with Jatt. Certified Record (C.R.), Item No. 11, 

Findings of Fact (F.F.) Nos. 11i, 16b, 17. Decedent signed a notice of termination, 

with an effective date of May 31, 2018, which indicated that he was “voluntarily

terminating his contract for driving with Jatt . . . .” F.F. No. 17. On June 1, 2018, 

Decedent signed an Independent Contractor Agreement with Race, wherein Race

agreed to obtain delivery jobs for Decedent, Decedent agreed to pay Race a dispatch 

fee, and Decedent agreed to lease a tractor trailer from Race. F.F. Nos. 14, 15, 21e. 

The agreement also specified “[i]t is expressly agreed that [Decedent] shall always

be acting as an independent contractor during the performance of any services under 

the Agreement. This Agreement does not constitute, and shall under no 

circumstances be construed as constituting, or creating, an employer/employee 

relationship between [Race] and [Decedent].” F.F. No. 21f. 
3

Decedent died on June 5, 2018, due to injuries he sustained from a tractor 

trailer accident. F.F. No. 10. At the time of his death, Decedent was transporting a 

load of mushrooms, which Kaolin subcontracted to Race. See F.F. No. 23. Claimant 

filed Fatal Claim Petitions for Compensation by Dependents of Deceased Employees 

(Fatal Claim Petitions) against Jatt and Race. F.F. Nos. 1-2. In her Fatal Claim 

Petitions, Claimant alleged that she was living with and totally dependent upon her 

son, Decedent, who was injured while employed by Jatt and Race. See e.g. C.R., 

Item No. 2. Shortly after filing the Fatal Claim Petitions, Claimant filed claim 

petitions for benefits from UEGF against Jatt and Race. UEGF then filed joinder 

petitions, seeking to add Kaolin and USA Freight1 as additional employers. F.F. No. 

6; C.R., Item No. 15, at 1. 

The WCJ held a series of hearings in this matter, wherein Claimant and 

representatives of Jatt, Race, Kaolin, USA Freight, and UEGF testified. See F.F. 

Nos. 8, 11, 12, 13, 14, 15, 16, 22, 23. Claimant asserted Decedent was an employee 

of Jatt and Race, while Alleged Employers all denied that Decedent was their 

employee. Id. Representatives of Jatt and Race specifically asserted Decedent was 

operating as an independent contractor at the time of his death. Id. Due to Race and 

Jatt’s failure to timely file an answer to Claimant’s Fatal Claim Petitions, the WCJ 

deemed the factual allegations in those petitions admitted.2 F.F. No. 37. 

1

 USA Freight is a party to this action because the “Drop Sheet for the [Kaolin] job on June 2, 

2018 . . . [had] the name of [USA Freight] on it because [Race] wasn’t set up in [Kaolin]’s 

computer system as a common carrier by June 2, 2018.” F.F. No. 23e. Claimant did not, however, 

assert that USA Freight was Decedent’s employer at the time of Decedent’s death. See generally

C.R., Item No. 11. 

2

 The WCJ deemed the following facts admitted:

a.) The business of the Defendants was trucking.

b.) The time of the injury was 11:24 p.m.

(Footnote continued on next page...)
4

After summarizing the testimony of each witness, the WCJ issued the 

following findings:

Ms. Dhaliwal[, who operated Jatt,] and Mr. Sekhon[, who operated 

Race,] are credible and persuasive, particularly with respect to the 

existence of the independent contractor agreements between [Race] and 

[Decedent]. [sic] because their testimonies are corroborated by Mss. 

Lindsey[, who notarized a June 1, 2018 Independent Contractor 

Agreement between Race and Decedent,] and Lynch[, who witnessed 

Decedent execute the Independent Contractor Agreement,] and the 

documents in evidence. Mss. Lynch and Dhaliwal and Mr. Sekhon are 

credible and persuasive about [Decedent]’s status as an independent 

contractor at the time of the injury and his demise because: the 

independent contractor agreements with [Decedent]’s notarized 

signature on it [sic] substantiate his status as an independent contractor, 

statements in the Pennsylvania Income Tax Return for 2017 buttressed 

c.) The cause of death was brain death [as declared] by USA Medical Center Staff.

d.) The deceased incurred medical bills from USA Medical Center and from MedTrans in the amount of $37,164.25.

e.) The expenses for the burial were $10,128.38.

f.) The paid amount from the Defendants was $0.

g.) The wages of the deceased at the time of the accident were $850.00.

h.) The notice of injury and/or death was orally given to the Defendants on 6/5/18 

by Sandeep Kaur to Amrit Dhaliwal and Harbinder Dhaliwal.

i.) The dependent was Balwinder Kaur . . . as the mother[,] and the dependency was 

total.

j.) The petitioner lived with the deceased at the time of death and wasn’t a widow 

of the deceased.

k.) There wasn’t other pending litigation.

F.F. No. 37.

The WCJ properly deemed only factual allegations, and not the employment relationship, 

admitted in response to Claimant’s Yellow Freight Motion. See Yellow Freight Sys., Inc. v. 

Workmen’s Comp. Appeal Bd. (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981) (holding that when 

a defendant fails to file an answer to a claim petition within the statutory answering period, the 

WCJ must deem the factual allegations within the claim petition as having been admitted); 

Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs.), 159 A.3d 61, 72 (Pa. 

Cmwlth. 2017) (explaining that the employment relationship “is a question of law” and that 

“[c]onclusions of law are not deemed admitted by a late answer to the claim petition”).
5

[Decedent]’s self-employment and the lack of his dependents, and 

statements in a Department of the Treasury Internal Revenue Service 

Form 1040 U.S. Individual Income Tax Return 2017 for Decedent

showed deductions for a self-employment tax, indications of selfemployment, and the lack of his dependents. Ms. Dhaliwal and Mr. 

Sekhon are credible and persuasive about [Decedent]’s status as an 

independent contractor because their testimonies and the evidence as a 

whole established that the terms of the agreements between [Decedent]

and [Race] weren’t indicative of an employer-employee relationship at 

the time of the accident and subsequent demise, that they didn’t control 

the manner of [Decedent]’s performance of delivery with the exception 

of the specified load pick up and delivery points and times for the 

aforesaid, that [Decedent] was only responsible for the results, that 

[Decedent]’s payments were by the load, job, mile, or percentage of the 

transported load less a dispatch amount, that they didn’t train

[Decedent] for the operation of the tractor-trailer, that there wasn’t a 

continuing relationship between the Defendants and [Decedent] with 

work at frequently or recurring intervals, that there were no set hours 

of work for [Decedent], that [Decedent]’s work wasn’t performed on 

[Race]’s premises, that [Decedent] could and did turn down loads, that 

[Decedent]’s performance of services in an order or sequence and in 

accordance with [Race]’s specifications wasn’t required with the 

exception of the load pick up and delivery points and times for the 

aforesaid at the time of the accident and subsequent demise, and that 

there were no payments to [Decedent] by the hour, week, or month.

F.F. No. 35. Accordingly, the WCJ determined that Claimant did not sustain her 

burden of proving that Decedent’s death was caused by an injury he sustained during 

his employment with one of Alleged Employers. C.R., Item No. 11, Conclusions of 

Law No. 4. Therefore, the WCJ denied Claimant’s Fatal Claim Petitions. See C.R., 

Item No. 11. 

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

Board determined the WCJ’s factual findings were supported by substantial 

evidence, and the WCJ did not commit an error of law in determining that Decedent 

was an independent contractor at the time of his death. Claimant timely appealed to 

this Court. 
6

II. Analysis

On appeal, Claimant argues the Board’s decision should be reversed because 

the WCJ’s factual findings related to Decedent’s employment status were not 

supported by substantial evidence and the WCJ and the Board committed an error of 

law in concluding that Decedent was an independent contractor.

3

 In support of this

argument, Claimant asserts the WCJ found the testimony of Kaolin’s transportation 

manager to be “credible and persuasive,” a portion of which the WCJ summarized

as follows:

[Kaolin] doesn’t allow double-brokering, specifically an entity, like 

[Race], to hire another person or entity to deliver [Kaolin]’s load. That 

prohibition [] is in the contract between [Kaolin] and common carriers,

like [Jatt] and [Race] and the common carrier’s assignment of a job to 

3

 In the “statement of questions involved” section of Claimant’s brief, Claimant only identified 

one question, as follows: “[w]hether the WCJ and [Board] should be reversed because they ignored 

substantial evidence proving that Decedent could not be an independent contractor because 

[Kaolin] brokered the job to [Race], [Kaolin] would not permit [Race] to give the load to Decedent, 

and [Race] knew of this prohibition?” Although this question does not directly allege any errors 

of law, the determination of an employer/employee relationship is a question of law, so we will 

consider Claimant’s argument as also challenging the WCJ and the Board’s legal conclusion that 

Claimant was an independent contractor at the time of his death. See Universal Am-Can, Ltd. v. 

Workers’ Comp. Appeal Bd. (Minteer), 563 A.2d 328, 330-31 (Pa. 2000) (employment relationship 

is a question of law); Pa.R.A.P. 2116(a) (questions may be considered if they are fairly suggested 

by the statement of questions involved). 

In the Argument section of Claimant’s brief, Claimant presents arguments that the Board 

committed errors of law by not concluding that (a) Kaolin was a statutory employer of Decedent, 

(b) Decedent was an employee because he never fulfilled any of the requirements of his 

independent contractor agreement, and (c) the WCJ should have granted Claimant’s Yellow 

Freight Motion thereby deeming the employment relationship admitted. See Petitioner’s Brief, at 

25-33. These allegations of error have not been preserved for our review as they are not stated in 

or fairly suggested by Claimant’s statement of the questions involved. See Pa.R.A.P. 2116(a) (“No 

question will be considered unless it is stated in the statement of questions involved or is fairly 

suggested thereby.”); In the Interest of T.W., 261 A.3d 409, 424 n. 9 (Pa. 2021) (question the 

appellant did not raise in the statement of questions involved section of its brief was not preserved 

for appellate review). 
7

a different entity or individual would void the contact between the 

common carrier, like [Jatt] and [Race], and [Kaolin]. Mr. Sekhon[, who 

operated Race,] had full knowledge of the aforesaid.

F.F. Nos. 23k, 36. The WCJ also noted that Kaolin’s transportation manager 

believed Decedent worked for Race. F.F. No. 23d. Claimant also asserts that the 

WCJ found the testimony of Race’s operator to be credible, a portion of which the

WCJ summarized as follows:

If [Race] wanted someone else’s delivery of a [Kaolin] load than 

[Race], [Kaolin] wouldn’t have allowed that and [Kaolin] wouldn’t 

have permitted [Decedent]’s delivery of the load on the date of the 

accident. [Decedent] couldn’t do any work for [Kaolin] on his own in 

accordance with the terms of the Independent Owner/Contractor 

agreement [between Kaolin and Race].

F.F. Nos. 22h, 35. 

Claimant argues the WCJ’s and Board’s findings that Claimant was an 

independent contractor are not reconcilable with the uncontradicted, credible 

testimony that Race did not have the authority to give a Kaolin delivery to an 

independent contractor. See Petitioner’s Br. at 15-16. Thus, Claimant argues the 

WCJ’s and the Board’s findings were not supported by substantial evidence and the 

WCJ’s and Board’s resulting legal conclusion that Decedent was an independent 

contractor constitutes an error of law. See id. at 14-23. 

In a workers’ compensation appeal, we are “limited to determining whether 

necessary findings of fact are supported by substantial evidence, whether an error of 

law was committed, or whether constitutional rights were violated.” Elberson v. 

Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n. 2 (Pa. Cmwlth.

2007). “Substantial evidence is such relevant evidence as a reasonable person might 

accept as adequate to support a conclusion.” Waldameer Park, Inc. v. Workers’
8

Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003) (citation 

omitted). “The WCJ is the ultimate factfinder and has exclusive province over 

questions of credibility and evidentiary weight.” Univ. of Pa. v. Workers’ Comp. 

Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth. 2011) (citation omitted). 

A claimant’s employment status is a “crucial threshold determination that 

must be made before granting workers’ compensation benefits[,]” because “[a]n 

independent contractor is not entitled to benefits . . . .” Universal Am-Can, Ltd. v. 

Workers’ Comp. Appeal Bd. (Minteer), 563 A.2d 328, 330 (Pa. 2000) (citations 

omitted). A workers’ compensation claimant “bears the burden of proving all 

elements necessary for an award, including the existence of an employer-employee 

relationship.” Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home Care, Inc.),

134 A.3d 1156, 1162 (Pa. Cmwlth. 2016) (citing Universal Am-Can, 563 A.2d at

330). The “determination regarding the existence of an employer/employee 

relationship is a question of law that is determined on the unique facts of each case.” 

Universal Am-Can, 563 A.2d at 330-31 (citation omitted).

Our Court recently set forth our considerations in determining a claimant’s 

employment status as follows:

“While no hard and fast rule exists to determine whether a particular 

relationship is that of employer-employee or owner-independent 

contractor, certain guidelines have been established and certain factors 

are required to be taken into consideration....” Hammermill Paper Co. 

v. Rust Eng’g Co., . . . 243 A.2d 389, 392 ([Pa.] 1968). Courts consider 

many factors including:

(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 
9

job; (9) whether work is part of the regular business of 

employer; and, (10) the right to terminate employment.

Am. Rd. Lines v. Workers’ Comp. Appeal Bd. (Royal), 39 A.3d 603, 611 

(Pa. Cmwlth. 2012); accord Hammermill.

Although no one factor is dispositive, control over the work to be 

completed and the manner in which it is to be performed are the primary 

factors in determining employee status. Universal Am–Can; Am. Rd. 

Lines. Control 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. Rd. Lines, 39 A.3d at 611 (citing 3D 

Trucking v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings 

Int’l), 921 A.2d 1281 (Pa. Cmwlth. 2007)).

Moreover, payment of wages and payroll deductions are significant 

factors, as is provision of workers’ compensation coverage. Id.; Martin 

Trucking Co. v. Workmen’s Comp. Appeal Bd. (Andrushenko & Clark 

Searfoss), . . . 373 A.2d 1168 ([Pa. Cmwlth.] 1977). However, payment 

is not determinative. Am. Rd. Lines; see Martin. In addition, a tax filing 

denoting self-employment, while a relevant factor, is not dispositive on 

the issue. See Guthrie v. Workers’ Comp. Appeal Bd. (The Travelers’

Club, Inc.), 854 A.2d 653 (Pa. Cmwlth. 2004). Similarly, the existence 

of an employment or independent contractor agreement is another 

factor to consider, but it is not, by itself, dispositive. Hammermill.

Edwards, 134 A.3d at 1162-63. 

Contrary to Claimant’s assertion, neither Kaolin’s contract with Race, nor

Kaolin’s transportation manager’s belief that Decedent was an employee of Race, 

conclusively establishes that Decedent was an employee of Race. Although Race 

would be violating its contract with Kaolin by having Decedent transport Kaolin’s 

load as an independent contractor, this does not preclude a finding that Decedent 

was acting as an independent contractor. Nor does Kaolin’s transportation 

manager’s belief that Decedent was Race’s employee. Instead, these were merely 
10

factors in determining whether Decedent was Race’s employee. Am. Rd. Lines, 39 

A.3d at 611. 

The WCJ extensively analyzed and weighed the testimony and documentary 

evidence in this matter. See generally C.R., Item No. 11. Each of the WCJ’s factual 

findings were supported by testimony or documentary evidence that the WCJ found 

to be credible. Id. The evidence the WCJ relied on was sufficient that a reasonable 

person would accept it as adequate to support the WCJ’s factual findings. See 

Waldameer Park, 819 A.2d at 168. Accordingly, we conclude that the WCJ’s factual 

findings related to Decedent’s employment relationships are supported by 

substantial evidence. The Board, which is bound by our same standard of review, 

did not err in reaching the same conclusion.

In analyzing the WCJ’s legal conclusion that Decedent was an independent 

contractor at the time of his death, the Board, after quoting the WCJ’s factual finding 

No. 35 (which we have also quoted above), determined

[t]hese credibility determinations and factors laid out by the WCJ 

clearly establish both alleged employers lacked control over Decedent’s 

work. Universal Am-Can. In addition, they take into consideration 

other established factors to show Decedent was an independent 

contractor. Specifically, Decedent was responsible for results only, the 

terms of agreement between the parties established an independent 

contractor relationship, the nature of the work was a skilled truck driver 

occupation, Decedent supplied the tools, and payment was done by the 

job. Given these factors, including the main control factor, we 

determine the WCJ did not err in concluding that Decedent was an 

independent contractor.

C.R., Item No. 15, at 9. We agree with the Board’s determination. 

III. Conclusion

For the reasons set forth above, we conclude the Board did not err in 

determining the WCJ’s findings of fact were supported by substantial evidence and 
11

that the WCJ did not commit an error of law when it determined Decedent was an 

independent contractor at the time of his death. Therefore, we affirm the Board’s 

order.

______________________________

STACY WALLACE, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Manjinder S. Tiwanna, Deceased, : CASES CONSOLIDATED

by Balwinder Kaur, Dependent, :

 Petitioner :

 :

 v. : 

 : 

Jatt Friends, Inc., Kaolin Mushroom :

Farms, Inc., Uninsured Employers :

Guaranty Fund, and USA Freight, Inc. :

(Workers’ Compensation Appeal Board), :

 Respondents : No. 852 C.D. 2021

 

Manjinder S. Tiwanna, Deceased, : 

by Balwinder Kaur, Dependent, :

 Petitioner :

 :

 v. : 

 : 

Race, Inc., Kaolin Mushroom :

Farms, Inc., Uninsured Employers :

Guaranty Fund, and USA Freight, Inc. : No. 853 C.D. 2021

(Workers’ Compensation : 

Appeal Board), :

 Respondents :

O R D E R 

AND NOW, this 1st day of December, 2022, the Order of the Workers’

Compensation Appeal Board, dated June 30, 2021, is AFFIRMED.

______________________________

STACY WALLACE, Judge