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Donald Werner, Deceased v. Workers‟ Compensation Appeal

September 1, 2011

DONALD WERNER, DECEASED, PETITIONER
v.
WORKERS‟ COMPENSATION APPEAL : BOARD (GREENLEAF SERVICE CORPORATION), : RESPONDENT :



The opinion of the court was delivered by: P. Kevin Brobson, Judge

: Submitted: April 15, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BROBSON

Brenda Werner (Claimant) petitions for review of an order of the Workers‟ Compensation Appeal Board (Board), issued December 14, 2010. The Board affirmed the decision of a Workers‟ Compensation Judge (WCJ), which denied Claimant‟s fatal claim petition requesting benefits as a result of the death of Donald Werner, Claimant‟s husband (Decedent). For the reasons that follow, we affirm.

Claimant filed a fatal claim petition against Greenleaf Services Corporation (Employer) on February 14, 2008, alleging that Decedent sustained a work-related injury in the nature of a massive intracranial hemorrhage on March 8, 2007, which ultimately led to Decedent‟s death on March 18, 2007. Employer filed a notice of denial on March 11, 2008. By agreement of the parties, the WCJ bifurcated the proceedings to first address the issue of whether Decedent was in the course and scope of his employment at the time of his injury. The WCJ held hearings on May 20, 2008, and July 30, 2008, relating to the issue of course and scope of employment.

The Board aptly summarized the relevant evidence and witness testimony as follows:

Claimant testified that Decedent was employed by [Employer] as its international sales manager. [(Reproduced Record (R.R) at 267a.)] She stated that when he was not traveling, he worked out of his home in [Fort Lee,] New Jersey and at [Employer]‟s facility in Saegertown, Pennsylvania. [(Id. at 268a.)] He spent Monday through Friday in Saegertown, sometimes for two or three weeks, then a week at home, or it could be every other week. [(Id. at 299a.)] Decedent maintained an office in the basement of his home with a computer, fax machine, cell phone and printer owned by [Employer], and had a personal computer, fax, and printer on the second floor of the home. [(Id. at 268a-69a, 300a-01a.)] Claimant further testified that Decedent injured his right hand while on a vacation in Texas immediately before March 8, 2007. [(Id. at 283a-84a.)] He accordingly cancelled a business trip to Europe, planned for March 10, because he wouldn‟t have been able to carry things and he had to have the stitches removed. [(Id. at 289a.)]

Claimant testified that Decedent‟s pattern was to be at his desk by 8:00 a.m. or before. [(Id. at 274.)] On the date of injury, Claimant called to Decedent at 11:30 a.m. to tell him she was leaving, and he responded. [(Id. at 276a-77a.)] She returned at 12:30 and stayed in her car talking on her cell phone until shortly before 1:00 p.m. She then entered the house, called down to Decedent, got no answer, and assumed he was on the phone. [(Id. at 277a-78a.)] Claimant watched television until 2:00 p.m., then called downstairs again to notify Decedent she was going to the grocery store. When he didn‟t answer, she went down to hand him a note asking if he needed anything. She saw Decedent sitting in his desk chair, spoke to him and got no answer, then was able to see that there was something wrong and called her son, then called 911. [(Id. at 279a-80a.)] Claimant stated that Decedent had a nose bleed and that later, she found bloody tissues and blood on the floor of the first-floor bathroom. [(Id. at 280a-81a.)] Decedent‟s cell phone was in that bathroom. [(Id. at 281a.)]

Claimant testified that she was not able to communicate from the date of injury until the time of his death. [(Id. at 282a.)] She stated that she believed Decedent fell at the front entry to the house because there was blood on the sidewalk and his glasses were off to the side. [(Id. at 291a.)] Claimant further stated that Decedent went out the front door and smoked in that general area, and that the home burglar alarm was on when she arrived at home and she had to disengage it. [(Id. at 283a, 292a.)]

Paul Werner, Decedent‟s son, testified that his mother called him in the early afternoon on March 8, 2007, and said that his father was in his basement office, looked like he was hurt, and was not responding. [(Id. at 396a.)] Mr. Werner further testified that he saw his father‟s glasses and some blood on the ground at the bottom of the two exterior steps leading to the front door of the home. [(Id. at 398a.)] He also found blood coming up the front stairs and into the foyer leading back to the bathroom on the main floor of the house, on the bathroom floor, and in the bathroom sink. [(Id. at 399a-400a.)] Mr. Werner stated that the front door was seldom used and was kept chained, and that the home alarm was usually set even during the day when people were home. [(Id. at 402a, 418a.)] Mr. Werner testified that he may have deleted personal emails from Decedent‟s company-issued laptop computer, but did not delete any business-related emails. [(Id. at 407a.)] He agreed that Decedent did personal work in the basement office and used the company-issued laptop for personal reasons. [(Id. at 430a.)]

Claimant submitted into evidence a death certificate indicating blunt force head injuries as the cause of Decedent‟s death. [(Id. at 334a.)] Claimant also submitted into evidence a packet of copies of email messages sent by [Employer], along with a printout from an email program indicating that Decedent sent 8 emails, 7 of which appeared to be work-related, between 7:52 a.m. and 10:12 a.m. on March 8, 2007. [(Id. at 26a-209a.)]

James Greenleaf, [Employer]‟s president and CEO, testified that [Employer] manufactures and sells industrial cutting tools and other products for the cutting tool industry and the electronic and medical device industry, and sells products in 56 countries. [(Id. at 439a, 442a.)] Mr. Greenleaf testified that when Decedent was hired in 1993, he worked out of his home and traveled. [(Id. at 443a-45a.)] He further testified that in the 2002-2003 timeframe, he determined that [Employer was] not getting full value from Decedent, and instructed management employees that he wanted to see Decedent in the Saegertown office if he wasn‟t calling on customers. [(Id. at 446a-47a.)] He testified that after that, Decedent was in Saegertown on a routine basis. [(Id. at 459a-60a.)]

David Galey, [Employer]‟s treasurer, testified that [Employer] reimbursed Decedent for costs associated with his home office, such as a telephone line and internet access, and that [Employer] did the same for all of its salesmen. [(Id. at 549a, 564a, 566a.)] . . . Mr. Galey further testified that [Decedent] was a salaried employee with no set schedule. [(Id. at 575a-76a.)]

David Rydbom, [Employer]‟s manager of sales and marketing, technical services, and engineering, testified that Decedent moved into a cubicle in [Employer]‟s Saegertown office around 2002 or 2003. [(Id. at 622a, 625a.)] . . . Mr. Rydbom stated that if Decedent worked at home, it was totally at his discretion, and that personal use of the company laptop was permitted. [(Id. at 629a, 634a.)] He further stated that Decedent was paid a set salary regardless of hours worked. [(Id. at 636a.)]

Mr. Rydbom testified that he received an email from Decedent on March 4, advising that Decedent sustained an injury requiring stitches while repairing a garage door, and that Decedent‟s planned trip to Europe had to be delayed. [(Id. at 638a-39a.)] Mr. Rydbom stated that he considered Decedent to be on sick leave due to his injury following his return from Texas, as Decedent was staying at home in New Jersey for medical appointments to take care of his injury. [(Id. at 640a-41a.)] He also testified that Decedent called him at 9:40 a.m. on March 8 and that they spoke for 19 minutes on various matters. [(Id. at 642a-44a.)] Mr. Rydbom subsequently agreed that telephone records showed that he had called Decedent. [(Id. at 667a.)] He also agreed that various emails sent from Decedent‟s computer on March 8, 2007 were work-related, with the last one sent at 10:12 a.m. [(Id. at 673a-77a.)]

[Employer]‟s human resource manager, Debra Spence, testified that because Claimant had cut his hand and had to cancel a trip, she assumed he was on sick leave. [(Id. at 705a, 714a.)]

[Employer] presented the testimony of Mary Beth Werner Lee, Decedent‟s daughter. [(Id. at 757a.)] Ms. Lee testified that she commonly spoke with her father by phone and corresponded with him via email during the workday, and that her father used his business computer for that correspondence. [(Id. at 764a-65a.)] She agreed that she was discussing ...


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