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CLYDE J. MOORE v. WORKMEN'S COMPENSATION APPEAL BOARD (ET AL.) (12/01/87)

decided: December 1, 1987.

CLYDE J. MOORE, III., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ET AL.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Clyde J. Moore, III v. Norsub, Inc., and Gary Ishenbaugh and Thomas Stromaski, and Joseph Dengler Construction Co. and Stanley Levitsky, No. A-91044.

COUNSEL

Arthur J. Leonard, Robb, Leonard & Mulvihill, for petitioner.

James M. Poerio, Herrington and Grater, for respondent, Norsub, Inc.

Joseph S. Weimer, for respondent, Joseph Dengler Construction Co.

Judges Barry and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 111 Pa. Commw. Page 387]

This is an appeal by Clyde J. Moore, III (Claimant) from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision which concluded that Claimant was disabled as a result of a work-related injury from September 27, 1982 through January 27, 1983 and that on the date of this work-related injury, Claimant was employed by Thomas Stromaski and Gary Ishenbaugh. For the reasons set forth herein, we vacate and remand.

[ 111 Pa. Commw. Page 388]

Claimant was employed as an over-the-road truck driver when, on September 17, 1982, he received injuries in a truck accident in Princeton, Illinois. On or about December 17, 1982, Claimant filed a claim petition against Norsub, Inc. seeking worker's compensation benefits for injuries sustained in the September 1982 accident. Norsub filed an answer denying that it was Claimant's employer at the time of this accident. Claimant, on February 17, 1983, filed two separate claim petitions against Stanley Levitsky*fn1 and Gary Ishenbaugh. The record discloses that Norsub leased trucks from Gary Ishenbaugh and Thomas Stromaski, and that Claimant was driving a truck owned by Ishenbaugh and Stromaski at the time of his work-related injury.*fn2 On July 16, 1984, Joseph Dengler Construction Company was joined as an additional defendant based upon Claimant's testimony that in April 1984 he performed some work for his uncle, Joseph Dengler, the owner of Dengler Construction Company and that he injured his back while employed by his uncle.

On appeal, Claimant contends that Norsub was his employer not Stromaski and Ishenbaugh; and that his disability has not ceased.*fn3 We note that where, as here, the Board has not taken additional evidence, it is the referee's responsibility to make credibility determinations and findings of fact. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). Our scope of review is limited to a determination

[ 111 Pa. Commw. Page 389]

    of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Felmont Oil Corp. and the Insurance Company of North America v. Workmen's Compensation Appeal Board (Furman), 106 Pa. Commonwealth Ct. 10, 525 A.2d 455 (1987). Pursuant to 42 Pa. C.S. § 706, this Court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require further proceedings as may be just under the circumstances.

Claimant has the burden of proving that Norsub was his employer. See Workmen's Compensation Appeal Board v. Phillips, 29 Pa. Commonwealth Ct. 613, 372 A.2d 63 (1977). In determining whether an employer-employee relationship exists between two parties, the key consideration is whether the alleged employer had the right to control the work to be done and the manner in which the work is performed. North Penn Transfer, Inc. v. Workmen's Compensation Appeal Board (Michalovicz), 61 Pa. Commonwealth Ct. 469, 434 A.2d 228 (1981) and Martin Trucking Co. v. Workmen's Compensation Appeal Board (Andrushenko and Searfoss), 30 Pa. Commonwealth Ct. 367, 373 A.2d 1168 (1977). However, the complication which arises in this matter is that Norsub leased trucks from Ishenbaugh and Stromaski; and that Claimant drove trucks owned by Ishenbaugh and Stromaski while hauling materials for Norsub. North Penn Transfer at 474-75, 373 A.2d at 230 sets forth two factors to be considered in determining whether a lessor or ...


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