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Casual Employment: A Creative Way for Employers to Avoid Workers’ Compensation Liability

The Pennsylvania Workers’ Compensation Act only applies to the employees of an employer.  The injured worker has the burden of proof to establish that an employment relationship existed at the time of the accident.  The determination regarding the existence of an employer-employee relationship is a question of law determined on the unique facts of each case.  Although there are a number of factors Courts will review, the key factor when analyzing any employment relationship is the right to control the work being completed and the manner in which it is to be performed.

The Pennsylvania Workers Compensation Act does not apply to employees whose work is deemed casual in nature and not in the regular course of the business of the employer. This exclusion is intended to extinguish the primary income-producing activity of an employer from other operations which, while perhaps necessary, are clearly incidental to the main function of the employer’s business.  Casual denotes a fortuitous happening, an irregular occurrence which is occasional, incidental, temporary, haphazard, unplanned and with no fixed duration of time.

The problem with casual employment is that often, this is the only type of employment certain individuals can obtain.  So if an accident occurs while someone is performing labor deemed casual in nature, workers compensation coverage may not available.  Since these cases are to be analyzed on a case by case basis, the specific facts of each case are critical.  The focus should be placed on the relationship between the employer and employee, the method of control over the jobsite and performance, whose tools and resources are used at the jobsite, the frequency within which the services are performed and the arrangements that are made for future services.  A request should be made with the Judge to bifurcate the issue of the employment relationship for a speedy decision separate from any medical evidence that may ultimately not be necessary dependent upon the Judge’s ruling on the employment issue.

Jonathan B. Koutcher, Esquire
PearsonKoutcher, LLP
Email Jon: Jon@pearsonkoutcherlaw.com

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