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Ryan Miller v. Workers' Compensation Appeal Board (Millard Refrigerated Services and Sentry Claims Service

June 22, 2012

RYAN MILLER,
PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (MILLARD REFRIGERATED SERVICES AND SENTRY CLAIMS SERVICE), RESPONDENTS



The opinion of the court was delivered by: Senior Judge Friedman

Submitted: April 13, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Ryan Miller (Claimant) petitions for review of the November 18, 2011, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the decision of a workers' compensation judge (WCJ) to deny and dismiss Claimant's claim petition. We affirm.

On September 1, 2009, Claimant filed a claim petition alleging that on August 12, 2009, he sustained an injury to his foot during the course and scope of his employment with Millard Refrigerated Services (Employer). The WCJ held a hearing on November 16, 2009.

Claimant testified at the hearing that he worked for Employer in the ice cream department for five months before it shut down, and he was then placed as a pallet jack driver. Claimant watched a video and knew how to complete pre-shift inspection and battery changes on the pallet jack. Claimant demonstrated his ability to drive the pallet jack and took a test regarding the pallet jack. In May 2009, Claimant ran into a freezer door with the pallet jack. After that incident, he discussed driver safety with Employer. Claimant testified that he would sometimes "jump on a forklift." Claimant admitted that the forklift requires certification to operate and that he does not have the certification. Claimant knew unauthorized personnel were not permitted to operate the forklift. (WCJ's Findings of Fact, No. 5.)

Claimant further testified that, on August 12, 2009, Claimant was scheduled to work the second shift, 4:00 p.m. to 12:30 a.m.*fn1 However, Claimant stated that a supervisor told Claimant that Claimant needed to stay until 1:30 a.m. to complete his work. Claimant finished work at 12:58 a.m. Instead of leaving, Claimant went to the restroom, then jumped on the forklift and drove it around for a while before driving it to the punch-out area. Claimant stated that he drove the forklift because it was "fun to drive." Claimant was not authorized to drive the forklift. (Id.)

At 1:15 a.m., Claimant, while riding the forklift to the punch-out area, crashed into a pole. Claimant's foot had been sticking out of the forklift and was crushed upon impact. Claimant knew he was not to extend any part of his foot beyond the platform of the forklift. (Id.)

Claimant testified that Scott Butz, a lead man for the 4:00 p.m. to 12:30 a.m. shift, saw him drive the forklift and never told Claimant that he could not operate the forklift. Claimant stated that it was a common practice for employees to drive the forklifts to the punch-out area and that supervisors said nothing about it. Claimant further stated that he was required to stay until 1:30 a.m. on the morning of the accident. (WCJ's Findings of Fact, No. 6.)

Employer presented Butz's testimony. Butz testified that he hired Claimant to run the pallet jack, but Claimant was not permitted to use the forklift. Butz stated that Claimant was told not to be on other equipment unless he was certified. Butz stated that he did not see Claimant on the forklift. Butz further stated that Claimant had not asked to practice on the forklift, was not assigned a forklift, and had not been observed for practice purposes on a forklift. Employees are not allowed to operate equipment without being certified. (WCJ's Findings of Fact, No. 7.)

The WCJ found Claimant not credible with regard to his testimony about Butz seeing him on the forklift, about Butz not telling Claimant that he could not drive the forklift, and about being required to stay at work until 1:30 a.m. on the morning of August 12, 2009. The WCJ found Butz entirely credible. (WCJ's

Findings of Fact, Nos. 6-8.)

The WCJ determined:

Claimant was not acting in furtherance of the employer's interests at the time of the injury. The following prohibited activities were ...


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