Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Gloria M. Collins v. American Society for Testing and Materials, No. A-87880.
Richard A. Ash, Lyman & Ash, for petitioner.
A. James Johnston, Post & Schell, for respondent.
Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Doyle.
[ 99 Pa. Commw. Page 229]
This is an appeal by Gloria M. Collins (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision denying Claimant benefits on the basis that she was not acting in the course and scope of her employment at the time of her injury pursuant to Section 301(c) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
Claimant sustained an injury to her legs, back, neck and shoulders as a result of falling in a hole in the sidewalk two blocks from the office building where she worked. At the time of her fall Claimant was returning from lunch. The referee specifically found that Claimant's injury occurred off premises and that in making the luncheon trip Claimant was "serving her own purposes" and consequently not furthering business of the American Society for Testing and Materials (Employer). Based upon these findings the referee concluded that Claimant was not acting in the course and scope of her employment at the time of the injury and accordingly dismissed her appeal. The Board affirmed.
On appeal Claimant presents two related arguments. First she maintains that the Board erred in determining that her injury had not arisen during the course of her employment. In support of her argument she contends that her assigned lunch period was part of her normal working day. She also presents additional facts which are of record, but which were not specifically found by the referee. These include the fact that Employer had no cafeteria on its premises and the fact that Claimant is paid on an annual rather than hourly basis. Claimant's other argument is that the Board erred in requiring her to prove that at the time of her injury she was actually furthering Employer's business. She maintains that proof of that additional factor has been rejected
[ 99 Pa. Commw. Page 230]
by the Pennsylvania Supreme Court in Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 439 A.2d 627 (1981).
We will examine Claimant's arguments keeping in mind that where, as here, the party with the burden of proof has failed to prevail before the Board our scope of review is limited to determining whether there has been a constitutional violation or an error of law and whether the findings of fact are consistent with each other and with the conclusions of law and can be sustained without capricious disregard of competent evidence. Workmen's Compensation Appeal Board v. Precisionware, Inc., 21 Pa. Commonwealth Ct. 573, 347 A.2d 322 (1975).
Claimant is correct in her assertion that in Krawchuk, an off-premises heart attack case, the Pennsylvania Supreme Court rejected the notion that a claimant must show that he or she was actually engaged in the furtherance of the employer's business at the time of the heart attack. The Court wrote, "[t]his Court and the Commonwealth Court have consistently construed section 301(c) to require the establishment by the claimant of only two facts -- that the injury arose in the course of employment and was related thereto." Krawchuk at 121, 439 A.2d at 630. The Krawchuk Court then stated, "we hold that the Commonwealth Court and the Board erred in requiring claimant to prove that an off-premises heart attack victim was actually engaged, at the time of the heart attack, in the furtherance of his employer's business at the express or implied request of the employer." Id. at 124-25, 439 A.2d at 632 (emphasis added).
Whether the furtherance of employer's business requirement must be demonstrated in non-heart attack off-premises cases is somewhat uncertain. It appears that the ...