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ELENA TORRES v. WORKMEN'S COMPENSATION APPEAL BOARD (MODERN MUSHROOM FARM (11/03/89)

decided: November 3, 1989.

ELENA TORRES, WIDOW OF CANDIDO TORRES, DECEASED PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MODERN MUSHROOM FARM, INC.), RESPONDENTS



PETITION FOR REVIEW (WORKMEN'S COMPENSATION).

COUNSEL

Albert Bartolomeo, Bartolomeo & Associates, Philadelphia, for petitioner.

David A. Pennington, Swartz, Campbell & Detweiler, Philadelphia, for respondent, Modern Mushroom Farm, Inc.

Crumlish, Jr., President Judge, and Palladino (p.) and Smith, JJ.

Author: Smith

[ 129 Pa. Commw. Page 373]

Elena Torres (Claimant) seeks review of the order of the Workmen's Compensation Appeal Board (Board) denying her appeal and affirming the referee's denial of Claimant's fatal claim petition.

Candido Torres (Decedent) was shot and killed in an apparent robbery attempt on September 20, 1979. Decedent

[ 129 Pa. Commw. Page 374]

    had been employed by Modern Mushroom Farms, Inc. (Employer) at the time of his death as a "crewleader" who supervised the mushroom pickers at the farms.*fn1 Decedent was shot while returning from an area bank after having cashed paychecks for some of Employer's workers. Claimant filed a fatal claim petition on April 5, 1982 on behalf of herself and Decedent's three children which was denied by the referee who concluded that Decedent was not acting in the course and scope of his employment at the time of his death. Claimant appealed this decision to the Board which affirmed the referee.*fn2

The issues presented by Claimant on appeal are whether the Board's conclusion that Decedent was not acting in the course and scope of his employment at the time of his death is supported by substantial evidence; whether the referee improperly reopened the record to permit Employer to submit Decedent's time record; and whether the referee improperly calculated Decedent's hourly wage under The Pennsylvania Workmen's Compensation Act*fn3 (Act).

Claimant and Decedent supplied meals for some of Employer's workers in the kitchen and dining areas located on Employer's property. No rent was charged to them for use of these facilities. The workers paid Claimant and Decedent directly for their meals and none of the profits from operating the kitchen inured to Employer. Testimony of record indicated that profit from operating the kitchen was approximately $1,000 per week. Claimant prepared the food and there was testimony that any work performed by

[ 129 Pa. Commw. Page 375]

Decedent, an hourly employee required to punch a time clock, was performed when he had punched off the clock. Claimant argues, however, that Decedent's operation of the kitchen ...


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