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CITY SCRANTON AND GALLAGHER-BASSETT INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (CIMOCH) (03/04/85)

decided: March 4, 1985.

CITY OF SCRANTON AND GALLAGHER-BASSETT INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CIMOCH), RESPONDENTS. ADELINE CIMOCH, WIDOW OF EDWARD CIMOCH, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (CITY OF SCRANTON), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Adeline Cimoch w/o Edward v. City of Scranton, No. A-82952.

COUNSEL

William J. Hall, with him, James A. Doherty, Jr., for petitioner/respondent, City of Scranton.

Paul A. McGlone, for petitioner/respondent, Adeline Cimoch, widow of Edward Cimoch.

Judges Williams, Jr. and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Palladino

[ 88 Pa. Commw. Page 66]

The City of Scranton (City) and its insurance carrier, Gallagher-Bassett Insurance Company, and Adeline Cimoch (Claimant) have appealed an order of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of the referee granting death benefits to Claimant, the widow of Edward Cimoch (Decedent). We affirm.

Decedent was employed as a golf course superintendent at the Scranton Municipal Golf Course. On April 7, 1980, Decedent sustained fatal injuries while attempting to extinguish a fire on the golf course. Claimant filed a fatal claim petition for death benefits for herself and her minor child, in which she alleged that Decedent was an employee of the City at the time of his death. The referee determined that (1) Decedent suffered an injury resulting in death while in the course of his employment with the City and (2) that the City was liable for Claimant's counsel fees. On appeal, the Board affirmed the referee's award of benefits but reversed the award of counsel fees. This appeal followed.

Before this Court the City contends (1) that Decedent was not an employee of the City but rather was an employee of the Scranton Municipal Golf Course Commission (Commission) and (2) that the referee erred when he included the value of Decedent's Blue Cross/Blue Shield coverage in determining Decedent's average weekly wage. Claimant appeals the Board's reversal of the referee's award of counsel fees.

A claimant has the burden of proving his right to benefits. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d

[ 88 Pa. Commw. Page 67367]

(1979). And where, as here, the party with the burden of proof prevails before the referee, and the Board takes no additional evidence, our scope of review is limited to determining whether any constitutional rights were violated or an error of law was committed or whether a necessary finding of fact was unsupported by substantial evidence. Bethlehem Steel Corporation v. Workmen's Compensation Appeal Board, 70 Pa. Commonwealth Ct. 392, 453 A.2d 370 (1982).

With respect to the issue of whether Decedent was an employee of the City, the question of whether an employer-employee relationship exists is one of law, based upon findings of fact. Workmen's Compensation Appeal Board v. Dupes, 24 Pa. Commonwealth Ct. 47, 353 A.2d 908 (1976). While there is no set formula for determining the existence of an employer-employee relationship, this Court has held that the key element is the right to control the manner in which work is performed. Frederico Granero Co. v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 308, 402 A.2d 312 (1979). However, each case must be decided on its own facts. Pennsylvania Manufacturers' Association Insurance Co. v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 588, 418 A.2d 780 (1980).

In the instant case, the record establishes that the City leases the lands occupied by the golf course from the Scranton Municipal Recreation Authority (Authority) which was created by the City. According to the lease agreement, the City agreed to operate and maintain the golf course as well as carry any necessary insurance in connection with its operation and maintenance. To supervise the ...


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