Opinion
Board No. 07872384
Filed: April 25, 1995
REVIEWING BOARD:
Judges Wilson, McCarthy, and Fischel.
APPEARANCES:
Paul A. Gargano, Esq., for the employee.
Norman P. Beane, Jr., Esq., for the insurer.
The Massachusetts Appeals Court in Mobil Oil Corp. v. Roumeliotis, 38 Mass. App. Ct. 245 (1995), reversed the majority decision of the reviewing board in Roumeliotis v. George Popa and Mobil Oil Corp., 7 Mass. Workers' Comp. Rep. 265 (1993), and remanded the case to us for entry of an order dismissing the employee's action.
The Court held that Mobil Oil Corporation (Mobil) and George Popa, d/b/a Huntington Avenue Auto Service (Popa) did not have a relationship of insured and independent contractor within the meaning of G.L.c. 152, § 18, and therefore that Mobil was not liable to pay workers' compensation benefits to the injured employee Roumeliotis.
General Laws c. 152, § 18, as amended through St. 1939, c. 93, states in relevant part:
If an insured person enters into a contract, written or oral, with an independent contractor to do such person's work, or if such a contractor enters into a contract with a sub-contractor to do all or any part of the work comprised in such contract with the insured, and the insurer would, if such work were executed by employees immediately employed by the insured, be liable to pay compensation under this chapter to those employees, the insurer shall pay to such employees any compensation which would be payable to them under this chapter if the independent or sub-contractors were insured persons. . . . This section shall not apply to any contract of an independent or subcontractor which is merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured. . . .
Popa, the operator of a service station, had failed to provide workers' compensation coverage in violation of G.L.c. 152, § 25A. Roumeliotis was assaulted and severely beaten on November 2, 1984, prior to the establishment of the Workers' Compensation Trust Fund, and thus was not entitled to receive benefits from the fund based on a claim against his uninsured employer.
In rejecting the reviewing board majority's reliance on the contract between Mobil and Popa for its conclusions that Popa was an independent contractor engaged by Mobil to do its work and Popa's work was part of Mobil's business, the Court followed Whitehouse v. Cities Service Oil Co., 315 Mass. 108 (1943), and ruled that "the sole relationship created by the contract was that of buyer and seller." Mobil Oil Corp., 38 Mass. App. Ct. at 248-250. The Court also reasoned that in the absence of evidence to show "that Mobil owned, leased, or operated gas stations or that it and its employees engaged in either the retail sale of gasoline or vehicle repairs in Massachusetts or anywhere else[,]" the employee had failed to demonstrate that Popa, merely by purchasing Mobil gas, renting a Mobil sign and using Mobil's trademarks, was engaged in doing Mobil's work within the meaning of § 18. Mobil Oil Corp., id. at 250-251, quoting Cannon v. Crowley, 318 Mass. 373, 375 (1945) and Tindall v. Denholm McKay Co., 347 Mass. 100, 105 (1964).
Accordingly, pursuant to the Appeals Court decision entered March 16, 1995, the order of dismissal entered by the administrative judge is affirmed and the employee's appeal to the reviewing board is dismissed.
So ordered.
Judges McCarthy and Fischel concur.