Opinion
December 23, 1966
Appeal by the uninsured employer from a decision of the Workmen's Compensation Board awarding benefits to the claimant. The board found that the claimant worked under the direction and control of the appellant and that "On the basis of the credible evidence we find that an employer-employee relationship existed between claimant and Leonard A. Mermelstein on November 18, 1963". The appellant-employer's sole contention is that the claimant was not in his employment but rather was a lessee of appellant's truck and an independent contractor. There were five hearings at which voluminous testimony was taken, much of which was far removed from the issue to be determined. The claimant was a truck driver and claims to have been hired and paid by the appellant Mermelstein, who did business as Penn State Produce Company, engaged as truck brokers, which meant "they take on different loads and ship them via different measures". The board accepted the testimony of the claimant which, with other testimony, showed supervision and control of the appellant-employer over what was apparently the payment due for the last use of the equipment involved at the time of the accident. The testimony, while disputed, demonstrated a relationship between the claimant and the appellant, the issue of which was factual, as was the credibility of the witnesses, and there was substantial evidence to sustain the board's findings. The fact that the record might have contained evidence that someone other than the appellant was the employer or that the claimant was an independent contractor does not prevent the board's present finding based on a choice of conflicting evidence. Decision affirmed, without costs. Gibson, P.J., Reynolds and Staley, Jr., JJ., concur with Herlihy, J.