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In Mooney v. WCAB (County of Schuylkill), the Pennsylvania Commonwealth Court held that a person injured while performing court-ordered community service was not an employee of the county that supervised the rehabilitative program. William Mooney filed a claim petition against Schuylkill County alleging that he sustained a work-related injury on Jan. 25, 2003. The county did not deny that Mooney was injured, but defended the petition asserting that Mooney was not a county employee at the time of his injury. Most of the facts of the case were not in dispute. Sometime prior to Jan. 25, 2003, a Schuylkill County Common Pleas Court judge entered an order placing Mooney, a criminal defendant, into the Accelerated Rehabilitative Disposition Program. Pursuant to the judge’s order, Mooney was to serve 12 months of probation, during which he was to perform a total of 21 hours of community service. On Jan. 25, 2003, as part of a group performing community service work at St. John the Baptist Church, Mooney was directed by a county employee, Scott Siket, to paint a particular area of the church building. While he was painting, the ladder slipped out from underneath him and Mooney injured his left arm. As a result, Mooney was completely disabled from his regular job from Jan. 27, 2003, through Feb. 26, 2003, after which he returned to work with no loss of earnings. Mooney acknowledged he received no wages or other payments from the county for the work he performed on the day of his injury, but claimed nonetheless that he was an “employee” of the county for workers’ compensation purposes. Employers are only required to pay benefits to employees, as that term is defined by the Pennsylvania Workers’ Compensation Act, and the county took the position that Mooney was not an employee of the county at any time. Mooney argued that the fact that the county did not pay him wages is not determinative of whether he was a county employee; rather, Mooney maintained that the determinative factor is the right of control. According to Mooney, the county maintained such control because it provided the workers and, through Siket, directed, supervised and coordinated the community service program in which Mooney participated. Mooney testified that the county did have some termination rights, as it retained the authority to remove argumentative or uncooperative participants. Mooney also asserted that, although he did not receive actual wages, he did receive “valuable consideration” from the county in exchange for his work. Mooney argued that if he did not comply with the terms of the community service portion of the ARD Program, he could be charged with his underlying crimes, suffer jail time and be found in contempt. On the other hand, by complying, Mooney could receive the benefit of having the criminal charges against him dismissed and his arrest record expunged. In opposition to Mooney’s claim petition, the county presented the testimony of Siket, the coordinator of the county’s community service program, who explained that it never “hired” Mooney. It is the trial court, not the county, who selects an individual for the community service program. Siket further testified that he did not have authority to terminate any individual involved in the community service program and that individuals in the community service program are not county employees and do not receive wages, earnings or other remuneration from the county. Siket stated he supervised and coordinated the work at the building and was present when Mooney fell from the ladder. However, it was the church sexton who met the workers when they arrived at the church and told them what areas of the building were to be painted that day. Additionally, the church sexton provided the necessary materials and equipment, including paint and ladders. Another county employee, Thomas White, provided testimony that corroborated Siket’s testimony, and confirmed that the county itself does not receive any benefit from the work performed by the individuals in the community service program. After reviewing the evidence, the WCJ found Mooney’s testimony credible regarding the occurrence of his injury and related medical treatment and disability. However, the WCJ accepted the remainder of Mooney’s testimony only to the extent it was not inconsistent with the credible testimony of the county’s witnesses, Siket and White. Accordingly, the WCJ found that Mooney sustained an injury to his left upper extremity while in the course of performing community service on Jan. 25, 2003, but also specifically found that the county had no interest in the church and received no benefit from Mooney’s community service. Additionally, the WCJ found that Mooney did not receive any wages, remuneration or other benefit from the county for his community service and, therefore, was not performing services for the county for “valuable consideration” as required by �104 of the Workers’ Compensation Act. Section 104 declares an employee to be synonymous with a servant and defines the term as: “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.” The WCJ also found that the county neither selected nor hired Mooney for its community service program; the county could not terminate Mooney from its community service program; and the county did not control the work to be performed or the manner in which the work was performed in its community service program. Thus, the WCJ denied and dismissed Mooney’s claim petition because he concluded that Mooney was not a county employee at the time of the accident. Mooney appealed the WCJ’s order to the WCAB, which affirmed. Mooney then appealed to the Commonwealth Court, which has now also affirmed. Citing the Supreme Court’s decision in Universal Am-Can Ltd. v. Workers’ Compensation Appeal Board (Minteer), the court reaffirmed that “the existence of an employer/employee relationship is a question of law that is determined on the unique facts of each case.” Here, Mooney was painting at the church as part of his ARD Program, and county employee Siket supervised and coordinated the ARD Program work at the church. However, contrary to Mooney’s assertion, the county had no control over Mooney’s participation in the ARD Program; the county did not select Mooney for its community service program and did not have the authority to terminate Mooney from that program. Rather, it was Mooney who, with the trial court’s authorization, voluntarily chose to participate in the ARD Program. The court also found it noteworthy that the painting “services” performed by Mooney were not for the benefit of the county and were not performed for a valuable consideration within the meaning of �104 of the act. Citing its own decision in SKF USA Inc. v. Workers’ Compensation Appeal Board (Smalls), the court concluded that although Mooney may have received something he considers valuable by participating in the ARD Program, where, as here, one of the parties is already legally bound to render the performance promised, there is no consideration for such “services.” Because Mooney did not perform services for the county for a valuable consideration, he was not an “employee” of the county and, therefore, was not entitled to benefits. Matthew S. Wynn is a founding partner in Wynn McGarry, a litigation boutique located in King of Prussia, Pa., and head of the firm’s workers’ compensation practice group. He is the defense co-chairman of the workers’ compensation section of the Philadelphia Bar Association and has represented employers, insurers and third-party administrators in workers’ compensation litigation since 1991. He can be contacted via e-mail at [email protected].

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