40 Pa. Commw. 101 | Pa. Commw. Ct. | 1979
Opinion by
Willie Douglas (Claimant) drove tractor trailers belonging to Prank Shempf for three and one-half years prior to April 15, 1974. On that date Claimant received a call from Shempf to pick up a load of material for Dennis Trucking Co. (Defendant). While at the loading dock preparing to load his truck in accord with his instructions from Shempf, Claimant sustained a fracture of the right patella while lifting the steel binder from the trailer.
Claimant filed for workmen’s compensation benefits against both Shempf and the Defendant. After a hearing, the referee denied the claim on two grounds: (1) Claimant failed to prove that he was the employee of either Shempf or of the Defendant; and (2) Claimant failed to give timely notice of his injury to either Shempf or the Defendant.
Claimant appealed to the Workmen’s Compensation Appeal Board (Board) from the referee’s determination of non-liability with respect to the Defendant only. The Board affirmed the referee’s holding that the facts of the case were closely analogous to those in the case of J. Miller Co. v. Mixter, 2 Pa. Commonwealth Ct. 229, 277 A.2d 867 (1971), where this Court determined that the claimant was an independent contractor.
We affirm.
Order
And Now, this 24th day of January, 1979, the order of the Workmen’s Compensation Board, dated September 1, 1977, affirming the referee’s denial of benefits is affirmed.
Repealed by Section 2(a) of the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, 42 P.S. §20002(a) [1244]. A similar provision is now found at 2 Pa.C.S. §704.