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CITY HARRISBURG v. WORKMEN'S COMPENSATION APPEAL BOARD (GEBHART) (07/19/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 19, 1988.

CITY OF HARRISBURG, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GEBHART), RESPONDENTS

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.

COUNSEL

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.

Author: Smith

[ 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. ยง 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 substantial evidence, must be accepted. Sokol v. Workmen's Compensation Appeal Board (State Regional Correctional Facility), 91 Pa. Commonwealth Ct. 396, 497 A.2d 670 (1985).

Employer contends that the referee erred in concluding that Claimant sustained a compensable injury since Claimant was not acting in the furtherance of Employer's business when injured. Whether an employee is acting in the course of his employment at the time of injury is a question of law based upon the facts of each case. Oakes v. Workmen's Compensation Appeal Board (Pennsylvania Electric Co.), 79 Pa. Commonwealth Ct. 454, 469 A.2d 723 (1984); Crouse v. Workmen's Compensation Appeal Board (Sperry Univac), 57 Pa. Commonwealth Ct. 430, 426 A.2d 749 (1981). Accordingly, we must assess whether the referee's findings in conjunction with appropriate principles of law require a legal conclusion that Claimant met his burden of proof. William F. Rittner Co. v. Workmen's Compensation Appeal Board (Rittner), 76 Pa. Commonwealth Ct. 596, 464 A.2d 675 (1983).

[ 118 Pa. Commw. Page 26]

The referee's relevant finding of fact regarding Claimant's use and storage of his revolver provides:

5. As there is no place on employer's premises to secure or clean firearms, a service revolver which is required equipment is worn by an officer to and from work and secured at the officer's home.

The referee then concluded as a matter of law that:

2. As Claimant is required to keep possession of his service revolver at all times and secure same in his home, the accidental discharge of the gun while unholstering it is an activity directly related to his responsibilities thus furthering the interest of his employer.

3. Claimant suffered a compensable injury while in the course of his employment and related thereto.

The applicable statutory provision, Section 301(c) of the Act,*fn4 provides in pertinent part:

The terms 'injury' and 'personal injury', as used in this act, shall be construed to mean an injury to an employe, . . . arising in the course of his employment and related thereto, . . . 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 upon the employer's premises or elsewhere, . . . .

An injury is thus compensable under Section 301(c) if it arises in the course of employment and is related thereto. Workmen's Compensation Appeal Board (Slaugenhaupt) v. United States Steel Corp., 31 Pa. Commonwealth Ct. 329, 376 A.2d 271 (1977). An injury arises in

[ 118 Pa. Commw. Page 27]

    the course of employment if it occurs on or off the employer's premises while the employee is engaged in the furtherance of the employer's business. Id. Should there be evidence that an employee virtually abandoned his/her course of employment, or that the employee was, at the time of injury, engaged in an activity wholly foreign thereto, a finding that the injury occurred in the course of employment would lead to an unrealistic and unconscionable result. See Bethlehem Steel Corp. v. Workmen's Compensation Appeal Board (Goerlich), 56 Pa. Commonwealth Ct. 438, 425 A.2d 473 (1981).

Claimant here did not merely depart from his work routine, but was off-duty and in the process of undressing and removing his service revolver when injured, acts which are clearly not in the furtherance of Employer's business. Moreover, Claimant was neither under his Employer's control at the time of injury nor did Employer order or direct him to carry his service revolver at all times or to store and secure it in his home.*fn5 Off-premises injuries which do not arise while the employee is actually engaged in the furtherance of the employer's business activities are not compensable. City of Pittsburgh v. Workmen's Compensation Appeal Board (Schiller), 94 Pa. Commonwealth Ct. 156, 502

[ 118 Pa. Commw. Page 28]

A.2d 800 (1986); Harris v. Workmen's Compensation Appeal Board (Servomation Corp.), 51 Pa. Commonwealth Ct. 470, 414 A.2d 765 (1980). Although the Act is to be liberally construed to effectuate its humanitarian objectives,*fn6 it should not be interpreted in a way which will lead to absurd and unreasonable results.*fn7 Such would be the result here should Employer be required to pay benefits to Claimant.

Moreover, Claimant's reliance upon Kramer v. City of Philadelphia, 179 Pa. Superior Ct. 129, 116 A.2d 280 (1955), is misplaced since Kramer is inapposite here.*fn8 First, Kramer represents an exception to the general rule that injuries sustained by an employee travelling to and from his place of work are not compensable under the Act, that exception being an agreement between the employer and employee which provided for the employee's transportation to and from work.*fn9 Secondly, the employer in Kramer expressly granted the employee permission to engage in the activity resulting in his fatal injuries. There was no testimony in the instant appeal that Claimant was required or given express permission

[ 118 Pa. Commw. Page 29]

    to carry his weapon at all times or to store and secure it in his home. And thirdly, the police officer in Kramer sustained his fatal injuries while attempting to preserve and protect his employer's property.

Because the Board's decision that Claimant was injured during the course of his employment is incorrect as a matter of law, we find that the Board erred and therefore reverse its decision.

Order

And Now, this 19th day of July, 1988, the order of the Workmen's Compensation Appeal Board dated May 26, 1987 is reversed.

Judge Barry concurs in the result only.

Disposition

Reversed.


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