Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Wilmer L. Maurer, Sr., Docket No. A-91930.
Ronald R. Pellish, Pellish & Pellish, for petitioner.
Daniel J. Gallagher, with him, Stephen T. Potako, Post & Schell, P.C., for respondent, American Trans Freight, Inc.
President Judge Crumlish, Jr., Judge McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 116 Pa. Commw. Page 225]
This is an appeal by Wilmer L. Maurer, Sr. (Claimant) from a decision of the Workmen's Compensation
[ 116 Pa. Commw. Page 226]
Appeal Board (Board) which reversed a referee's award of benefits. We affirm.
Claimant was the owner and operator of a tractor-trailer. On Friday, September 14, 1984, Claimant entered into a trip lease agreement with American Trans Freight, Inc. (American) to deliver a load of steel from Rochester, New York to Montgomeryville, Pa. The load was to be delivered either on Friday, September 14, 1984 or Monday, September 17, 1984. While enroute to Montgomeryville, Claimant became concerned that there might be a mechanical problem with his truck. For this reason, he telephoned American's dispatcher who advised him that it was too late to make the delivery and to complete the delivery on Monday, September 17, 1984. On the following day, Saturday, while performing repairs on his truck which was parked in his driveway, Claimant received severe injuries to his left eye. These injuries have left Claimant totally blind in his left eye and he is unable to drive a truck as a result of these injuries.
At the hearing before the referee, Claimant testified that during 1984 he would enter into trip lease agreements with Falcon Transportation and American. As to American, each load Claimant agreed to transport involved a separate trip lease agreement and entailed no further obligation from either Claimant or American once the trip was completed. Claimant received a commission of 75% of the gross income for each trip. According to Claimant, he was responsible for all maintenance and repairs on his truck, licensing fees, compliance with Interstate Commerce Commission regulations, and insurance on his vehicle. Claimant testified that he was responsible for payment of all social security and federal income taxes. However, Employer did contract to obtain workmen's compensation insurance coverage for Claimant. Claimant further testified that he could select his own routes for making deliveries.
[ 116 Pa. Commw. Page 227]
It was American's position before the referee that Claimant was not entitled to benefits because at the time of his injury he was outside the scope of his employment. The referee rejected this argument and awarded benefits. The Board reversed the referee, concluding that at the time of his injury, Claimant was an independent contractor; therefore, Claimant was ineligible for benefits. This appeal followed.*fn1
The questions which this Court must resolve on appeal are whether an employer-employee relationship existed between Claimant and American; and if so, whether Claimant was injured during the course and scope of his employment. The question of whether an employer-employee relationship exists is one of law based upon findings of fact. Northern Central Bank and Trust Co. v. Workmen's Compensation Appeal Board (Kontz), 88 Pa. Commonwealth Ct. 277, 489 A.2d 274 (1985). In the cornerstone case of J. Miller Co. and Selective Insurance Co. v. Mixter, 2 Pa. Commonwealth Ct. 229, 232, ...