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ANTHONY STEVENS v. WORKMEN'S COMPENSATION APPEAL BOARD (PENNSYLVANIA GAS AND WATER COMPANY) (03/29/89)

decided: March 29, 1989.

ANTHONY STEVENS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PENNSYLVANIA GAS AND WATER COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Anthony Stevens v. Pennsylvania Gas & Water Company, No. A-92666.

COUNSEL

George G. Oschal, III, with him, Michael J. Cefalo, Law Offices of Cefalo & Associates, for petitioner.

Kathleen A. Lenahan, Lenahan & Dempsey, P.C., for respondents.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 124 Pa. Commw. Page 487]

Anthony Stevens (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) that reversed the referee's award of benefits. We affirm.

The facts are as follows. Claimant was employed by Pennsylvania Gas and Water Company (Employer) as a customer repairman. On January 22, 1985, he was scheduled to work until 8:30 p.m. Due to extremely cold temperatures, an increase in customer repairs resulted, which necessitated Claimant work overtime. At approximately 11:00 p.m., Claimant finished a service call and travelled to a local pancake house to get a cup of coffee and call the Employer for his next assignment.

After Claimant parked his vehicle and began walking to the restaurant, he heard a horn blow and noticed one of the two occupants of a vehicle making obscene gestures at him. Claimant walked to the car, approximately 30-40 feet away and looked in the driver's side window. The Claimant, not recognizing the occupant, opened the car door. Confrontational words were exchanged and Claimant removed his jacket before a fist-fight ensued with the driver of the vehicle. During this altercation, Claimant suffered an injury which resulted in the loss of use of Claimant's left eye.

At the hearing before the referee, conflicting testimony was presented as to whether Claimant or the driver of the vehicle started the fight. The referee did not resolve this issue, but found:

     that the Claimant did not deviate so much from his employment by stopping at the restaurant or arguing with [the driver] that he was not in the scope of his employment when the above[-]described incident happened, nor did the referee find that the Claimant engaged in a fight solely for personal reasons as this incident happened spontaneously

[ 124 Pa. Commw. Page 488]

    and was not the result of prior animosities. (Finding of Fact No. 8.)*fn1

Employer appealed alleging that the referee erred as a matter of law in finding that Claimant was within the scope of his employment at the time of the fight. The Board believed the referee ignored key aspects of Claimant's testimony which it felt were critical: 1) that the car in question was 30-40 feet away from Claimant, 2) that Claimant walked around to the driver's side of the car and opened the door, and 3) that Claimant removed his jacket before the fight ensued. The Board reversed and concluded that the referee's Finding of Fact No. 8 was erroneous in finding Claimant had not ...


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