630 A.2d 547 | Pa. Commw. Ct. | 1993
Industrial Abrasives, Inc. (Employer) appeals from an order of the Workmen’s Compensation Appeal Board (Board) affirming the referee’s grant of benefits to Franklin Caceres (Claimant). We affirm.
Claimant worked as a full-time machinist in Employer’s abrasives factory. In addition, Claimant worked a separate, part-time job for Employer boarding certain windows outside Employer’s factory. Originally, Claimant agreed to board the windows after Employer’s regular business hours. Claimant received $35.00 for each window boarded in a separate check which did not include his full-time machinist’s salary.
On September 21, 1990, Employer asked Claimant to perform work on the windows during normal business hours. As Claimant boarded a window on the third floor of Employer’s factory, the boom on the “cherry picker” in which he stood collapsed and fell. As a result, Claimant suffered numerous and severe injuries.
On appeal to this Court,
The term “employe”, as used in this Act is declared to be synonymous with servant, and includes — -all natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer____
77 P.S. § 22.
Pennsylvania courts have construed this statute narrowly concluding that claimants are entitled to compensation unless they are found to be both casual employees and acting not in the regular course of the employer’s business. See Gill v. Workmen’s Compensation Appeal Board, (Norton), 57 Pa.Commonwealth 161, 425 A.2d 1206 (1981); Barnett v. Bowser, 176 Pa.Superior 17, 106 A.2d 457 (1954). Thus, the first
The referee found that an employer/employee relationship existed because Claimant boarded the windows, on the clock, dining regular business hours. Moreover, the record reveals that Claimant used equipment rented by Employer and operated by Claimant’s supervisor at the time of the accident. Further, Employer presented no testimony to show that Claimant was not being paid his normal rate of pay at the time of the accident. Finally, immediately after the accident, Employer asserted to hospital personnel and police that Employer employed Claimant at Employer’s factory. Thus, the referee’s finding of fact that an employer/employee relationship existed is properly supported by substantial evidence and Claimant is, therefore, entitled to compensation.
Assuming, arguendo, that Claimant’s boarding of the windows could some how be considered an activity separate from Claimant’s full-time job as a machinist, Claimant can still
As to what constitutes an employment casual in character, it is obvious that the term “casual” is not capable of scientific definition. Involved in it are the ideas of fortuitous happening and irregularity of occurrence; it denotes what is occasional, incidental, temporary, haphazard, unplanned. Applying it as practically as possible to the subject of employment, it may be said that if a person is employed only occasionally, at comparatively long and irregular intervals, for limited and temporary purposes, the hiring in each instance being a matter of special engagement, such employment is casual in character. On the other hand, even though an employment is not continuous, but only for the performance of occasional jobs, it is not to be considered as casual if the need for the work recurs with a fair degree of frequency and regularity, and, it being thus anticipated, there is an understanding that the employee is to perform such work as the necessity for it may time to time arise. Even if there be but a single special job involved, this does not conclusively stamp the employment as casual. If the work is not of an emergency or incidental nature but represents a planned project, and the tenure of the service necessary to complete it and for which the employment is to continue is of fairly long duration, the employment is not casual, and it is immaterial that the accident to the employee for which compensation is sought may occur within a short period after his entry upon the work.
Id. at 552-553, 16 A.2d at 44-45.
In the case at bar, Cochrane is dispositive. Employer’s president testified that the boarding of the factory windows was a project which had been planned in advance. Claimant had worked at boarding these windows over a three month period from June until September. Even though Claimant
Accordingly, we affirm.
ORDER
AND NOW, this 12th day of August, 1993, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is hereby affirmed.
. Our scope of review is limited to a determination of whether constitutional rights have been violated, whether the adjudication was in accordance with law and whether the referee’s findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 22.
. In the past, we have held that a claimant who had worked for an employer for two days was not a casual employee. Wingert & Brechbill v. Workmen’s Compensation Appeal Board (Group), 44 Pa.Commonwealth Ct. 55, 402 A.2d 1157 (1979).
. Having concluded that substantial evidence exists in the record that Claimant was not a casual employee, we need not reach the issue of whether Claimant’s boarding of windows can be considered an activity in the regular course of Employer’s business. Gill; Barnett.