IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wilfredo Ayala, :

Petitioner : No. 1037 C.D. 2022

 : Submitted: April 28, 2023

v. : 

: 

Fundamental Labor Strategies, Inc. :

(Workers’ Compensation Appeal :

Board), :

Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WALLACE FILED: January 2, 2024

Wilfredo Ayala (Claimant) petitions for review of the order of the Workers’ 

Compensation Appeal Board (Board) dated August 31, 2022, which affirmed the 

decision and order of a workers’ compensation judge (WCJ), circulated February 16, 

2022 (WCJ’s Decision). On appeal, Claimant argues it was error for the Board to 

affirm the WCJ’s finding he was an independent contractor at the time of his injury

and, therefore, not entitled to workers’ compensation (WC) benefits. After review, 

we affirm the Board’s order.
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BACKGROUND

 Claimant, a commercial truck driver, began working as a delivery driver for 

Fundamental Labor Strategies, Inc. (FLS) in March 2019. Certified Record (C.R.), 

Item No. 13. On February 17, 2021, Claimant filed a claim petition alleging on 

February 6, 2020, he sustained a lumbar disc injury while unloading a window 

during the course and scope of his employment with FLS. Id. Claimant then filed a 

petition for penalties alleging FLS violated the Pennsylvania Workers’ 

Compensation Act1 by failing to timely file Bureau of Workers’ Compensation 

documents accepting or rejecting liability for his work injury. Id. Claimant filed an 

additional claim petition alleging that also on February 6, 2020, he sustained 

adjustment disorder with anxious and depressed mood and chronic pain syndrome 

from his work injury. Id. After each of Claimant’s filings, FLS filed an answer 

denying an employment relationship with Claimant.

In support of his two claim petitions, Claimant testified FLS was not a motor 

carrier, and explained FLS sent him to different driving assignments with various

clients. Id. After finishing his previous assignment, FLS emailed Claimant his 

assignments for the next day, which included the required arrival time, the address, 

and the items he was to deliver. Id. Claimant first testified he was permitted to 

accept or reject assignments, but later testified he did not feel he could decline an 

assignment. Id. When carrying out an assignment, Claimant received routing 

instructions from the motor carrier, and he drove trucks owned by the clients. Id.

Regarding his employment relationship with FLS, Claimant understood FLS

treated him as an independent contractor, and he had worked as an independent 

contractor for other companies. Id. Claimant testified FLS provided him a hat with 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. 
3

FLS’s logo, but he was not required to wear it. Id. Claimant never drove a truck 

owned by FLS or displaying FLS’s logo. Id. FLS paid Claimant by check and 

Claimant understood FLS made no tax deductions, and he was responsible for 

paying his own taxes. Id. Claimant admitted he signed an independent contractor 

occupational accident insurance enrollment form in March 2019, but claimed he did 

not understand FLS would take deductions from his pay for the insurance. Id. 

In response, Curtis Ball (Ball), the president of FLS, testified FLS is a 

transportation broker with two brokerage services. Id. FLS offers a dedicated driver 

service, which private motor carriers use to haul their own goods, rather than hauling 

another’s goods for a fee. Id. Ball testified FLS considers dedicated service drivers 

employees of FLS and closely manages them. Id. FLS dictates the assignments and 

hours of dedicated service drivers, and these drivers are required to report to work 

to perform their assignments. Id. The dedicated service drivers receive life 

insurance, disability insurance, and health benefits, and are subject to FLS’s internal 

rules and regulations. Id. They also receive W2 tax forms. Id. 

Ball explained the other service offered by FLS is the flex driver brokerage 

service. Id. This service matches motor carriers having a short term need for a driver 

with drivers who want to work. Id. These assignments can range from a day to a 

week or a month. Id. Ball indicated flex drivers determine how much they want to 

work. Id. The flex drivers transport themselves to the clients’ locations and drive 

the clients’ vehicles. Id. The client provides any trip sheet or routing information. 

Id. The motor carrier or shipper sets the start time for the job and the number of 

stops to be made during the assignment. Id. Flex drivers are paid a flat fee and 

receive a 1099 tax form. Id. Flex drivers are free to accept or reject assignments. 

Id. In order to provide flex drivers with as much information as possible to make 
4

decisions about accepting assignments, FLS obtains as much information about the 

assignment from the client as possible including the work days available, the start 

times, the equipment that will be operated, the number of deliveries to be made, 

whether the equipment is temperature controlled, the type of transmission in the 

vehicle, and any other relevant information. Id. There are no repercussions if a flex 

driver rejects an assignment. Id. Additionally, flex drivers are permitted to drive

for other companies. Id. 

Regarding Claimant’s work with FLS, Ball testified Claimant was a flex 

driver and received driving assignments from FLS in 2019 and 2020. Id. Claimant 

executed a W2 in July 2018 on which he indicated he was a sole proprietor or LLC. 

Id. Additionally, Ball testified Claimant executed an application for independent 

contractor occupational accident insurance. Id. In his testimony, Ball explained flex 

drivers provide FLS with proof they are insured so FLS knows the driver is covered 

in the event of a loss, but FLS does not provide coverage or require specific accident 

insurance coverage for flex drivers. C.R., Item No. 26. Ball testified that as a flex 

driver, Claimant was permitted to accept or reject assignments, and he had 

documentation Claimant rejected 11 assignment offers. C.R., Item No. 13. There 

were no repercussions for Claimant rejecting the assignments. Id. 

Based on the testimony presented, the WCJ found Claimant did not establish 

an employment relationship with FLS and dismissed Claimant’s claim petitions and 

petition for penalties. Id. The WCJ noted that to the extent “Claimant and [Ball’s 

testimony] differs, [Ball’s] testimony is accepted as credible, particularly where he 

testified that there were at least 11 instances of refused assignments, but ongoing 

assignments offered to Claimant.” Id. The WCJ found Ball’s testimony regarding 
5

the flex driver program crucial in establishing Claimant was an independent 

contractor rather than FLS’s employee. Id. 

Claimant appealed to the Board. Ultimately, the Board determined the WCJ 

did not err in finding Claimant was an independent contractor. C.R., Item No. 16. 

The Board rejected Claimant’s challenges to the WCJ’s weight and credibility 

determinations, which determinations are binding on appeal. Id. Noting the WCJ’s 

findings were supported by substantial, competent evidence, the Board affirmed the 

WCJ’s Decision. Id. 

Claimant now petitions this Court for review of the Board’s order. On appeal, 

Claimant argues the Board erred in concluding he was an independent contractor at 

the time of his injury. Claimant’s Br. at 10. Specifically, Claimant contends he was

not an independent contractor because FLS exercised control over his work. Id. at 

18. In response, FLS contends the Board properly affirmed the WCJ’s Decision as 

substantial evidence supported the WCJ’s finding Claimant was an independent 

contractor. FLS’s Br. at 6. 

DISCUSSION

Our review in WC appeals 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.” Pierson v. Workers’

Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d 1169, 1172 n.3 (Pa. 

Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021). Relevant to this appeal, the 

question of whether an employee-employer relationship exists is a question of law

subject to our plenary, de novo review. Am. Rd. Lines v. Workers’ Comp. Appeal 

Bd. (Royal), 39 A.3d 603, 610-11 n.6 (Pa. Cmwlth. 2012). However, where 

substantial evidence supports the WCJ’s findings, we defer to those findings as the 
6

WCJ is the ultimate fact finder in workers’ compensation cases and “has exclusive 

province over questions of credibility and evidentiary weight.” Anderson v. 

Workers’ Comp. Appeal Bd. (Penn Ctr. for Rehab.), 15 A.3d 944, 949 (Pa. Cmwlth. 

2010). The WCJ is free to accept or reject the testimony of any witness, Edward v. 

Workers’ Compensation Appeal Board (Epicure Home Care, Inc.), 134 A.3d 1156, 

1161 (Pa. Cmwlth. 2016), and this Court is bound by those credibility 

determinations. A&J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 

1233 (Pa. Cmwlth. 2013). 

For a claimant to receive WC benefits, the claimant must prove an employeremployee relationship exists because “[a]n independent contractor is not entitled to 

benefits.” Universal Am-Can v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 

328, 330 (Pa. 2000). Whether an employer-employee relationship exists depends on 

the unique facts and circumstances of each case. 3D Trucking v. Workers’ Comp. 

Appeal Bd. (Fine and Anthony Holdings Int’l), 921 A.2d 1281 (Pa. Cmwlth. 2007). 

In considering whether a claimant is an independent contractor versus an employee, 

we 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 job; (9) 

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

right to terminate employment. 

Am. Rd. Lines, 39 A.3d at 611 (internal citation omitted). While no factor is 

dispositive, control over the work and the manner it is performed are primary factors 

in determining employment status. Universal Am-Can, 762 A.2d at 333. Where an 

alleged employer has the right to select the employee, the right and power to 
7

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

power to control the employee, there is sufficient control to establish an employeremployee relationship. 3D Trucking, 921 A.2d at 1288. Additionally, payment of 

wages and payroll deductions are a significant consideration, as is a tax filing noting 

self-employment. Id. See also Guthrie v. Workers’ Comp. Appeal Bd. (The 

Travelers’ Club, Inc.), 854 A.2d 653, 662-63 (Pa. Cmwlth. 2004). 

Because of the relationships among drivers, owner-operators and motor 

carriers and the thorough regulation of them, the trucking industry presents unique 

challenges in determining whether an employer-employee relationship exists. Am. 

Rd. Lines, 39 A.3d at 611. In these cases, in addition to the previously outlined 

factors, we also consider the degree of supervision and control over delivery routes 

and the timing of work or schedule. Id.

Here, the WCJ analyzed and weighed the testimony and each of the WCJ’s 

findings are supported by evidence in the record. See generally C.R., Item No. 13. 

Accordingly, we conclude substantial evidence supports the WCJ’s factual findings 

about Claimant’s employment relationship with FLS. Because the Board is bound 

by the same standard of review we are, it did not err in reaching the same conclusion. 

Turning to the WCJ’s legal conclusion Claimant was an independent 

contractor, we note the WCJ rejected Claimant’s testimony to the extent it conflicted 

with Ball’s testimony. Ball testified Claimant had no guarantee of work and was 

free to refuse work or even work for another company. He also testified FLS paid 

Claimant by check and took no tax deductions, instead FLS provided Claimant a 

Form 1099 and he was responsible for paying his own taxes. As to the amount of 

control, FLS provided Claimant with assignments and information from the client 

about pick-up and drop-off locations. While requests about the manner of work may 
8

have come from the clients, FLS did not dictate to Claimant which assignments to 

accept, how to complete the assignments, what routes to travel, and what times to 

drive each day or for how long. FLS did not provide a uniform or the vehicles for 

Claimant to drive, nor did FLS train Claimant. While none of these facts are

individually dispositive, taken as a whole, these findings reflect Claimant controlled 

the time and manner of his work, primarily by his ability to accept or reject 

assignments. 

In analyzing the WCJ’s legal conclusion Claimant was an independent 

contractor at the time of his injury, the Board explained: 

Herein, the WCJ credited the testimony of Claimant and [Ball] that 

Claimant signed an independent contractor occupational accident 

insurance form so he would have his own insurance in the case of an 

accident since he was treated as an independent contractor with [FLS] 

similar to his prior independent contractor driving jobs. Additionally, 

the credible testimony of Claimant and [Ball] supports the Claimant did 

not drive [FLS’s] truck, since [FLS] did not own any trucks, trailers, or 

warehouses, and the hat provided by [FLS] with the company logo on 

it was a gift which was not required to be worn by Claimant during 

driving assignments as a uniform. Moreover, the credible testimony 

establishes that [FLS] had no control over Claimant’s daily routes, 

starting or ending times, etc., and that Claimant was entitled to, and in 

fact took advantage of, rejecting job assignments without 

repercussions. This credible evidence constitutes substantial evidence 

to support the WCJ’s finding that Claimant was an independent 

contractor rather than an employee for [FLS] based on the terms of the 

agreement that Claimant would be an independent contractor for [FLS], 

that [FLS] did not supply Claimant’s tools to perform his job, and [FLS] 

did not retain control [over] the manner of Claimant’s driving on 

assignments. Consequently, the WCJ properly determined Claimant 

failed to meet his burden establishing an employment relationship with 

[FLS].

C.R., Item No.16. We agree with the Board’s determination. 
9

CONCLUSION

Because this Court may not reweigh the evidence or second-guess the WCJ’s 

credibility determinations, and because substantial evidence in the record supports 

the WCJ’s findings of fact and conclusions of law, we discern no error by the Board 

in affirming the WCJ’s Decision Claimant was an independent contractor. As an 

independent contractor, Claimant was not entitled to WC benefits. Accordingly, we 

affirm the Board’s Order. 

______________________________

STACY WALLACE, Judge

Judge Fizzano Cannon did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wilfredo Ayala, :

Petitioner : No. 1037 C.D. 2022

 : 

v. : 

: 

Fundamental Labor Strategies, Inc. :

(Workers’ Compensation Appeal :

Board), :

Respondent :

O R D E R 

 AND NOW, this 2nd day of January 2024, the Order of the Workers’ 

Compensation Appeal Board dated August 31, 2022, is AFFIRMED. 

______________________________

STACY WALLACE, Judge