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ROCCO VIOLA v. WORKMEN'S COMPENSATION APPEAL BOARD (WELCH) (11/09/88)

decided: November 9, 1988.

ROCCO VIOLA, SR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WELCH), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Elizabeth M. Welch v. Rocco Viola, Sr., No. A-89754.

COUNSEL

Philip P. Lope, Lope & Criss, for petitioner.

Alexander J. Pentecost, with him, Amiel B. Caramanna, Jr., for respondent, Elizabeth M. Welch.

President Judge Crumlish, Jr., Judge Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge Craig and Judge MacPhail did not participate in the decision in this case.

Author: Palladino

[ 121 Pa. Commw. Page 48]

Rocco Viola, Sr. (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision awarding benefits to Elizabeth M. Welch (Claimant). For the reasons set forth below, we affirm.

Claimant was employed by Petitioner on a permanent basis to care for Petitioner's wife (Mrs. Viola), who was an invalid confined to a wheelchair. Claimant's job duties included giving Mrs. Viola her medication, feeding Mrs. Viola, bathing Mrs. Viola, and helping Mrs. Viola get in and out of bed and get dressed. While preparing lunch for Mrs. Viola, Claimant accidentally cut herself with a knife, injuring her hand. A referee awarded Claimant workmen's compensation benefits. Petitioner appealed to the Board. The Board remanded the case to the referee to determine whether Claimant was an "employee" covered by The Pennsylvania Workmen's Compensation Act (Act)*fn1 or a "domestic" excepted from coverage under section 321 the Act.*fn2

On remand, the referee made the following pertinent findings of fact:

2. Claimant's job duties were to care for the defendant's wife, who was confined to her home. Her duties included administering medication, helping Mrs. Viola in and out of the bath tub and bed, assisting in getting her dressed, and

[ 121 Pa. Commw. Page 49]

    feeding her. She did not perform any housework, and her duties could be compared to those of a nurse's aide.

4. In addition, your Referee finds as a fact that the claimant was not engaged at the time of her injury or at any other time in domestic service, so that the exemption provided in 321 of the Act is not applicable. Claimant performed no domestic or maid services.

Based on these findings, the referee concluded that Claimant was not engaged in "domestic service" and not subject to the exemption provided in section 321 of the Act. ...


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