Rightley v. Workmen's Compensation Appeal Board

509 A.2d 905, 97 Pa. Commw. 291, 1986 Pa. Commw. LEXIS 2179
CourtCommonwealth Court of Pennsylvania
DecidedMay 16, 1986
DocketAppeal, No. 374 C.D. 1985
StatusPublished
Cited by2 cases

This text of 509 A.2d 905 (Rightley v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rightley v. Workmen's Compensation Appeal Board, 509 A.2d 905, 97 Pa. Commw. 291, 1986 Pa. Commw. LEXIS 2179 (Pa. Ct. App. 1986).

Opinion

. Opinion by

Judge Rogers,

This is the appeal of John Rightley (employer) from a decision of the Pennsylvania Workmens Compensation Appeal Board (board) affirming the referees award of benefits to Anthony Muccigrosso, a claimant.

The claimant has been employed as an auto body repairman since 1950. He was hired to do that work by the employer in 1976 or 1977. While so employed, he was exposed to inhalants from the painting shop as well as airborne particles from the sanding, grinding and filling of auto body parts. On March 4, 1982, while at work, the claimant suffered an episode of intense coughing and a shortness of breath. He was taken to Taylor Hospital where he was admitted to the intensive care unit, with impending respiratory failure. After eleven days of hospitalization, the claimant was re[293]*293leased, but remained under the care of his physician, Jeffrey T. Darnall, M.D. The claimant was hospitalized again in October and December of 1982 for respiratory problems. He was diagnosed by his physician as having chronic obstructive lung disease and asthma. On the advice of his physician, the claimant has not returned to his work for the employer.

The claimant filed a claim petition on May 14, 1982. The employer filed an answer to the claim petition denying that the claimant was an employee, alleging that the claimant was a partner in his wheel alignment business, and denying that the claimant became disabled as a result of his employment.

A hearing was held before a referee who made the following pertinent findings of feet:

3. From the time Claimant began his employment with the Defendant Employer until he left because of illness in March, 1982, Claimants work was supervised by Defendant Employer which included, but was not limited to telling Claimant when to report to work, on what vehicles to work, and what to do on each.
4. From the time Claimant began his employment with Defendant Employer until he left because of illness in March, 1982, he was paid the following gross annual wages as reflected on the W-2 forms supplied Claimant by Defendant Employer: 1977—$12,240.00; 1978—$12,480-.00; 1979—$12,000.00; 1980—$12,480.00; 1981 —$12,480.00; 1982—$3,120.00. . .
5. During the years 1979, 1980, 1981, and 1982 Defendant Employer admits he failed to maintain Workers Compensation Insurance or any approved program of self-insurance as required by law.
[294]*2946. I find the testimony of the Defendant Employer lacking credibility because is [sic] lacks consistency and candor. For example, Defendant Employer maintains that he like [sic] ‘to check what is going on in his business. Yet he did not know if the $2,000.00 he had given to Claimant was a loan or not, nor did Defendant Employer bother to review the books of an alleged partnership he supposedly had with Claimant for a period exceeding two years. Defendant Employer admits that during the pertinent time, he just signed all thé checks given him without reviewing them, allowed his Workers’ Compensation Insurance to lapse and indeed, asserted it was his bookkeeper’s fault. Defendant Employer’s testimony was also contradictory in that he testified that Claimant was his partner but also worked by himself and that the wage statement W-2 forms were issued by mistake, yet he issued the 1982 W-2 form after he was aware of the supposed mistake was drawn to his attention. Finally, Defendant Employer testified that Claimant did not work for him (presumably because of the alleged ‘partnership’) yet he paid Claimant $400.00 per week for frame work which was separate from the $240.00 per week he ‘mistakenly’ paid him during the years 1979, 1980, 1981, and 1982. Defendant Employer would have us believe he paid Claimant over $30,000.00 a year ($20,000.00 a year from the $400 a week plus over $12,000.00 reflected on the various W-2 forms) for almost four (4) years by mistake. These are not the acts of a man who likes to ‘keep on top of things’ in his business.
7. Sometime in late 1979 Claimant and Defendant Employer entered into an ‘additional [295]*295relationship’. Pursuant to this relationship, Claimant and Defendant Employer opened a joint bank accound [sic] which was completely funded with Claimant’s money ($4,000.00), and which was used to purchase auto frame straightening equipment most of which was stored in Defendant Employer’s garage. There was no advertising of this business venture, no telephone number issued, to tax returns (informational or otherwise) filed, and no partnership agreement negotiated and executed. Based on the foregoing, I find that there was no partnership or in the alternative, if there was, it was in addition to the already existing employer-employee relationship between Claimant and Defendant Employer within the meaning of the Act.
8. During the winter of 1981-82 Claimant experienced a greater number of colds and coughs than normal. He also found that when he experienced period [sic] of shortness of breath if he left the auto body shop, the symptoms would . lessen. .
11. From February, 1981 to the present, Claimant had been under the care and medical supervision of Jeffrey T. Darnall, M.D. whom I find to be an expert by training, education and experience in the area of immunology. I find Dr. Darnall’s testimony credible because of its consistency and thoroughness. Accordingly I find as a feet that Claimant suffers from chronic obstructive lung disease and in particular, from asthma. Also, I find that Claimant is. subject to asthmatic attacks and that those attacks are caused or ‘triggered’ by the inhalants in the atmosphere of [296]*296the Defendant Employers auto body shop. I further find that Claimants subsequent hospitalizations in October and December, 1982 were a result of this asthmatic condition and Claimants emotional concerns arising from his physical condition and, in part, from his concern arising from the fact that Defendant Employer had failed to maintain Workers Compensation Insurance, and the financial problems his family was facing because of that. This is well documented by Claimants exceedingly high IGE levels after the March, 1982 hospitalization [sic] (emphasis added).
12. While also find [sic] Theodore Rodman, M.D. an expert in the field of immunology and respiratory disease, I find Dr. Rodmans testimony of limited value because he did not examine Claimant until eleven (11) months after Claimants March, 1982 hospitalization, and because Dr. Rodman was not Claimants attending physician. Indeed, Dr. Rodman testified that the apparent difference in his test results from those of the tests taken about the time of the Claimants first hospitalization may well have arisen because of the 11 months interval between the tests. Dr. Rodmans testimony also is contradictory in that it contradicted his earlier report. For example, Dr. Rodmans testimony is unclear as to whether Claimants asthma was atopic in nature, yet in his January 21, 1983 report he clearly stated that Claimant was atopic. He also admitted that he did not conduct any tests to determine the cause of Claimants attacks. Notwithstanding these limitations, Dr. Rodman concurs with the conclusions of Claimants attending physician, Dr. Darnall, in [297]*297that Claimant is asthmatic and that he has suffered attacks from inhalants such as ‘volatile solvents used in paints’. Moreover Dr.

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Bluebook (online)
509 A.2d 905, 97 Pa. Commw. 291, 1986 Pa. Commw. LEXIS 2179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rightley-v-workmens-compensation-appeal-board-pacommwct-1986.