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MILLVALE SPORTSMEN'S CLUB v. COMMONWEALTH PENNSYLVANIA (11/01/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 1, 1978.

MILLVALE SPORTSMEN'S CLUB, INC. AND AMERICAN STATES INSURANCE CO., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JAMES H. KING, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of James H. King v. Millvale Sportsmen's Club, No. A-72690.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for petitioners.

James A. Prozzi, with him Martin Lubow, and James N. Diefenderfer, for respondents.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 38 Pa. Commw. Page 340]

The Millvale Sportsmen's Club, Inc., (employer) appeals from an order of the Workmen's Compensation Appeal Board (Board), which affirmed a referee's decision awarding benefits and attorney's fees to James H. King (claimant). Three issues are raised by the employer: (1) whether or not the claimant was an employee of the Millvale Sportsmen's Club, Inc.; (2) whether or not the claimant suffered a permanent loss of his eye; and (3) whether or not the award of attorney's fees was proper. We think that there was sufficient evidence to support the findings of fact as to each issue and that the Board and the referee correctly applied the law. See Workmen's Compensation Appeal Board v. Bond Transport, Inc., 22 Pa. Commonwealth Ct. 86, 90, 347 A.2d 788, 791 (1975) which held that neither the compensation authorities nor the

[ 38 Pa. Commw. Page 341]

    courts should be solicitous to find contractorship rather than employment; Hershey Estates v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 470, 473, 308 A.2d 637, 639 (1973) which held that the test is whether the injured eye was lost for all practical intents and purposes; and Ball v. Workmen's Compensation Appeal Board, 19 Pa. Commonwealth Ct. 157, 159-60, 340 A.2d 610, 611 (1975) which held that the award of attorney's fees is the rule in these cases and their exclusion is the exception to be applied in cases in which the record establishes that the employer's contest is reasonably based. Accordingly, we affirm the order of the Board.

Order

And Now, this 1st day of November, 1978, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed, and judgment is entered in favor of James H. King and against Millvale Sportsmen's Club, Inc., for the loss of the claimant's left eye. Compensation for the healing period shall be paid at the rate of $106.00 per week for the period from April 8, 1974 to June 2, 1974, inclusive. Compensation for loss of the eye shall be paid at the rate of $106.00 per week beginning June 3, 1974, and continuing thereafter for a period of 275 weeks. The employer is also ordered to pay the following medical expenses:

Eye and Ear Hospital $706.90

Krieger & McVay Associates 580.00

Drugs prescribed 80.00

The employer is also ordered to pay attorney's fees at the rate of 20 per cent to Martin Lubow, Esq. Interest on the above award shall be paid in accordance with the statutory rate.

Disposition

Affirmed.

19781101

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