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PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY AND COUNTY YORK v. COMMONWEALTH PENNSYLVANIA (07/09/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 9, 1980.

PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY AND COUNTY OF YORK, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND RAYMOND D. SHEFFER, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Raymond Donald Sheffer v. CETA Program, No. A-76704.

COUNSEL

W. Jeffery Sidebottom, Barley, Snyder, Cooper & Barber, for petitioners.

Daniel L. Carn, Carn & Vaughn for respondent, Raymond D. Sheffer.

Robert J. Stewart, Liverant, Senft and Cohen, for United States Fidelity & Guaranty Company and Community Progress Council, respondents.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson, Jr.

[ 52 Pa. Commw. Page 589]

Respondent (claimant) was awarded compensation by a referee and the Workmen's Compensation Appeal Board (Board) under The Pennsylvania Workmen's Compensation Act (Act)*fn1 for temporary total disability resulting from a work-related injury. We affirm.

[ 52 Pa. Commw. Page 590]

In June of 1977 petitioner County of York (County) gave claimant employment under the auspices of Title VI of the Comprehensive Employment and Training Act (CETA), as amended, 29 U.S.C. §§ 961-970. Acting as the "prime sponsor" under CETA, the County assigned claimant to a project run by the Community Progress Council (Council), where he worked as a toy repairman and maintenance person. Claimant sustained his injury, a recurrent right inguinal hernia, on December 24, 1977 while performing a job assigned to him by the Council. On May 25, 1978 claimant filed his claim petition for compensation. The Council was joined as an additional defendant because the County alleged that the Council was the claimant's statutory employer. The referee decided that the County was the claimant's employer for purposes of the Act and as such must pay the various workmen's compensation benefits plus attorney's fees. The Board deleted the portion of the referee's award concerning attorney's fees and affirmed the referee's order as modified. The County and its insurance carrier brought this appeal.

The County first contends that the Board erred as a matter of law in determining that the County rather than the Council was the claimant's employer at the time of his injury. The question of whether an employer-employee relationship exists is one of law, based upon findings of fact. Martin Trucking Co. v. Workmen's Compensation Appeal Board, 30 Pa. Commonwealth Ct. 367, 373 A.2d 1168 (1977). The County here emphasizes that the Council took charge of the training and supervision of claimant and of any disciplinary and firing responsibilities, and argues that the crucial factor in settling the issue is who has the right of controlling the manner of claimant's performance of his work. "This Court has held many times that the most important factor in determining

[ 52 Pa. Commw. Page 591]

    the existence of an employer-employee relationship is evidence of actual control or of the right to control the work to be done and the manner of its performance." Frederico Granero Co. v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 308, 311, 402 A.2d 312, 314 (1979). However, in the determination of an employer-employee relationship, each case must be decided on its own facts. Daily Express, Inc. v. Workmen's Compensation Appeal Board, 46 Pa. Commonwealth Ct. 434, 406 A.2d 600 (1979). In the instant case, the federal government has provided the County with funds to be utilized by the County to pay for workmen's compensation coverage for persons employed under a CETA program. See 29 U.S.C. § 824(k); 29 C.F.R. § 98.24. Under its contract with the Council, the only funds the County transferred to the Council were for administrative costs. The County received and retained control of all other amounts received under the CETA program, including amounts designed for claimant's wages and for the payment of worker's compensation insurance premiums. Therefore, we cannot conclude that the Board erred as a matter of law in determining that the County was the claimant's employer at the time of his injury.

The County secondly argues that since the doctors who examined and treated claimant were not on the designated physicians list compiled by the County, the County is not obligated under Section 306(f) of the Act, 77 P.S. § 531, to pay the claimant's doctor's bills. At the time of claimant's injury, Section 306(f) of the Act provided in pertinent part:

The employer shall provide payment for reasonable surgical and medical services, services rendered by duly licensed practitioners of the healing arts, medicines, and supplies, as and when needed: Provided, That the employe may

[ 52 Pa. Commw. Page 592]

    select a duly licensed practitioner of the healing arts of his own choice, unless at least five physicians shall have been designated by the employer . . . in which instances the employe shall select a physician from among those designated. . . . If the employe shall refuse reasonable services of duly licensed practitioners of the healing arts, surgical, medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or any increase in his incapacity shown to have resulted from such refusal.*fn2

There is substantial evidence in the record indicating that no such list from the County was received by the Council, and that claimant was not made aware of the list by anyone with the County or the Council, until long after the claim arose. Since claimant did not have a list of designated physicians from which to choose and the referee did not find claimant's efforts to get medical treatment to be improper, we will affirm the award of medical expenses. See Chamberlain Corp. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 486, 308 A.2d 177 (1973).

Finally, the County contends that the subrogation interest of Pennsylvania Blue Shield should not be paid because the right to subrogation was not established at the time of the hearing. Section 319 of the Act, 77 P.S. § 671, provides in pertinent part:

Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer

[ 52 Pa. Commw. Page 593]

    or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board.

We must affirm the award to Pennsylvania Blue Shield because our review of the record reveals that sufficient proof was offered at two of the three hearings before the referee and included statements of payments Pennsylvania Blue Shield made to physicians who treated claimant.

Accordingly, we will enter the following

Order

And Now, July 9, 1980, the order of the Workmen's Compensation Appeal Board, Docket No. A-76704, dated July 12, 1979, is affirmed. It is ordered that judgment be entered in favor of claimant Raymond D. Sheffer and against the County of York and/or its insurance carrier, Pennsylvania Manufacturers' Association Insurance Company, in the amount of $99.50 per week for the period March 3, 1978 to May 5, 1978 and from June 5, 1978 to the present and continuing so long as disability lasts, together with interest at the rate of 10 percent per annum on deferred payments of compensation from the date due to the date paid, all within the terms and limits of The Pennsylvania Workmen's Compensation Act.

The County of York and/or its insurance carrier, Pennsylvania Manufacturers' Association Insurance Company, is directed to reimburse United States Fidelity & Guaranty Company, P.O. Box 188, North Market Square, Harrisburg, PA, for all compensation paid to claimant by United States Fidelity & Guaranty Company since November 15, 1978.

[ 52 Pa. Commw. Page 594]

The County of York and/or its insurance carrier, Pennsylvania Manufacturers' Association Insurance Company, is directed to pay the following medical and hospital expenses:

Community Medical Laboratory, Inc.

Ref: Dr. Brooks

Toll House Avenue

Frederick, MD 21701 $20.00

Edward A. Solano, M.D.

4 West Seventh Street, Suite 6

Frederick, MD 21701 $70.00

Dr. John R. Essock

2314 West Market Street

York, PA 17404 $101.00

Memorial Osteopathic Hospital

325 South Belmont Street

York, PA 17403 $890.95

Donald E. Myers, D.O.

1790 Third Avenue

York, PA 17405 $26.00

Frederick Memorial Hospital

Frederick, MD 21701 $45.34

Memorial Osteopathic Anesthesia As-

     sociates

325 South Belmont Street

York, PA 17403 $160.00

Dr. R. Dale McCormick

2040 East Market Street

York, PA 17402 $150.00

Pennsylvania Blue Shield

Camp Hill, PA 17011 $350.00

(less 20 percent, which is to be paid to Daniel L. Carn, Esq., 22 South Beaver

[ 52 Pa. Commw. Page 595]

Street, York, PA 17401, for recovering the money)

Memorial Osteopathic Hospital

325 South Belmont Street

York, PA 17403 $1,766.65

(less 20 percent, which is to be paid to Daniel L. Carn, Esq., 22 South Beaver Street, York, PA 17401, for recovering the money)

All remaining payments of compensation and interest shall be paid directly to Raymond D. Sheffer.

Disposition

Affirmed.


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