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FORREST HOLLEN v. WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN DOSPOY (06/21/74)

decided: June 21, 1974.

FORREST HOLLEN, T/A PENNZOIL, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN DOSPOY, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Dospoy v. Forrest Hollen, t/a Pennzoil, No. A-66629.

COUNSEL

Edward F. Peduzzi, with him Myers, Taylor & Peduzzi, for appellant.

Francis J. Leahey, Jr., with him Englehart, Creany, Englehart & Leahey, for appellee.

Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 14 Pa. Commw. Page 210]

On May 14, 1971, John Dospoy (Claimant) suffered severe facial, leg and hand burns when a hot-water furnace exploded in the basement of a service station operated by Forrest Hollen (t/a Pennzoil, hereinafter "Hollen"). The issues for our decision are 1) whether claimant was an employe of Hollen at the time of his injuries, and 2) whether the injuries were the product of an accident*fn1 sustained by Claimant in the course of his employment, thus entitling him to compensation under the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, 77 P.S. §§ 1 et seq.

The Referee and the Workmen's Compensation Appeal Board answered both questions affirmatively. Although

[ 14 Pa. Commw. Page 211]

    the testimony of Claimant and Hollen is contradictory relative to Claimant's employment status at the time of his injury, the Referee chose to believe Claimant; and our development of the factual background of the case is necessarily based upon the extensive findings of fact made by the Referee, which we find amply supported by competent evidence. Barnold Shoes, Inc. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 73, 308 A.2d 189 (1973); Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).

The record reveals that Claimant, then age 16,*fn2 began doing small jobs without pay around Hollen's service station in the Fall of 1970. Approximately four or five months before his accident, Claimant was in fact hired by Hollen at a salary of $1.00 per hour for part-time employment after school and on weekends. The Referee found that Hollen supervised Claimant's work, maintained independent time records, and paid Claimant on a two-week basis. Hollen, however, did not deduct federal income taxes or social security from Claimant's salary, or otherwise list Claimant as an employee for tax purposes.

On the day of the accident, May 14, 1971, Claimant worked five or six hours, and arrived home around 11:00 P.M. The Referee further found that Hollen called Claimant at home that night and asked Claimant and an older brother (whom Hollen admits was an employee) to accompany him to the station to verify the volume of gas pumped that day. Claimant and his brother were picked up by Hollen and arrived at the station at approximately 11:30 P.M. Upon entering the station they noticed that the radiators were overheating,

[ 14 Pa. Commw. Page 212]

    and Hollen suggested that they check the furnace in the basement. As Claimant was about to open the furnace door, it exploded in his face, showering him with flames and debris. The burns suffered by Claimant in the explosion have stabilized into thick, hypertrophic scarring of the ...


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