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Ronald K. Lewis v. Workers' Compensation Appeal Board (Andy Frain Services

September 22, 2011

RONALD K. LEWIS, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (ANDY FRAIN SERVICES, INC.), RESPONDENT



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

Argued: April 5, 2011

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH , Judge

OPINION BY JUDGE BROBSON

Petitioner Ronald K. Lewis (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board), dated July 2, 2010. The Board affirmed the decision and order of a Workers' Compensation Judge (WCJ), denying Claimant's claim petition. The WCJ concluded that Claimant was not entitled to benefits because (a) he did not meet his burden to prove that he was within the scope of his employment at the time of the injury and (b) he violated a positive work order. For the reasons that follow, we affirm the Board.

We begin by reciting what appear to be undisputed and relevant facts for purposes of reviewing the issues on appeal.*fn1 In June 2007, Oakmont Country Club (Oakmont), in Oakmont, Pennsylvania, hosted the annual United States Golf Association event known as the United States (U.S.) Open. Andy Frain Services, Inc. (Employer) provided services at the U.S. Open at Oakmont. Employer hired Claimant to work at the U.S. Open. Claimant showed up for work at the U.S. Open on June 9, 2007. His assigned job duty that day was to watch an open tent with a Lexus vehicle on display (Lexus Tent). His shift was 7:00 p.m. (June 9, 2007) to 7:00 a.m. (June 10, 2007). Claimant testified that during his shift, at approximately 6:00 a.m., he heard sounds and saw lights. Approximately forty (40) minutes later, before his shift ended, he decided to check the surrounding areas where he previously had seen the lights and heard the noises. He left the Lexus Tent. While away from the Lexus Tent, but still on the Oakmont grounds and before his shift ended, Claimant was injured.

On July 23, 2007, Employer issued a Notice of Compensation Denial (NCD). In the NCD, Employer indicated (by a check mark) the following reason for denial: "The employee was not employed by the defendant." (Reproduced Record (R.R.) at 37a.) On December 13, 2007, Claimant filed a claim petition, seeking temporary total disability benefits and payment of related medical expenses against Employer, alleging that he sustained work-related head and back injuries while in the course of his employment with Employer on June 10, 2007. In its answer to the claim petition, in addition to claiming that Claimant was not an employee at the time of his injury, Employer also raised the affirmative defense that Claimant's injuries were not compensable because Claimant was outside the course of his employment when he was injured. (Id. at 39a.)

With the agreement of the parties, the WCJ bifurcated the proceedings. The only issue decided by the WCJ, affirmed by the Board, and now on review by this Court is the question of whether Claimant was in the course of his employment at the time of his injury. The WCJ held a hearing on this question over five (5) days.

The conflicting evidence at the hearing focused primarily on the questions of where on the Oakmont grounds Claimant was injured and how Claimant was injured in the early morning of June 10, 2007. The parties also presented conflicting evidence about Claimant's job title and responsibilities. Claimant testified that he was hired as a security guard, and Employer's witnesses testified that Claimant was hired as an event ambassador, a job which requires him to remain in the Lexus Tent unless relieved by Employer or Lexus personnel. The WCJ summarized the witnesses testimony in Findings of Fact numbers 1 through 6, which Claimant does not challenge on appeal. In Finding of Fact number 7, the WCJ found (or concluded) that Claimant did not meet his burden of proof. Finding of Fact number 7 provides:

7. Based upon a review of the foregoing, as well as all evidence of record, I find that the claimant has not met his burden of proof in the Claim Petition.

a. I find the testimony of employer's witnesses to be more credible than the testimony of the claimant.

b. The claimant's testimony rambled and was inconsistent, and confusing. At the first hearing he could not identify whether he had fallen on bleachers to the right or left of the Lexus tent. At the final hearing, he stated that he fell off the Grandstand.

c. On the first time he testified he stated that he did not know where he fell or where he was found. Despite a ten day admission to the hospital he would not admit that he was treated for alcohol withdrawal.

d. I do not accept his testimony regarding his job duties as an event ambassador. I accept the employer's witnesses' description as the most credible. I accept the testimony of Ben Johnson, David Clayton, Scott Dennison and John Storer as the most credible. I do not find claimant credible that he was hired as a security guard. He was hired as an event ambassador and his job was to sit in the Lexus tent and watch the car. I find the employer's testimony credible that the claimant was provided a security radio. I accept their testimony that the claimant was directed to use the radio if he needed a break or if there was some type of problem.

e. I find the testimony of the employer's witnesses as credible that the claimant contacted them ...


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