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

COMMONWEALTH COURT OF PENNSYLVANIA


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. Conclusion of Law No. 5. The Board affirmed.

On appeal to this court,*fn3 Petitioner contends that the referee erred in concluding that Claimant was not engaged in "domestic service" and therefore not exempted from coverage under the Act. Petitioner contends that there is not substantial evidence in the record to support the referee's conclusion that Claimant was an "employee" and not a "domestic."

Our research has disclosed only one reported Pennsylvania appellate court decision which attempts to define the term "domestic service" for workmen's compensation purposes. In Jack v. Belin's Estate, 149 Pa. Superior Ct. 531, 27 A.2d 455 (1942), the Superior Court held that a gardener who maintained the grounds of an estate and ran errands for the comfort of those living on the estate was engaged in "domestic service" for purposes of the Act. The Superior Court concluded that a

[ 121 Pa. Commw. Page 50]

"domestic servant" is one who serves the needs of a household. Black's Law Dictionary defines the term "domestic" in a similar manner. Black's defines a "domestic" as a "household servant." Black's Law Dictionary 434 (5th ed. 1979).

When we apply the above definitions in this case, it is clear that Claimant was not engaged in "domestic service." Claimant did not serve, nor was she employed to serve, the needs of the household. All of Claimant's job duties as found by the referee and supported by substantial evidence in the record related solely to the unique needs of Mrs. Viola, rather than the general needs of the household.

The referee specifically found that Claimant did not perform any housework and performed no domestic or maid services. There was testimony that Claimant did not do any housecleaning and was hired only to care for Mrs. Viola. From the totality of the record, we conclude that the referee's findings are supported by substantial evidence.

Because Claimant's job involved performing duties similar to those of a nurse's aide, see December 3, 1984 hearing, N.T. at 7, and did not involve performing household duties, we conclude that Claimant was not engaged in "domestic service" for purposes of the Act.*fn4 Accordingly, we affirm.

[ 121 Pa. Commw. Page 51]

Order

And Now, November 9, 1988, the order of The Workmen's Compensation Appeal Board in the above-captioned matter is affirmed.

Judge Craig and Judge MacPhail did not participate in the decision in this case.

Disposition

Affirmed.


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