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Gann v. Workers' Compensation Appeal Board2/26/2002
Verlin Gann and MBS Management (MBS) petition for review of a decision of the Workers' Compensation Appeal Board (Board) that reversed a decision of a Workers' Compensation Judge (WCJ) which found that MBS is Gann's statutory employer and is responsible for paying Gann's workers' compensation benefits. Gann contends that the Board erred in reversing the WCJ's decision because the WCJ's finding that MBS acted as the general contractor on the subject construction project in Murrysville, Allegheny County, Pennsylvania, was supported by substantial evidence in the record and because the WCJ's conclusion that MBS was Gann's statutory employer was correct as a matter of law.
I.
The injury giving rise to this worker's compensation case occurred on July 31, 1995 at the Colony Court condominium construction project (hereafter "project"). For several weeks prior to the day of the injury, Gann worked as a construction laborer for the general contractor at the project. On the day in question, however, Ray Novak, the general contractor's superintendent, advised Gann to work for Watts Builders (Watts), an uninsured subcontractor performing framing work at Colony Courts. Novak advised Gann that Watts would be able to pay Gann more than the general contractor. Gann heeded Novak's advice and went to work for Watts. While employed by Watts that day, Gann slipped on sawdust and fell forty feet off of a roof, sustaining facial disfigurement, injuries to both of his hands, wrists, legs and feet and injuries to his torso. Gann underwent surgeries on his wrists for fractures and dislocation, left knee and left elbow and on his face. He now has steel plates inside his legs, and at the time of the first hearing he walked with a brace.
The essential question in this case is which of two legal entities was the general contractor for the project and therefore potentially liable for the payment of workers' compensation benefits. Stuart J. Barman controls both of these legal entities. They are MBS, which Barman controls as the president and 50 percent shareholder, and Wellington East Development, Limited Partnership (Wellington Partnership), which Barman controls as the president and 50 percent shareholder of its general partner, Wellington East Development Corporation (Wellington Corporation). The question of which entity was the general contractor is essential to the outcome of this case due to the rule that excludes property owners from statutory employer status. See Smith v. Workmen's Compensation Appeal Board (Miller), 618 A.2d 1101 (Pa. Cmwlth. 1992). Wellington Partnership owns Colony Court, and thus Gann cannot hold Wellington Partnership liable as the statutory employer if it was the general contractor. No such bar prevents Gann from holding MBS liable as the statutory employer if MBS was the general contractor.
Gann filed a claim petition against Watts, Wellington Corporation and MBS. Watts failed to file an answer. Wellington Corporation and MBS denied the allegations in Gann's claim petition. By decision dated September 9, 1996, the WCJ granted Gann's claim petition and found MBS liable as Gann's statutory employer for payment of workers' compensation benefits of $254.50 per week, plus 10 percent interest on all deferred compensation. She also ordered 12 weeks of compensation for Gann's unsightly and disfiguring scar on his face. On June 22, 1998, the Board vacated the WCJ's decision and remanded the matter for the WCJ to make findings concerning whether the necessary elements of a statutory employer relationship were present. By decision dated February 4, 1999, the WCJ determined on remand that the necessary elements were present and decided again that MBS is Gann's statutory
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