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GEORGE KINLOCH v. HABIB TONSEY (03/02/84)

filed: March 2, 1984.

GEORGE KINLOCH, III, APPELLANT,
v.
HABIB TONSEY, M.D.



NO. 2717 Philadelphia, 1981, Appeal from the Order of September 22, 1981 in the Court of Common Pleas of Philadelphia County, Trial Division, Law, No. 528 January Term, 1981.

COUNSEL

Lee A. Solomon, Philadelphia, for appellant.

Thomas L. Delevie, Philadelphia, for appellee.

Wickersham, McEwen and Lipez, JJ.

Author: Mcewen

[ 325 Pa. Super. Page 478]

This is an appeal from an order granting summary judgment*fn1 in favor of appellee, Habib Tonsey, M.D., on the grounds that Dr. Tonsey was immune from suit under the provisions of Section 205 of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 72.*fn2 We affirm.

Appellant, George Kinloch, sustained an injury to his right leg while engaged in duties within the course and scope of his employment as a rigger for the Budd Company at the company plant located at 2450 West Hunting Park Avenue, Philadelphia.*fn3 Appellant proceeded to the Budd Company medical dispensary, located on the premises of the plant, where he was treated by Dr. Habib Tonsey, the Medical Director of the Budd Company. Dr. Tonsey concluded that appellant had sustained a contusion of the right thigh, prescribed daily whirlpool baths, wrapped the area with an Ace bandage and restricted appellant's activities to limited walking and standing. Appellant was directed to return to work and was examined and treated at the Budd Company medical dispensary over the course of the next two months.*fn4 On February 12, 1978, appellant was admitted to Thomas Jefferson University Hospital by a private

[ 325 Pa. Super. Page 479]

    physician for quadriplastic repair of the ruptured rectus musculotendinous unit of his right leg.

Appellant subsequently filed a complaint in trespass against Dr. Tonsey seeking damages for personal injuries allegedly incurred when Dr. Tonsey negligently diagnosed and treated appellant's injury. Dr. Tonsey filed an answer and raised, inter alia, by way of new matter, his immunity from suit under the applicable provisions of the Pennsylvania Workmen's Compensation Act. Discovery was conducted and depositions and affidavits filed of record. Dr. Tonsey filed a motion for summary judgment on October 14, 1980, on the grounds that as a co-employee of appellant, he was immune from suit under the Workmen's Compensation Act. The motion for summary judgment filed by Dr. Tonsey was granted on September 22, 1981, on the basis of Dr. Tonsey's immunity under Section 205 of the Workmen's Compensation Act. Appellant argues on appeal*fn5 that the trial court erred in concluding that Dr. Tonsey was an employee rather than an independent contractor of the Budd Company because Dr. Tonsey (1) had complete and unfettered control over the manner in which he performed his duties; (2) maintained an office for the private practice of medicine not connected with the Budd Company; (3) worked for area hospitals on certain nights and weekends for which the hospitals paid him; and (4) earned a substantial portion, approximately one-third, of his income from sources other than the Budd Company.*fn6

Appellant argues that Dr. Tonsey's substantial income from part-time employment at area hospitals and a private physician's office, in light of the doctor's complete control

[ 325 Pa. Super. Page 480]

    over the manner and method of his treatment of Budd employees, precludes a determination that Dr. Tonsey was a co-employee for purposes of immunity under Section 205. The trial court concluded, as a matter of law, that Dr. Tonsey was a co-employee of appellant based upon the following undisputed facts: (1) Dr. Tonsey worked from 8:00 a.m. to 4:00 p.m. five days per week; (2) the doctor was paid a monthly salary by the Budd Company as well as standard fringe benefits which included a Blue Cross/Blue Shield plan, dental and prescription eyeglass plan, vacation, life insurance and an investment plan; (3) the outside ...


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