88 Pa. Commw. 64 | Pa. Commw. Ct. | 1985
Opinion by
The City of Scranton (City) and its insurance carrier, Gallagher-Bassett Insurance Company, and Adeline Cimoch (Claimant) have appealed an order of the Workmen’s Compensation Appeal Board (Board) which affirmed a decision of the referee granting death benefits to Claimant, the widow of Edward Cimoch (Decedent). We affirm.
Decedent was employed as a golf course superintendent at the Scranton Municipal Golf Course. On April 7, 1980, Decedent sustained fatal injuries while attempting to extinguish a fire on the golf course. Claimant filed a fatal claim petition for death benefits for herself and her minor child, in which she alleged that Decedent was an employee of the City at the time of his death. The referee determined that (1) Decedent suffered an injury resulting in death while in the course of his employment -with the City and (2) that the City was liable for Claimant’s counsel fees. On appeal, the Board affirmed the referee’s award of benefits but reversed the award of counsel fees. This appeal followed.
Before this Court the City contends (1) that Decedent was not an employee of the City but rather was an employee of the Scranton Municipal Golf Course Commission (Commission) and (2) that the referee erred when he included the value of Decedent’s Blue Cross/Blue Shield coverage in determining Decedent’s average weekly wage. Claimant appeals the Board’s reversal of the referee’s award of counsel fees.
A claimant has the burden of proving his right to benefits. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.
With respect to the issue of whether Decedent was an employee of the City, the question of whether an employer-employee relationship exists is one of law, based upon findings of fact. Workmen’s Compensation Appeal Board v. Dupes, 24 Pa. Commonwealth Ct. 47, 353 A.2d 908 (1976). While there is no set formula for determining the existence of an employer-employee relationship, this Court has held that the key element is the right to control the manner in which work is performed. Frederico Granero Co. v. Workmen’s Compensation Appeal Board, 43 Pa. Commonwealth Ct. 308, 402 A.2d 312 (1979). However, each case must be decided on its own facts. Pennsylvania Manufacturers’ Association Insurance Co. v. Workmen’s Compensation Appeal Board, 52 Pa. Commonwealth Ct. 588, 418 A.2d 780 (1980).
In the instant case, the record establishes that the City leases the lands occupied by the golf course from the Scranton Municipal Recreation Authority (Authority) which was created by the City. According to the lease agreement, the City agreed to operate and maintain the golf course as well as carry any necessary insurance in connection with its operation and maintenance. To supervise the operation and management of the golf course, the City, by ordinance, established the Commission. The ordinance
The mayor of the City appointed the members of the Commission whose service was strictly voluntary. The Commission hired Decedent, had the right to fire him and had control over his daily activities. Decedent’s salary was determined by the Commission, however, he was paid by checks signed by the mayor and the City treasurer. Moreover, Decedent was included in the City’s pension fund and participated in the medical insurance program available to City employees.
Here, the City argues that because the Commission hired Decedent, retained the right to fire him and had the right to control the manner in which he performed his work, the Commission was Decedent’s employer. We disagree. According to the lease agreement between the City and the Authority, the City undertook to operate and maintain the golf course. To fulfill this function, the City, by ordinance, created the Commission. We do not view the Commission as an entity separate and apart from the City. Rather, the Commission is the City. Thus, the Board did not commit an error of law in concluding that Decedent was an employee of the City at the time of his injury.
The City next contends that the referee erred by including the value of Decedent’s Blue Cross/Blue Shield coverage in his determination of Decedent’s average weekly wage. However, this issue was not raised before the Board and this Court is therefore precluded from considering it on appeal. Asten Hill Manufacturing Co. v. Workmen’s Compensation Ap
Finally, Claimant contends that because the City had not established a reasonable basis for contesting her claim, she is entitled to counsel fees under Section 440 of The Pennsylvania Workmen’s Compensation Act.
Order affirmed.
Order
And Now, this March 4, 1985, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is hereby affirmed.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §996.