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PYPERS v. WORKMEN'S COMPENSATION APPEAL BOARD (BAKER) (04/24/87)

decided: April 24, 1987.

PYPERS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BAKER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Beatrice Josephine Baker v. Pypers, No. A-85005.

COUNSEL

William D. March, with him, Gary A. Hurwitz, March & Hurwitz, for petitioner.

Marc S. Jacobs, Galfand, Berger, Senesky, Lurie & March, for respondent, Beatrice Josephine Baker.

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

Author: Palladino

[ 105 Pa. Commw. Page 449]

Pyper's Restaurant (Employer) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision awarding benefits to Beatrice Josephine Baker (Claimant). For reasons set forth below, we reverse.

Claimant was awarded compensation benefits for injuries sustained when she slipped on a patch of ice in a parking lot adjoining the restaurant where she worked. After the Board affirmed, Employer appealed to this court claiming no finding as to whether the injury occurred in the course of employment, and in Pypers v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 414, 439 A.2d 836 (1981), we remanded the matter to the Board for findings of fact on that issue.

On remand and after a new hearing, the referee again awarded benefits to Claimant. In this decision, the referee adopted the findings and conclusions of the original decision and added a single finding that "the injury that Claimant sustained was within the scope of her employment and that the actions prior to the injury

[ 105 Pa. Commw. Page 450]

    merely represented a temporary departure from her work." The Board affirmed the referee's decision, and this appeal followed.*fn1

As was stated in the prior opinion in this case, the central issue is whether Claimant, at the time of her injury, was acting within the course of her employment. Whether an employe is within the course of his or her employment when an injury occurs is a conclusion of law subject to our review. Peer v. Workmen's Compensation Appeal Board (B & W Construction), 94 Pa. Commonwealth Ct. 504, 503 A.2d 1096 (1986). Section 301(c)(1) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 411(1) states in pertinent part:

The term 'injury arising in the course of his employment,' as used in this article, . . . shall include all . . . injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether on the employer's premises or elsewhere, and shall include all injuries caused by the condition of the premises . . . sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, . . . the employe's presence thereon being required by the nature of his employment.

The statute establishes that, for workmen's compensation purposes, an employe will be considered to have suffered an injury ...


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