Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Anthony Muccigrosso v. John Rightley t/a John's Auto Body Shop, No. A-86792.
Samuel S. Blank, for petitioner.
Donald Applestein, for respondent, Anthony Muccigrosso.
Judges Rogers and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Rogers.
[ 97 Pa. Commw. Page 292]
This is the appeal of John Rightley (employer) from a decision of the Pennsylvania Workmen's Compensation Appeal Board (board) affirming the referee's award of benefits to Anthony Muccigrosso, a claimant.
The claimant has been employed as an auto body repairman since 1950. He was hired to do that work by the employer in 1976 or 1977. While so employed, he was exposed to inhalants from the painting shop as well as airborne particles from the sanding, grinding and filling of auto body parts. On March 4, 1982, while at work, the claimant suffered an episode of intense coughing and a shortness of breath. He was taken to Taylor Hospital where he was admitted to the intensive care unit, with impending respiratory failure. After eleven days of hospitalization, the claimant was released,
[ 97 Pa. Commw. Page 293]
but remained under the care of his physician, Jeffrey T. Darnall, M.D. The claimant was hospitalized again in October and December of 1982 for respiratory problems. He was diagnosed by his physician as having chronic obstructive lung disease and asthma. On the advice of his physician, the claimant has not returned to his work for the employer.
The claimant filed a claim petition on May 14, 1982. The employer filed an answer to the claim petition denying that the claimant was an employee, alleging that the claimant was a partner in his wheel alignment business, and denying that the claimant became disabled as a result of his employment.
A hearing was held before a referee who made the following pertinent findings of fact:
3. From the time Claimant began his employment with the Defendant Employer until he left because of illness in March, 1982, Claimant's work was supervised by Defendant Employer which included, but was not limited to telling Claimant when to report to work, on what vehicles to work, and what to do on each.
4. From the time Claimant began his employment with Defendant Employer until he left because of illness in March, 1982, he was paid the following gross annual wages as reflected on the W-2 forms supplied Claimant by Defendant Employer: 1977 -- $12,240.00; 1978 -- $12,480.00; 1979 -- $12,000.00; 1980 -- $12,480.00; 1981 -- $12,480.00; 1982 -- $3,120.00.
5. During the years 1979, 1980, 1981, and 1982 Defendant Employer admits he failed to maintain Worker's Compensation Insurance or any approved program of self-insurance as required by law.
[ 97 Pa. Commw. Page 2946]
. I find the testimony of the Defendant Employer lacking credibility because is [sic] lacks consistency and candor. For example, Defendant Employer maintains that he like [sic] 'to check what is going on' in his business. Yet he did not know if the $2,000.00 he had given to Claimant was a loan or not, nor did Defendant Employer bother to review the books of an alleged partnership he supposedly had with Claimant for a period exceeding two years. Defendant Employer admits that during the pertinent time, he just signed all the checks given him without reviewing them, allowed his Workers' Compensation Insurance to lapse and indeed, asserted it was his bookkeeper's fault. Defendant Employer's testimony was also contradictory in that he testified that Claimant was his partner but also worked by himself and that the wage statement W-2 forms were issued by mistake, yet he issued the 1982 W-2 form after he was aware of the supposed mistake was drawn to his attention. Finally, Defendant Employer testified that Claimant did not work for him (presumably because of the alleged 'partnership') yet he paid Claimant $400.00 per week for frame work which was separate from the $240.00 per week he 'mistakenly' paid him during the years 1979, 1980, ...