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MILLER'S BUILDING & REMODELING v. COMMONWEALTH PENNSYLVANIA (05/17/79)

decided: May 17, 1979.

MILLER'S BUILDING & REMODELING, LLOYD MILLER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JAMES H. HANCOCK, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of James H. Hancock v. Miller's Building and Remodeling, Lloyd Miller, No. A-72773.

COUNSEL

Gailey C. Keller, with him Smith, Eves & Keller, for petitioner.

Thomas J. Carylon, for respondents.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr., dissents.

Author: Mencer

[ 42 Pa. Commw. Page 630]

In this workmen's compensation case, the only question raised for our consideration is whether, at the time he suffered serious injuries, the claimant, James H. Hancock (Hancock), was an independent contractor or was an employee of Miller's Building & Remodeling or Lloyd Miller (Miller). A workmen's compensation referee made an award in favor of the claimant. An appeal was taken by Miller to the Workmen's Compensation Appeal Board which affirmed the award of the referee. This appeal followed and we affirm.

Hancock sustained the loss of his right eye when, on May 17, 1973, he suffered a work-related injury when a nail driven by another worker flew and struck the claimant in the right eye.

Miller contends that under the facts surrounding the relationship between him and Hancock there was no employer-employee relationship but rather that Hancock was working at the time of the tragic accident as an independent contractor.

Certainly, Hancock must sustain the burden of proving the existence of an employment relationship with Miller if he is to qualify for workmen's compensation. Barr v. B & B Camper Sales, 7 Pa. Commonwealth Ct. 323, 300 A.2d 304 (1973). The guidelines for determining whether or not a claimant was functioning as an employee at the time of the accident are the same as those at common law for ascertaining

[ 42 Pa. Commw. Page 631]

    whether or not a master-servant relationship existed. Workmen's Compensation Appeal Board v. American Mutual Liability Insurance Co., 19 Pa. Commonwealth Ct. 502, 339 A.2d 183 (1975). Each case must be determined on its own facts, but there are certain factors which have been recognized as guidelines for making a determination:

Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether work is a part of regular ...


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