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CITY PITTSBURGH v. WORKMEN'S COMPENSATION APPEAL BOARD (SCHILLER) (01/10/86)

decided: January 10, 1986.

CITY OF PITTSBURGH, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SCHILLER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles Schiller v. City of Pittsburgh, No. A-87342.

COUNSEL

Irvin S. Bails, Baskin and Steingut, P.C., for petitioner.

John C. Mohan, Mohan & Perich, P.C., for respondent, Charles E. Schiller.

Judges Rogers and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 94 Pa. Commw. Page 157]

This is an appeal by the City of Pittsburgh (Employer) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting temporary total disability benefits to Charles Schiller (Claimant). We reverse.

Claimant was injured while employed as a rodent control worker by Employer. Claimant's job required that he travel around the City of Pittsburgh in a van with his supervisor and a crew of four or five co-workers. On May 14, 1981, Claimant was working his usual 9:00 a.m. to 5:00 p.m. shift. At approximately 4:00 p.m., his supervisor directed that the crew take a break at a local park. During this break, Claimant, with his supervisor's knowledge but without her explicit consent, rode on a child's merry-go-round. As he was getting off he fell and injured his knees. Claimant's injury prevented him from working.

Claimant timely filed a claim for workmen's compensation. After a hearing, the referee concluded that Claimant was injured in the course of his employment and granted benefits. The Board affirmed. Employer now appeals to this Court, asserting that, as a matter of law, Claimant's injury did not occur within the course of his employment. We agree.

We first note that the question of whether an employee is in the course of his employment at the time of the injury is a question of law subject to review by this Court. Bethlehem Steel Corp. v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 438, 425 A.2d 473 (1981). In support of their position

[ 94 Pa. Commw. Page 158]

    that Claimant's injury occurred within the course of his employment, Claimant and the Board rely on the case of Workmen's Compensation Appeal Board v. Borough of Plum, 20 Pa. Commonwealth Ct. 35, 340 A.2d 637 (1975). In Plum we held that an employee's momentary or temporary departures from the work routine in order to administer to personal comforts does not break the continuity of the course of employment. Plum, however, is distinguishable from the case at bar in that the employee in Plum was taking a break from the work routine in order to relieve himself and eat lunch. These are necessary physical functions and are anticipated by an employer. Claimant, however, was riding a merry-go-round. This is an activity which is neither necessary nor expected by an employer.

We conclude that this case is controlled by Weaver v. Workmen's Compensation Appeal Board (Ribstone Silos of Pennsylvania), 90 Pa. Commonwealth Ct. 262, 494 A.2d 882 (1985). In Weaver, an employee was drowned while walking in the Susquehanna River during a break. The referee in Weaver found that the decedent's supervisor was aware that the employees would go swimming during breaks but that he was not in favor of this practice. We stated in Weaver:

If the act in which the employee was engaged when injured off the [employer's] premises was not connected with the employer's business, it must appear that the employer ordered or directed the act; and merely permitting the employee to do the act without ...


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