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ROBERT THOMAS MERRYMAN AND HIS INSURANCE CARRIER v. WORKMEN'S COMPENSATION APPEAL BOARD (ADAM) (01/20/88)

decided: January 20, 1988.

ROBERT THOMAS MERRYMAN AND HIS INSURANCE CARRIER, PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ADAM), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Richard H. Adam v. Robert Thomas Merryman, No. A-86795.

COUNSEL

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for petitioners.

James H. DeVittorio, for respondents.

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

Author: Palladino

[ 112 Pa. Commw. Page 598]

Robert Thomas Merryman (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board which reversed a referee's decision and granted disability benefits against Petitioner to Richard H. Adam (Claimant). For the reasons set forth below, we vacate and remand.

Petitioner is in the coal transportation business. As part of his operation, Petitioner leases trucks from Gerard A. Hansel (Owner) to be used for the delivery of coal. On August 22, 1978, Claimant, a truck driver, was involved in an accident while operating a truck leased by Petitioner from Owner. Claimant suffered a temporary total disability for injuries sustained in the accident. Neither Petitioner nor Owner disputes that Claimant was injured in the course of his employment or that he is entitled to benefits for his injuries. The merits of the dispute center on which party was Claimant's employer for workmen's compensation purposes at the time of his injuries.

[ 112 Pa. Commw. Page 599]

On September 26, 1978, Claimant filed a claim petition against Owner for injuries sustained in the August 22 accident. Subsequently, on November 13, 1978, Claimant filed an amended claim petition for workmen's compensation against Owner and/or Petitioner. This amended petition was captioned Adam v. Hansel and/or Merryman. Following several postponements, an evidentiary hearing was held before a referee on February 20, 1979, at which the Claimant and both Owner and Petitioner participated. Several more hearings were held and briefs from all parties were finally received by January 3, 1980.

On February 4, 1980, the referee issued a decision captioned Adam v. Hansel, whereby the referee determined Owner to be Claimant's employer and awarded benefits accordingly. On the next day, February 5, 1980, the referee issued a second decision captioned Adam v. Merryman. In this decision, the referee stated that "[t]his case was combined for trial with the case of Richard Adam v. Gerard Hansel, and there were seven hearings held in this matter.*fn1 The referee thereafter made findings of fact and concluded that Petitioner was not Claimant's employer for workmen's compensation purposes.

On February 26, 1980, Claimant appealed the second referee's decision alleging that "the referee erred in dismissing the claim as to Robert Thomas Merryman and in holding that the claimant had failed to show an employer-employee relationship.*fn2 In a lengthy opinion, the Board, which made no reference to the referee's first captioned Adam v. Hansel, sustained Claimant's appeal

[ 112 Pa. Commw. Page 600]

    and ordered the referee to make further findings with respect to the details of the accident, the resultant disabilities, and his average weekly earnings so ...


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