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UNIVERSAL TRUCKING v. WORKMEN'S COMPENSATION APPEAL BOARD (HASSELL (01/11/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 11, 1988.

UNIVERSAL TRUCKING, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HASSELL, DECEASED, HASSELL-CATHCART, WIDOW), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Kenneth E. Hassell, Deceased, Kathleen Hassell Cathcart, Widow v. Universal Trucking, Inc., No. A-90588.

COUNSEL

Michael D. Sherman, Fried, Kane, Walters & Zuschlag, for petitioner.

Irving M. Portnoy, Evans, Posen, Portnoy, Quinn & Donohue, for respondent, Hassell-Cathcart.

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

Author: Palladino

[ 112 Pa. Commw. Page 429]

Universal Trucking, Inc. (Petitioner) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Kathleen Hassell Cathcart (Claimant) on behalf of Kenneth E. Hassell (Decedent). We vacate and remand.

Decedent was fatally injured in a tractor trailer accident on May 5, 1981 while delivering a load of materials for Petitioner. At the time of his death, Decedent owned the tractor. He had leased it to Petitioner pursuant to a permanent lease agreement of February 7, 1981.*fn1 Decedent had been dispatched from Petitioner's terminal in New Castle, Pennsylvania to pick up the load in Youngstown, Ohio and deliver it to Waterbury, Connecticut.

Claimant filed a fatal claim petition on September 27, 1983. Petitioner contested the claim and asserted that Decedent was not its employee but an independent contractor excluded from the coverage of The Pennsylvania Workmen's Compensation Act (Act).*fn2 After reviewing the depositions of Claimant, Richard W. Yarian (a co-worker of Decedent), and James M. Ray (president of Petitioner), the referee determined that

[ 112 Pa. Commw. Page 430]

Decedent was an employee of Petitioner at the time of his death and awarded benefits. The Board, after reviewing the referee's findings and conclusions, affirmed the decision.

Petitioner contends on appeal that the referee failed to make necessary findings of fact concerning the existence of an employment relationship between Petitioner and Decedent. In addition, Petitioner argues that the referee's conclusion that Decedent was an employee of Petitioner, rather than an independent contractor, was not supported by substantial evidence.

Our scope of review where the Board takes no additional evidence is limited to determining whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Gabriel v. Workmen's Compensation Appeal Board (No. 1 Contracting Corporation), 102 Pa. Commonwealth Ct. 470, 518 A.2d 895 (1986).

This court has held that the existence of an employment relationship is demonstrated by one's right to control the work to be performed by another as well as the manner of performance. Lego v. Workmen's Compensation Appeal Board, 66 Pa. Commonwealth Ct. 593, 445 A.2d 1324 (1982) citing Mature v. Angelo, 373 Pa. 593, Pa. 97 A.2d 59 (1953).*fn3 In this case, the referee stated, in his conclusions of law, that Decedent's equipment and the driver who provided that equipment were in

[ 112 Pa. Commw. Page 431]

    the exclusive possession, control, use, and responsibility of Petitioner. The referee also specifically concluded that Petitioner was Decedent's employer.

Despite these conclusions of the referee, we are compelled to remand this matter for further findings of fact. Section 833 of the Act*fn4 requires a referee, to whom a petition is assigned for hearing, to make findings of fact, conclusions of law, and award or disallowance of compensation. The referee's fact-finding function has been interpreted to include a requirement that the referee make findings of fact on all essential issues so that the Board and this court have an opportunity to exercise meaningful review. Marcks v. Workmen's Compensation Appeal Board, 65 Pa. Commonwealth Ct. 107, 442 A.2d 9 (1982). A synopsis or summarization of evidence is not fact-finding. Id.

Here, where the existence of an employment relationship was in dispute, the degree and manner of control which Petitioner exercised over Decedent were essential issues to be resolved by the referee.*fn5 The referee, in this case, merely summarized the testimony of James M. Ray and Richard W. Yarian, in his "findings of fact".*fn6 However, the referee did not specify the indicia

[ 112 Pa. Commw. Page 432]

    of control upon which he based his conclusion that Decedent was an employee of Petitioner. It is well established that questions of credibility and evidentiary weight are to be resolved by the referee as fact-finder.

[ 112 Pa. Commw. Page 433]

Smith v. Workmen's Compensation Appeal Board (Westinghouse Electric Corp.), 90 Pa. Commonwealth Ct. 246, 494 A.2d 877 (1985). There is no indication that the referee in the instant case made any credibility determinations, aside from possible inferences from the result. We are therefore unable to determine which evidence the referee accepted and which evidence he rejected in reaching his conclusion that Decedent was an employee of Petitioner at the time of his death.

A remand is warranted where the referee has failed to make findings on a crucial issue necessary for the proper application of the law. Port Authority of Allegheny County v. Workmen's Compensation Appeal Board (Hamilton), 95 Pa. Commonwealth Ct. 594, 505 A.2d 1372 (1986). Because the referee in this case made no findings of fact as to the control which Petitioner exercised over Decedent, we cannot adequately review the referee's conclusion of law that Decedent was an employee of Petitioner rather than an independent contractor.*fn7

Accordingly, we vacate and remand.

Order

And Now, January 11, 1988, the order of the Workmen's Compensation Appeal Board in the above-captioned case is vacated and remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.

Disposition

Vacated and remanded.


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