Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Donald E. Gebhart v. City of Harrisburg, No. A-92241.
James F. Carl, Metzger, Wickersham, Knauss & Erb, for petitioner.
Gary M. Lightman, for respondent.
Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge Barry concurs in the result only.
[ 118 Pa. Commw. Page 23]
This is an appeal by the City of Harrisburg (Employer) from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's award of benefits to Donald E. Gebhart (Claimant) under The Pennsylvania Workmen's Compensation Act (Act).*fn1 The issue presented for review is whether the injury sustained by Claimant occurred in the course of his employment with Employer. We reverse the Board's decision.
[ 118 Pa. Commw. Page 24]
Claimant, a police detective for Employer, filed a claim petition*fn2 on October 3, 1985 alleging a work-related injury to his upper left thigh on August 1, 1985 when he accidentally discharged his service revolver while unholstering it at home after the end of his work shift. Claimant was unable to work from August 1, 1985 to August 28, 1985. Although Claimant received his full salary during this disability period, he was charged sick leave and now seeks reinstatement thereof.
Claimant testified before the referee that the service revolver was registered to him after he purchased it from Employer, but that he was prohibited from selling or relinquishing it while working for Employer. Claimant further testified that Employer has no departmental regulations stipulating where weapons are to be stored or what is to be done with them off-duty; that the accidental discharge of his weapon violated no bureau policies, procedures, or directives; and that it was normal practice among Employer's police officers to carry their weapons to and from work since Employer provided no storage area in which to secure loaded firearms. N.T., pp. 4-5, 7, 10. Further, Claimant left work on August 1, 1985 carrying his service revolver in a holster, owned by Claimant, which he did not normally use and which was not specifically designed for the revolver, and may have stopped at a dry cleaning establishment before proceeding home. N.T., pp. 6, 8-10.*fn3
The referee found that Claimant suffered a compensable injury while in the course of his employment and awarded Claimant total disability benefits from August 1, 1985 to August 28, 1985. The Board, by per curiam
[ 118 Pa. Commw. Page 25]
order, affirmed the referee, and Employer petitioned this Court for review.
This Court's scope of review in a workers' compensation case is limited to determining whether constitutional rights were violated; an error of law was committed; or necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Law, 2 Pa. C.S. § 704; Bailey v. Workmen's Compensation Appeal Board (Lawton Feed & Supply, Inc.), 105 Pa. Commonwealth Ct. 106, 523 A.2d 415 (1987); Ortiz v. Workmen's Compensation Appeal Board (Fair Tex Mills, Inc.), 102 Pa. Commonwealth Ct. 493, 518 A.2d 1305 (1986). Moreover, where the Board, as here, takes no additional evidence, the ultimate factfinder is the referee whose findings of fact, if supported by ...