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KEVIN KEAR v. WORKMEN'S COMPENSATION APPEAL BOARD (FAIRMAN DRILLING COMPANY) (11/14/86)

decided: November 14, 1986.

KEVIN KEAR, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FAIRMAN DRILLING COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Kevin Kear v. Fairman Drilling Company, No. A-84397.

COUNSEL

John D. Hendricks, for petitioner.

No appearance for respondent.

Judges Doyle and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 102 Pa. Commw. Page 194]

This appeal results from an order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's decision granting benefits to the claimant, Kevin Kear (claimant).

Claimant, a foreman on a drilling operation for the employer, Fairman Drilling Company, was severely injured on his way to work. That injury resulted from a collision between an automobile and the motorcycle claimant was riding. Claimant immediately notified his employer of the accident.

Thereafter claimant timely filed a claim petition seeking benefits for disability and medical expenses. In his petition, claimant maintained, among other things, that he "was traveling to [the] work site pursuant to employer's instructions" at the time. The employer filed a denial, and proceedings thereafter commenced before a referee.

Claimant appeared and testified that, among other things, he was paid $20 per day for his travel expenses. The employer, however, claimed that such sums were only paid on a per diem basis to employees who found and utilized commercial lodging near the drilling site and who produced receipts showing that they incurred expenses for such lodging. Claimant, in response, however, testified that he was paid the $20 amount routinely, and "that [it was the] normal practice with [the employer] to pay" its employees when travel was

[ 102 Pa. Commw. Page 195]

    required. N.T., 5/8/81, at 17. It is undisputed that no formal contract of employment existed.

The claimant's testimony was believed by the referee, who found that

     the claimant testified that he received funds from his employer as travel expenses and your Referee accepts this testimony as a matter of fact.

Referee's Finding of Fact # 12. So finding, the referee concluded that claimant was in the course of his ...


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