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, 2019

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

from mild dementia comes within the domestic service exception to the WC Act 

(Act)1(Domestic Service 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 an 

 

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

2

See Section 321 of the Act, as amended, added 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 Domestic Service 

Exception.

A WCJ hearing was held on November 18, 2016, at which time the case 

was bifurcated on the issue of whether the Domestic Service Exception applies. On 

January 13, 2017, the WCJ denied the Claim Petition, concluding that Claimant was 

engaged entirely in domestic service. Claimant appealed to the Board. On July 17, 

2018, the Board 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 person 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 the [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 contends 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 compensated under the Act. Claimant 

maintains that the test should follow the precedent and define domestic service as 

 

3

“On review[,] this Court must determine whether constitutional rights were violated, errors 

of law were committed, or necessary 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 undisputed that Employer did not elect to come within the Act’s provisions.
3

including the 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 maintains that Claimant is a domestic servant.

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

caretaker for a woman suffering from dementia fall within the Domestic Service 

Exception. However, the interpretation of what precedent 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 exclusion 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 

conditions 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 borne 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 from 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, the 

“[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. Based 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 Pennsylvania 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 serves (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 ‘pertaining 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, 1972, P.L. 159.
5

construing the Act, is 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 household. 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 flowers 

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. Belin’s Estate, 27 A.2d 455, 457 (Pa. Super. 1942) (emphasis added). Based 

thereon, the Superior Court 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 Viola 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 invalid 

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 Viola 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 by 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 duties similar to those of a nurse’s aide, . . . and did not 

involve performing household duties, we conclude that [c]laimant was not engaged in 

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

This Court next addressed the Domestic Service Exception 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 

Referee’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, house cleaning, banking and grocery shopping for her neighbor 

at her neighbor’s home; and (3) house cleaning on Saturdays for her employer’s wife.

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

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

work that served 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 that claimant babysat her grandson only 

from the time she finished work until the time her daughter-in-law could pickup the child. Thus, the Court held that the Act does not require coverage for 
7

babysitters who work for employers who have not elected to come within the 

provisions of the Act. Id. 

This Court most recently addressed the Domestic Service Exception in 

Fletcher v. Workers’ Compensation Appeal Board (Saia) (Pa. Cmwlth. No. 1664 

C.D. 2009, filed March 26, 2010). In addition to deciding whether the claimant was 

an employee or an independent contractor, the Court 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 issue. 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 the 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 Court’s current analysis.

The law is well-settled that “whether 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 aide whose 
8

duties are within the purview of the Act, than a babysitter whose 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 agrees

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, the WCJ

determined that Claimant was credible. See WCJ Dec. at 4. The WCJ found as 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 that [] 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 would 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 acknowledged 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) (emphasis added; record citations omitted). 

Claimant does not dispute these findings.

The 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 that 
9

Claimant’s main responsibility was to get Hudson ready for bed and make sure she 

stayed in bed throughout the evening, we discern no error in the WCJ’s conclusion. 

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

from mild dementia falls within the Domestic Service Exception.

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

___________________________

ANNE E. COVEY, Judge
IN 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 27th day of February, 2019, the Workers’ 

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

___________________________

ANNE E. COVEY, Judge