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WINGERT & BRECHBILL AND WESTMORELAND CASUALTY COMPANY v. COMMONWEALTH PENNSYLVANIA (07/05/79)

decided: July 5, 1979.

WINGERT & BRECHBILL AND WESTMORELAND CASUALTY COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HAYWARD & KATHRYN GROUP, PARENTS OF BRYAN H. GROUP, DECEASED, RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in case of Hayward and Kathryn Group, Claimants, Parents of Bryan H. Group, Deceased v. Wingert & Brechbill, No. A-72068.

COUNSEL

H. Reginald Belden, Jr., and Rudolf M. Wertime, with them Stewart, Belden, Sensenich and Herrington, for petitioners.

Kenneth F. Lee, for respondents.

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

Author: Craig

[ 44 Pa. Commw. Page 57]

Employers Wingert and Brechbill are appealing a decision of the Workmen's Compensation Appeal Board (Board) affirming the referee's award of compensation to claimants, parents of the deceased minor, Bryan H. Group.

Employer alleges that the referee's award of compensation was erroneous in that: (1) decedent was casually employed in work outside the regular course of their business activities and, therefore, not an employee entitled to compensation within the meaning of Section 22 of The Pennsylvania Workmen's Compensation Act, 77 P.S. § 22,*fn1 and, (2) because decedent had not made monetary contributions to claimants, they were not entitled to compensation under Section 307(5), 77 P.S. § 561(5) of the Act, and finally (3) the referee's finding that claimants were partially dependent on decedent was incorrect as a matter of law.

Further, employer urges that if the court affirms the determination of compensation, then the amount of compensation awarded was in error because claimants were not entitled to "additional compensation" under Section 320(a) of the Act, 77 P.S. § 1420(a).

The claimants must sustain the burden of proving the existence of the employment relation, and where the referee has found in favor of the party with the burden of proof, our review of that finding is limited. Grant Builders v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 591, 382 A.2d 783 (1978).

As to the first issue, the referee's fourth finding of fact was:

[ 44 Pa. Commw. Page 58]

July 11, 1975, Bryan H. Group was an employee of defendant employer within the meaning of the Workmen's Compensation Act. . . .

The referee made no specific findings as to the nature of decedent's employment; however, there is substantial evidence in the record indicating that decedent's employment was not casual, but was a ...


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