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

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 ...


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