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Thompson v. Workers' Compensation Appeal Board

September 24, 2009

NOREEN THOMPSON, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (CINEMA CENTER), RESPONDENT



The opinion of the court was delivered by: Judge Leavitt

Submitted: August 14, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Noreen Thompson (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) decision to grant her claim petition. However, both the WCJ and the Board denied Claimant's request for quantum meruit attorney's fees for unreasonable contest. It was the position of Claimant's employer that her accident did not occur on its premises and, therefore, did not occur in the scope of her employment. The Board concluded that the employer's contest was a reasonable one. We affirm.

Cinema Center (Employer) is a movie theater located in a strip mall. Since September 2006, Claimant has been employed there as a ticket taker and usher, working approximately 15 hours per week. Claimant sustained an injury to her left shoulder on February 12, 2007, when she fell while walking to her car after work. Her treating orthopedic surgeon diagnosed the injury as a severe humeral head fracture, which required shoulder surgery followed by a course of physical therapy. Claimant returned to her regular job on March 29, 2007.

Claimant filed a claim petition seeking total disability benefits for the closed period from February 13, 2007, to March 29, 2007; payment of her medical bills; and payment of her counsel fees. Employer filed a timely answer denying that Claimant sustained a work-related injury. Employer also issued a Notice of Compensation Denial explaining that the claim was denied because Employer did not believe the incident occurred on Employer's premises; thus, Claimant's injury was not compensable under Section 301(c)(1) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411(1), as she was not injured in the course and scope of her employment.*fn1 At the hearing before the WCJ, Employer stipulated that the only issue in contest was whether Claimant's injury had occurred in the scope of employment.*fn2

Claimant did not contend that she was furthering Employer's business at the time of her injury. Nevertheless, Claimant could prove that her injury occurred in the course of employment by establishing that: (1) her injury occurred on the employer's premises; (2) she was required by the nature of her employment to be present on the employer's premises; and (3) the injury was caused by the condition of the premises or by operation of the employer's business or affairs thereon. Markle v. Workers' Compensation Appeal Board (Bucknell University), 785 A.2d 151, 153 (Pa. Cmwlth. 2001). Whether an employee is injured in the course of employment is a question of law to be determined on the basis of the WCJ's findings of fact. Id.

Claimant testified on her own behalf, describing the parking situation at work. Employer's movie theater is located at the end of the shopping center. The shopping center parking lot is located in front of Employer's theater and also to the right side of the theater building. Claimant drives to work each day and can park anywhere in the shopping center parking lot; there are no designated parking spaces for Employer's employees. Members of the public also can park anywhere in the lot.

On February 12, 2007, when she arrived for work, Claimant parked on the right side of the building. At 4:00 p.m., Claimant clocked out, left by the door that was closest to her car and walked out onto a concrete sidewalk that leads to the asphalt parking lot. Claimant explained that a "lip" or uneven area exists where the concrete and asphalt meet; she lost her footing at the uneven area and fell onto her left side. Reproduced Record at 15a-16a (R.R. ___).*fn3 Claimant testified that the weather was clear, and there was no snow or ice present on the parking lot. Claimant estimated that the spot where she fell was 13 to 15 feet from the exit door and less than 10 feet from her car.

Employer presented testimony from Trudy Withers, Executive Vice-President of Theater Operations. She explained that Employer owns the building that houses the movie theater but does not own the sidewalk or parking lot; rather, the owner of the strip mall (Landlord) owns that property. Employer pays Landlord a fee for use and maintenance of "common areas," which include the sidewalk and parking lot. R.R. 46a. Landlord is responsible for snow removal, changing parking lot lights and similar duties. There are no assigned parking spots; employees may park anywhere in the shopping center parking lot without charge. Employer has no control over where employees park or where shopping center customers park. There are always enough parking spaces for all 35 employees. Withers acknowledged that it was appropriate for Claimant to park where she did and that Claimant was required to walk across the area where the accident occurred in order to go from the theater to her car.

Employer submitted the lease agreement into evidence. Section 8 of the lease is entitled "Common Area" and confirms that the common area includes parking areas, sidewalks and curbs. The lease provides that Employer and "its employees, agents, and customers shall have the non-exclusive right to the use or benefit of the Common Area" and Employer "acknowledges that the Common Area may also be used by occupants and/or invitees of properties adjoining the Shopping Center, whether or not owned, leased or managed by Landlord." R.R. 70a (Lease sections 8(A) & 8(B)).

The WCJ considered the evidence and issued a decision and order granting Claimant's claim petition. The WCJ found in relevant part as follows:

42. This [WCJ] accepts as credible [C]laimant's testimony in its entirety, including her description of the location and mechanism of her fall, and that she tripped on the lip while stepping from the cement sidewalk to the asphalt parking lot; and that she was walking from the theatre to her car, which was parked in the ...


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