Primarily because of the employer’s ownership and control of the availability and use of its trucks, the decedent driver of a tow truck was an employee at the time of his work-related fatality.

The decedent’s fiancé filed a fatal claim petition, alleging the decedent was working for the employer as a tow truck operator when he became pinned between two vehicles, causing him to suffer fatal injuries. The employer and the Uninsured Employer’s Guaranty Fund (UEGF) answered the petition, denying liability and that there was an employer-employee relationship.

At the Workers’ Compensation Judge level, evidence was presented on a number of factors concerning an employment relationship or lack thereof, including the tow trucks, tools, work schedule, job duties, training and supervision, uniforms, payment, independent contractor agreements and workers’ compensation insurance. The judge granted the petition, finding the existence of an employer-employee relationship. On appeal, the Appeal Board affirmed.

At the Commonwealth Court, the employer argued that based on the existence of a written independent contractor agreement, pay and tax arrangements, the lack of a regular schedule or actual supervision of towing and service jobs, and the decedent’s freedom to pursue work or income from other sources, the judge and the Board erred in finding that the decedent was an employee.

Conversely, the claimant argued that the judge correctly found an employment relationship, citing a prior tow truck case, Sarver Towing v. WCAB (Bouser), 730 A.2d 61 (Pa. Cmwlth. 1999) wherein the Commonwealth Court held that the employer exercised substantial control over the claimant and the manner in which he performed his work by limiting his use of trucks to work its tow jobs, requiring him to be on call 24/7, and maintaining their ability to take back the truck and equipment at any time if not satisfied with the work. The court further noted in that decision that it was the existence of the right to control the manner of a claimant’s work which was critical, even when that right was not exercised.

The court concluded that the Workers’ Compensation Judge properly weighed all of the evidence and properly concluded that, although there was not micro-management of any individual tow job, the employer maintained extensive dominion over the decedent’s work day. The judge noted that the employer’s name and information was highly visible on the trucks and the employer exercised a significant degree of control over how drivers could and could not use the trucks. For example, drivers could not loan the trucks out or use them for other jobs, and if at any time a driver declined more calls than the employer preferred, the employer could stop assigning calls to the driver and reclaim its truck. The judge found that these facts overrode the existence of other facts mitigating in favor of contractorship, such as a written independent contractor agreement and payment by job rather than by time. The Commonwealth Court held that they were bound by the judge’s factual and credibility determinations in this fact-specific case.

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