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CHARLES W. ZIMMERMAN v. COMMONWEALTH PENNSYLVANIA (03/19/85)

decided: March 19, 1985.

CHARLES W. ZIMMERMAN, M.D., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, RESPONDENT



Appeal from the Order of the Board of Public School Employes' Retirement System in the case of In Re: Charles W. Zimmerman, S.S. No. 182-12-2864, Membership Eligibility Claim.

COUNSEL

Robert E. Wayman, Wayman, Irvin & McAuley, for petitioner.

Nicholas Joseph Marcucci, Assistant Counsel, for respondent.

Judges Doyle and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Judge Palladino dissents. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barbieri

[ 88 Pa. Commw. Page 290]

Charles W. Zimmerman (Petitioner) appeals from a decision of the Pennsylvania Public School Employes' Retirement System Board (Board) which declared him ineligible to participate in the retirement system.

Petitioner has worked as a physician for the Wilkinsburg Area School District (District) since 1951, examining students, participants in interscholastic sports, teachers, and some maintenance personnel.*fn1 Petitioner performs these medical services in the buildings in the District, with the superintendent of schools designating the hours of visits to different facilities. Petitioner is also required to attend all athletic events scheduled in the District.

Petitioner is on call at the various schools in the District between the hours of 9:00 a.m. and 12:00 a.m., Monday through Friday. For the remainder of each day, Petitioner maintains an outside private practice.

Petitioner earns an annual salary over a twelve-month period. Petitioner's remuneration does not depend upon whether he takes vacation time or is absent

[ 88 Pa. Commw. Page 291]

    for illness, or upon the extent of services rendered. The District employs nurses to assist Petitioner in his daily routine and provides Petitioner's supplies.

Petitioner receives some benefits from the District, including group life insurance and he receives compensation increases similar to those received by other District personnel. On the other hand, the District does not provide Petitioner with Blue Cross/Blue Shield coverage. Moreover, Petitioner carries his own medical malpractice insurance and the District does not contribute to the cost of this insurance. Further, Petitioner's private practice supports an individual retirement plan for Petitioner.

Petitioner filed a timely application for retirement benefits with the Board. Following a hearing, on May 16, 1983, a hearing examiner recommended denial of Petitioner's claim for coverage. After Petitioner filed timely exceptions to the hearing examiner's recommendation, the Board, on August 5, 1983, denied Petitioner's request for coverage, holding that Petitioner was an independent contractor and not an employee.*fn2 This appeal ensued.

The sole issue raised by Petitioner is whether the Board erred in determining that he was an independent contractor rather than an employee of the District. Section 8301 of the Public ...


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