106 A.3d 251
Pa. Commw. Ct.2014Background
- Claimant Popchocoj sustained a July 5, 2010 work injury while performing construction for Rodrigues, leading to amputations of his right pinky finger and thumb.
- Claimant filed a claim petition on August 2, 2010; the Fund filed a claim to join Zwick as an additional defendant on October 15, 2010; the WCJ consolidated the petitions.
- Rodrigues was uninsured; Claimant alleged Roth/ Rodrigues as employer and the Fund as secondary payer; WCJ found Rodrigues primarily liable and Fund secondarily liable, dismissing Fund’s joinder.
- WCAB reversed in part, finding Zwick was a statutory contractor under §302(a) and that, if Rodrigues defaults, Zwick is secondarily liable, with Fund potentially secondarily liable if both default.
- Zwick petitioned for review arguing §302(a) does not apply and §302(b) should control; court held §302(a) applies, as construction rehabilitation is a regular part of Zwick’s business.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper statutory-employer basis under 302(a) vs 302(b)? | Zwick argues §302(b) should apply due to lack of site control. | Zwick contends §302(a) applies because he contracts to have work part of his regular business. | §302(a) applies; Zwick is a statutory employer. |
| Whether §302(a) covers construction rehabilitation as a regular part of business? | Construction rehab is not a regular part of Zwick’s business. | Rehabilitation of properties for resale is regular work in Zwick’s business. | Construction rehab qualifies as a regular part of Zwick’s business; §302(a) applies. |
Key Cases Cited
- Six L’s Packing Co. v. Workers’ Compensation Appeal Board (Williamson), 44 A.3d 1148 (Pa. 2012) (§302(a) applies to subcontracted work that is a regular or recurrent part of the employer’s business)
- Leibensperger v. Workers’ Compensation Appeal Board (Thomas H. Lewis Builders, Inc.), 813 A.2d 28 (Pa.Cmwlth.2002) (requires actual control for §302(b) applicability)