The opinion of the court was delivered by: Doris A. Smith-ribner, Judge
AND NOW, this 10th day of June, 2009, the Court hereby grants the Application filed by Department of Labor and Industry to Report Unreported Opinion, and it orders that the attached opinion filed March 10, 2009 shall be designated "OPINION" rather than "MEMORANDUM OPINION" and shall be reported.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The Department of Labor and Industry (L&I) seeks review of an order of the Workers' Compensation Appeal Board (Board) affirming a decision of the Workers' Compensation Judge (WCJ) to grant the claim petition filed by Sharon Savani (Claimant), an employee of L&I (Employer). The question presented by Employer is whether the Board erred in finding that Claimant was acting within the course and scope of her employment and/or in furtherance of Employer's business or affairs when she was injured in a fall during a break off Employer's premises. Claimant's position is that she sustained work-related injuries when she fell while walking on a street near Employer's premises during her paid break from work.
The parties stipulated that on November 27, 2006 at approximately 9:10 a.m., Claimant fell while walking on the street in the Stauffer Industrial Park where Employer is located and that the fall did not occur on its property. They also agreed that Claimant was on a paid break period at the time of the fall, that she was not on a mission for Employer and that her presence on the street had not been required or requested. Claimant suffered a right-arm fracture that rendered her temporarily totally disabled from November 27, 2006 through February 9, 2007, and she returned to work on February 12, 2007 without a loss of earnings.
On March 21, 2007, Claimant filed her claim petition seeking full disability benefits from November 27, 2006 through February 8, 2007, medical costs and counsel fees. The parties agreed that the issue to be decided by the WCJ was whether Claimant was acting within the course and scope of her employment and/or in furtherance of Employer's business or affairs at the time of injury. After hearing the matter, the WCJ found that Claimant sustained the injury while in the course and scope of her employment with Employer and stated as follows:
In reaching the above finding, it is clear from the outset that the issue for determination herein is very narrow. The issue is whether the claimant's fall at work during business hours, during a paid break, was within the course and scope of claimant's employment and/or in the furtherance of the employer's business or affairs. Having reviewed the briefs submitted by both parties with respect to their respective arguments, this Judge finds that the within set of facts clearly falls within the ambit of cases which have recognized that the course of employment embraces intervals for leisure within the regular hours of the working day. Momentary and/or temporary departures from routine administering to employee's personal comforts does not break the continuity of course of employment. Moreover, there is no evidence herein that the claimant had "virtually abandoned" the course of her employment with the break. . Moreover, there is no dispute that the claimant is covered by an agreement between her employer and her union which recognizes the break that the claimant was taking at the time of her fall.
WCJ's Finding of Fact No. 8.
Employer appealed to the Board, and on June 20, 2008 it affirmed the decision of the WCJ, with three Board Commissioners dissenting. It reasoned:
[T]he WCJ did not err in concluding that Claimant was within the course and scope of her employment when she fell, as we see no indication that Claimant undertook any activities that would constitute a break in the course and scope of her employment. While Defendant maintains that Claimant was not within the course and scope of her employment because she was not furthering its business or affairs at the time she fell, we cannot agree with this contention. When Claimant fell, she had reported for work and was walking in the street of the Stauffer Industrial Park, the business complex that she works in, during a paid break from work authorized by her union contract. This activity allowed Claimant to administer to her personal comfort, which in turn, better enabled her to perform her job. Baby's Room [v. Workers' Compensation Appeal Board (Stairs), 860 A.2d 200 (Pa. Cmwlth. 2004)]. Since Claimant was better enabled to perform her job, Defendant's business and affairs were furthered. We reject Defendant's argument.
Board Majority Opinion at 4. The Dissenting Opinion indicated that the majority incorrectly blended two doctrines that are not interchangeable, i.e., "personal comfort doctrine" and "inconsequential departure doctrine," and it reasoned in part:
[T]he two doctrines are not completely interchangeable. The personal comfort doctrine recognizes that breaks that allow the employee to administer to his personal comfort better enable him to perform his job, and therefore, are considered to be in furtherance of the employer's business. Cozza v. WCAB, 383 A.2d 1324 (Pa. Cmwlth. 1978). In contrast, the inconsequential departure doctrine involves true deviations from the job, albeit minor ones. The Baby's Room....
Id., at 1. The dissent concluded that Claimant's activities on her break did not fall within either category and that ...