IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Joan Van Leer

, :

Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Hudson)

, : No. 1127 C.D. 2018

Respondent : Argued: February 11 , 201 9

BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Judge

HONORABLE ANNE E. COVEY, Judge (P.) HONORABLE CHRISTINE FIZZANO CANNON

, Judge

OPINION BY JUDGE COVEY FILED: February 27, 2019

Pamela Joan Van Leer (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) July 17, 2018 order affirming

the WC Judge ’s (WCJ) decision denying Claimant’s Claim Petition. The sole issue

before th is Court is whether Claimant’s duties as a caretaker for a woman suffering

from mild dementia comes within t he d o m e stic service exception to the WC Act

(Act) 1 (Domestic S ervice Exception). 2

On June 2, 2016, Claimant was injured while taking care of her
employer Suzanne Hudson (Employer/Hudson). Claimant filed the Claim Petition on

October 13, 2016

. Claimant alleged therein that she sustained injuries in the course
and scope of her employment, including a broken nose, damaged teeth, lacerations on
her face, hands, legs, aggravation of pre

- existing arthritis and a concussion. Claimant

further averred that she sustained possible scarring on her face. Employer filed a n

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

- 10 41.4, 2501

- 2708.

2 See Section 321 of the Act, as amended

, a dded by Section 22 of the Act of March 29, 1972, P.L. 159, 77 P.S. § 676.2

Answer , denying the material averments of the Claim Petition, and also alleging that

Claimant was precluded from WC benefits under the Act’s D omestic Service

E xception.

A WCJ hearing was held on November 18, 2016

, at which time the case

was bifurcated on the issue of whether the Domestic Service E xception applies

. On
January 13, 2017, the WCJ denied the Claim Petition

, conclud ing that Claimant was
engaged entirely in domestic service. Claimant appealed to the Board. On July 17,

2018

, the B oard affirmed the WCJ’s decision. Claimant appealed to this Court. 3

Initially, Section 321 of the Act provides, in relevant part:

Nothing contained in this [A] ct shall apply to or in any way affect:

(1) Any per son who at the time of injury is engaged in domestic service: Provided, however, That in cases where the employer of any such person shall have, prior to such injury, by application to the [D] epartment [of Labor and Industry (Department)] and approved by t he [D] epartment, elected to come within the provisions of the [A] ct, such exemption shall not apply. [ 4 ]

77 P.S. § 676.

Claimant argues that her duties as Hudson’s caretaker do not fall within
the Domestic Service Exception. Specifically, Claimant conte nds that this Court
should reject the Board’s test that requires an in

- home employee to have and use
professional expertise in her work to be co mpensated under the Act. Claimant

maintains that the test should follow the precedent and define domestic servi ce as

3 “On review[,] this Court must determine whether constitutional rights were violated, errors of law were committed, or n ecessary findings of fact were supported by substantial competent evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.) , 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014).

4 It is un disputed that Employer did not elect to com e within the A ct ’s p rovisions

.3

including th e general needs of a household resident or whole household and not the
specialized and particular medical needs of an individual in the household.

The Board rejoins that precedent holds that someone who is engaged in
domestic service: (1 ) works in or around the employer’s home; (2) for the comfort
and benefit of the employer’s household; but (3) does not further the employer ’ s business interests; and (4) does not provide professional or skilled services. Relying

on this test , the Board m aintains that Claimant is a domestic servant.

There is little case law on th is issue as to whether Claimant’s duties as a

caretake r for a woman suffering from dementia fall within the Domestic Service
Exception. However, the interpretation of what preced ent holds is varied

. Accordingly, this Court will conduct its own analysis

.

We begin our review with Vaughn v. McFadden , 35 Pa. D. & C. 307

( 1939), wherein a common pleas court explained the e xclusion which

, at that time
excepted from the term employee

, “all who are engaged in ‘ domestic services
performed in a private home ’

. ” 5 Id. at 308.

The [ Act ] was passed primarily for the benefit of the great army of business and industrial workers, for whom the

common

- law remedy, which had arisen out of the condi tions surrounding the small shop and the use of simple machinery or no machinery at all, seemed to have become inadequate. Its motivating philosophy was that the loss arising from accidents in industry should not be bo rne in such heavy proportions by the employe, and that these losses should be added to the cost of production, the same as losses sustained in the destruction or deterioration of machinery. Accordingly, the legislature did not find it necessary to include all classes of employes within the scope of the [A] ct in order to accomplish its purposes. Partly for this reason, and partly for reasons of administrative convenience, persons engaged in domestic services performed in a private home have been excluded fr om the operation of the [A] ct

. This background

5 See former Section 304 of the Act.4 should be borne in mind in considering the meaning of the
term ‘ domestic services. ’

Vaughn , 35 Pa. D. & C. at 309 (citations omitted ; emphasis added ). In Vaughn , t he
“[c]laimant’s statement as to her duties was as follows: ‘. . . all she wanted was
somebody to be a companion, to go out with her when she wanted to go out and
things of that kind and just be there if she wanted me for anything. There really were

no duties.’” Vaughn , 35 Pa. D. & C. at 308. Ba sed on the above, the Vaughn court
concluded that the claimant, who was hired to be a companion, “ was engaged in

‘ domestic service performed in a private home ’ within the meaning of [S] ection 304

of [ Act .]” Id. at 311.

Shortly thereafter, the Pennsylvani a Superior Court expounded:

The question, here raised, involves a construction of the [Act] to determine its scope and intent. [ 6 ] In a strict sense a domestic servant is one who resides in the same house with the master whom he s erves (1 Bouv. Law Dict., Rawle’ s Third Rev., p. 914); one who lives in [sic] the family of another as a hired household assistant; a house servant (19 C.J. 389; 27 C.J.S., Domestic, p. 1318; 1 Blackstone 328)

. But, in its broader meaning, ‘ domestic ’ also includes services ‘ pertai ning to one’s house or home, or one’ s household or family; relating to home life. ’ (Webster).

The coupling of domestic servants with agricultural workers, in the same Act, is significant. Agricultural workers are those who are engaged in an enterprise conducted by the employer for his profit. House servants merely contribute to the personal needs and comfort of the employer. Between the two groups are the outservants, who in strictness do not fall within either class. And yet there is much better reason for excluding gardeners, caretakers and the like, than agricultural workers, for they are not engaged in a commercial enterprise and their services all relate to the home life. Our conclusion, in

6 Referring to “ the [] Act of June 21, 1939, P.L. 565, 77 P.S. § 1a, which provides that the Act shall not ‘ apply to or in any way affect any person who at the time of injury is engaged in domestic service or agriculture. ’” Jack v. Belin’s Estate , 27 A.2d 455, 456 (Pa. Super. 1942)

. Secton 1a of the Act was repealed by Section 26 of the Act of March 29, 19 72, P.L. 159

.5 construing the Act, i s that the place where the services are performed does not determine the nature of the employment. Cooks and house maids are domestic servants, not because they work indoors, but because they serve the needs of the hou sehold

. Similarly, one who drives an automobile in bringing supplies from market or in disposing of waste materials or who raises vegetables and produce for use on the estate is a domestic servant in the broader sense contemplated by the Act. Growing flo wers for the delight and pleasure of the family of the owners is the same kind of service. Where, as here, the grounds, though extensive, are maintained as the curtilage to the mansion house and for the comfort and pleasure of the occupants, they who thus minister to the needs of the owners, according to the standard of living established by them, are domestic servants within the purview of the Act.

Jack v. B elin’s Estate , 27 A.2d 455, 457 (Pa. Super. 1942) (emphasis added)

. Based
thereon, the Superior Co urt concluded that the claimant, as the estate’s gardener,
provided “domestic service” and was

, thus

, “excluded from all benefits under the []

Act.” Belin’s Estate , 27 A.2d at 457.

This Court first attempted to define the term domestic service, as it is

used in Section 321 of the Act, in V iola v. Workmen’s Compensation Appeal Board

(Welch) , 549 A.2d 1367 (Pa. Cmwlth. 1988). Therein

, the claimant

was employed by [the p] etitioner on a permanent basis to care for [his] wife (Mrs. Viola), who was an inv alid confined to a wheelchair. [The c]laimant’ s job duties included giving Mrs. Viola her medication, feeding Mrs. Viola, bathing Mrs. Viola, and helping Mrs. Viola get in and out of bed and get dressed

. Id. at 1368. Relying on Belin’s Estate , the V iol a Court concluded:

[I] t is clear that [ the c ] laimant was not engaged in ‘domestic service

. ’ [The c] laimant did not serve, nor was she employed to serve, the needs of the household. All of [ c ] laimant’s job duties as found by the [R] eferee and supported b y substantial evidence in the record related solely to the unique needs of Mrs. Viola , rather than the general needs of the household.6

Id. at 1369 (emphasis added) . The Court expressly held: “ Because [ the c]laimant’ s job involved performing dut ies simil ar to those of a nurse’ s aide,

. . . and did not
involve performing household duties, we conclude th at [c]laimant was not engaged in

‘ domestic service ’ for purposes of the Act. ” V iola , 549 A.2d at 1369.

This Court next addressed the Domestic Service Exc eption in Dutrow v.
Workmen’s Compensation Appeal Board (Heckard’s Catering) , 632 A.2d 950 (Pa.
Cmwlth. 1993). In Dutrow , the Referee determined that the claimant performed
domestic service yet nevertheless awarded WC benefits. The Board reversed the

Ref eree’s decision . Although this Court agreed that the claimant’s domestic service

work was excluded under the Act, it independently reviewed the claimant’s duties to

make its own determination relative to what work included domestic service. The

claimant’ s relevant responsibilities included: (1) picking her grandson up from
school, feeding him and taking care of him for her daughter

- in

- law; (2) doing

housework

, laundry , ho u se cleaning, banking and grocery shopping for her neighbor

at her neighbor’s home; a nd (3) house cleaning on Saturday s for her employer’s wife.

The Dutrow Court concluded that claimant ’s work for her employer’s

wife (cleaning) and her neighbor ( housework ) wa s domestic service because it wa s

work that serve d the needs of those respective households . With respect to the
babysitting, claimant argued that babysitting is not domestic service because
babysitting does not benefit the needs of a household. The claimant contended that
babysitting serves the specialized needs of the child in the same way that the

claimant’ s services in Viola served only the needs of Mrs. Viola

. However, the

Dutrow Court concluded that there was no indication that the claimant acted as a
nurse’s aide for her grandson, and th at claimant baby sat her grandson only

f rom the time she finished work until the time her daughter

- in

- law could pick

up the child. Thus, the Court held that the Act does not require coverage for7

baby sitters who work for employer s who have not elected to come within the
provisions of the Act

. I

d.
This Court most recently addressed the Domestic S ervice E xception in
Fletcher v. Workers’ Compensation Appeal Board (S aia ) (Pa. Cmwlth. No. 1664
C.D. 2009, filed March 26, 2010). In addition to deciding wh e ther the claimant was
an employee or an ind ependent contractor, the C ourt had to determine whether

claimant’s services were domestic work excluded under Section 321 of the Act.
Although the Board cites this case in support of its position ( because the Board found
claimant’s duties, which included home healthcare and helping with bathing and meal
preparation and light housekeeping, were domestic service ) , this Court did not

address the domestic service issue. Specifically , the Fletcher Court noted:

[The c] laimant next contends that the Board erred when it determined that [ the c] laimant engaged in domestic service with respect to her work

. . . and was ineligible to receive [WC] benefits. Because this Court has determined that [c] laimant was not an employee

. . . , this Court need not address this i ssue

. The Board did affirm

. . . on the basis that [c] laimant engaged in domestic work. Although the Board determined that the WCJ credited in full the testimony of Saia which included statements that [c] laimant performed nonmedical personal services

. . . as well as light housework, a review of the record reveals that the WCJ did not make any specific findings regarding domestic service. Therefore, this Court cannot determine based on the record whether [ c ] laimant was a domestic worker and exempt from th e Act

. However, this Court affirms on the basis that [c] laimant was not an employee. This Court may affirm on other grounds where grounds for affirmance exist

.

Fletcher , slip op. at 14 n.9 (emphasis added)

. Accordingly, Fletcher is not relevant to

the C ourt’s current analysis.

The law is well

- settled that “w hether or not work constitutes domestic
service under the Act is a question of law reviewable by this [C] ourt. ” Dutrow , 632

A.2d at 952. Claimant argues that her work is more akin to a nurse’s aid e whose8

duties are within the purview of the Act, than a babysitter who se responsibilities are

not . The Board retorts that the only difference between Claimant’s duties and that of
a babysitter is the age of the person for whom she cared.

Having reviewed the evolution of the law in this area, this Court agree s

with the Board herein . First, this Court in Dutrow held that one who cares for a child
is excluded under the Domestic Service Exception. In the instant case , t he WCJ

determined that Claimant was c redible. See WCJ Dec. at 4. The WCJ found a s a fact

that Claimant testified:

a. Claimant’ s job was to make sure that the needs of [ ] Hudson were being met. Claimant was to make sure that [ ] Hudson did not fall, get hurt or leave the house

. She explained t hat [ ] Hudson suffered from ‘ a little dementia. ’

b. Claimant worked at night. Her duties included making sure that [] Hudson was ready for bed, and had her medicine. She would make sure that [] Hudson went into her bedroom and was asleep, then Claimant woul d come back downstairs and stay up all night long. Claimant would also sometimes let [] Hudson’s dogs out. Claimant gave some examples of her interactions with [] Hudson, but stated that her job consisted mostly of ‘sitting there making sure .’

c. Claimant a cknowledged that [] Hudson lived alone. There were no other members of her household. Claimant acknowledged that other than making sure that [] Hudson took her medicine, she did not provide any type of medical

care

. WCJ Dec. at 4 (Finding of Fact 3) (emph asis added; record citations omitted)

. Claimant does not dispute these findings.

T he WCJ concluded: “Claimant’ s duties consisted entirely of service to
members of the household, which consisted solely of [ ] Hudson

. Within Claimant’ s credible testimony, she specifically denied providing any other type of service, such

as medical care, to [ ] Hudson

. ” WCJ Dec. at 4 (Conclusion of Law 3). Given that9

Claimant’s main responsibility was to get Hudson ready for bed and make sure she
stayed in bed throughout th e evening, we discern no error in the WCJ’s conclusion.

Accordingly, Claimant’s duties as a caretaker for a woman suffering

from mild dementia fall s within the D ome stic Service E xception

.

For all of the above reasons, the Board’s order is affirmed

.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Joan Van Leer, :

Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Hudson), : No. 1127 C.D. 2018

Respondent :

O R D E R

AND NOW, this 27 th day of February , 201 9

, the Workers’
Compensation Appeal Board’s July 17, 2018 order is affirmed

.

___________________________ ANNE E. COVEY, Judge