Opinion
April 20, 1978
Appeal from a decision of the Workmen's Compensation Board, filed November 11, 1976. On February 24, 1974, claimant injured his back getting out of a truck resulting in a herniated disc which was excised on March 1, 1974. Claimant alleges that the accident occurred while he was in the employ of Kenneth E. Morse, Jr., doing business as Ken's Arco Station. An award was made to claimant by the referee against Morse as an uninsured employer who defaulted in making payments, and the Uninsured Employers' Fund was notified on January 24, 1975 of the default. Upon application of the fund, the case was restored to the referee's calendar for further consideration. The referee reaffirmed the original award which, upon review, was reversed by the board in its decision of November 11, 1976. Claimant testified that after the accident he told a representative of workmen's compensation that "if I am allowed to go back to work, I'll go back to Kenneth E. Morse and we had started a partnership". Morse testified that around the first part of February, 1974, he and claimant made an oral agreement to go into partnership; that they purchased a truck with a loan made by them both; and that they agreed with reference to the sharing of profits and for the payment of the truck by claimant which was part of the down payment of going into business. The accountant for the business certified that claimant and Morse were operating as a partnership on February 25, 1974. The board found "that on February 25, 1974, claimant and Kenneth Morse, Jr. were operating a business as a joint venture in contemplation of the establishment of a formal partnership" and "that no employer-employee relationship existed." The decision of the board is supported by substantial evidence and should be affirmed. Decision affirmed, without costs. Sweeney, J.P., Staley, Jr., Main, Larkin and Mikoll, JJ., concur.