A workers’ compensation judge did not abuse his discretion in finding that decedent was in an ongoing employment relationship with defendant at the time of death and was not a borrowed servant at the time of his fatality.

This case involved two companies involved in coal mining operations, West Spring and Reading Anthracite Company (RAC). The decedent was employed by West Spring as an equipment operator, but he had been scheduled to be laid off. RAC needed a bulldozer operator, and the decedent was directed to report to RAC for a bulldozer operator assignment. He did so, and on July 25, 2017, he was fatally injured while operating a bulldozer. 

West Spring and its workers’ compensation insurer filed a Notice of Temporary Compensation Payable (NTCP) and began paying the decedent’s widow benefits. The NTCP subsequently converted. 

RAC’s insurer later filed a Notice of Compensation Denial (NCD) on the basis that no policy was in effect on the date of the accident. RAC then filed a subsequent NCD on the basis that the decedent was not an employee of RAC. 

In 2019, the claim representative for West Spring’s insurer entered into an agreement with the widow, acknowledging the decedent’s fatal injuries. 

In February 2020, the United States Secretary of Labor filed a Motion to Approve a Settlement between the Mine Safety and Health Administration and RAC. The settlement indicated that the decedent was working under RAC’s direct control and supervision at the time of death. 

Thereafter, West Spring filed a review petition and joinder petition against RAC, alleging that RAC and their insurer were responsible for the payment of benefits. Subsequently, the widow and West Spring’s insurer entered into a stipulation resolving a separate review petition filed by the widow, wherein it was agreed that West Spring’s insurer would pay ongoing fatal claim benefits to the decedent’s three dependent children.
    
The workers’ compensation judge denied the joinder and review petitions, concluding that West Spring failed to show that there was either a material mistake of fact at the time it issued its NCP or that there was insufficient time to investigate the claim before West Spring accepted it. Appeals and cross-appeals were filed with the Workers’ Compensation Appeal Board, which affirmed. Appeals were then filed with the Commonwealth Court.

The Commonwealth Court held that the workers’ compensation judge did not abuse his discretion in finding that there was not a material mistake of fact in existence at the time that West Spring issued the NCP or by finding that there was sufficient time to investigate the identity of the decedent’s employer. The court pointed out that in his decision, the judge explained that more than two years after the accident, the claims representative from West Spring’s insurer entered into the agreement with the widow. Further, there was evidence showing that the decedent remained on the payroll of West Spring up until the date of death and that no determination had been made as to whether the decedent would be permanently transferred to RAC. According to the court, the judge properly determined that there was an ongoing relationship between the decedent and West Spring at the time of death. The court additionally held that the judge properly found that West Spring’s insurer took adequate and sufficient time to investigate the issue of the decedent’s employment, again pointing out the agreement between the claims adjuster for West Spring’s insurer and the widow two years after the accident. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 8, August 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}