Appeal from the Order of the Workmen's Compensation Appeal Board in case of Linda Mullen, w/o John Joseph Mullen v. Frederico Granero Co., No. A-73063.
Martin J. Fallon, Jr., with him Swartz, Campbell & Detweiler, for appellant.
Harris J. Sklar, with him Arthur M. Rosenbaum, and Gross & Sklar, P.C., for appellees.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
[ 43 Pa. Commw. Page 309]
Frederico Granero Company (Granero) and its insurance carrier, Reliance Insurance Company, appeal to this Court from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of benefits to Linda Mullen, widow of John J. Mullen (Mullen), and her two minor children and expenses relative to the hospitalization and funeral of Mullen and witness and counsel fees.
Mullen sustained fatal injuries on January 23, 1976 while performing certain carpentry work at 8311 Mansfield Avenue, Philadelphia, Pennsylvania, when an explosion occurred on the premises. His widow filed a fatal claim petition for death benefits for herself and her two minor children, in which she alleged that Mullen was an employee of Granero at the time of the explosion and, after five hearings, a referee determined that Mullen was an employee for purposes of The Pennsylvania Workmen's Compensation Act
[ 43 Pa. Commw. Page 310]
(Act)*fn1 and that the widow and her minor children were entitled to benefits as provided by the Act. On appeal, the Board affirmed the referee's award and this appeal followed.
Granero contends in this appeal that the referee erred by permitting an accountant to issue an opinion as to whether Mullen was an employee of Granero and by relying on that opinion in arriving at his order and award. Our scope of review is that defined in the Administrative Agency Law, 2 Pa. C.S. § 704, which limits this Court to a determination of whether or not an error of law was committed, constitutional rights were violated, or whether or not findings of fact are unsupported by substantial evidence.
The claimant in this case must sustain the burden of proving that Mullen was at the time of his death an employee of Granero, if she and her minor children are to qualify for compensation. Barr v. B & B Camper Sales, 7 Pa. Commonwealth Ct. 323, 300 A.2d 304 (1973). The guidelines for determining whether or not Mullen was functioning as an employee at the time of the explosion are the same as those at common law for ascertaining 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 [the] manner [in which] 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 ...