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O'Rourke v. Workers' Compensation Appeal Board (Gartland)

Commonwealth Court of Pennsylvania

January 8, 2014

Laura O'Rourke, Petitioner
Workers' Compensation Appeal Board (Gartland), Respondent

Argued: November 13, 2013




Laura O'Rourke (Claimant) petitions for review of the August 29, 2012 order of the Workers' Compensation Appeal Board (Board), which reversed the decision of a workers' compensation judge (WCJ) granting Claimant's claim, review, and medical review petitions. We reverse.

Background and Procedural History

This case involves a state-funded program under which Claimant was employed by her son, Joshua Gartland (Employer), to provide attendant care for him at her residence in exchange for an hourly wage. On May 7, 2009, Claimant filed a claim petition against Employer and the State Workers' Insurance Fund alleging that she sustained work-related injuries while in the course of her employment. Claimant averred that while she was sleeping in her bed, Employer cut her throat with a butcher knife and inflicted three other stab wounds, resulting in loss of functioning in her left arm, soft tissue injuries, and psychological injuries. On October 27, 2009, Claimant filed a review and a medical review petition, alleging that she needs medical treatment and is unable to work because she suffers from post-traumatic stress disorder. (Reproduced Record (R.R.) at 3a-5a.)

During the hearings, Claimant, Tonya Volkman, and Maria Phillips (both of whom are associated with the state-funded program) testified live or via deposition. Employer did not participate in the proceedings before the WCJ.[1] The WCJ's relevant findings of fact and credibility determinations are as follows:

5. [Employer], based on the credible testimony of [Claimant] is the natural son of [Claimant.] [Employer] … had not lived with his mother since he was 15 years old. [Employer] had significant health issues resulting from a long history of drug problems. But, he did not have a history of violence before April 11, 2009. [emphasis added.]
6. Based on the credible testimony of [Claimant], [Employer] underwent the amputation of his leg at Presbyterian Hospital in Pittsburgh sometime in 2007…. He then spent 6 months at the Riverside Rehabilitation Center … [where] Maria Phillips, coordinator for the Three Rivers Center for Independent Living, approached [Claimant] … about caring for [Employer] in her home until he got better and could live independently. [Claimant] agreed [and Employer] moved into his mother's residence on July 7, 2008. [emphasis added.]
7. Based on the credible testimony of both [Claimant] and Tonya Volkman, coordination specialist for AccessAbilities and the attachments to Ms. Volkman's deposition, funding (payment for [Employer's] care) was provided by the state under a program with the Pennsylvania Department of Welfare. Under the consumer model, [Employer] was established as [Claimant's] employer with AccessAbilities acting as a payroll agent.[2]
8. [Claimant] … was hired to provide attendant care to [Employer]. That care included assisting him with his transfers [and] providing personal care[, ] including assistance with bathing and dressing, doing laundry, preparing meals, and providing transportation….
9. Based on the credible testimony of Ms. Volkman, [Employer's] care did not include 24-hour or nighttime care even though the care was to be provided in [Claimant's] home. [Employer] did not meet the program's qualifications for 24-hour care since he did not suffer from a traumatic brain injury. Even if he had met the qualifications, the nighttime provider of the care had to be awake, not sleeping, during the period providing nighttime care. But, as [Employer] was the employer, he could request care during evening or night time hours provided the worker was awake when providing the care. [emphasis added.]
10. Based on [Claimant's] credible testimony and Ms. Volkman, funding for [Claimant's] wages was provided for up to 64 hours per week or 128 hours every two weeks. [Claimant] worked 40 hours from Monday through Friday and 12 hours per day on Saturday and Sunday.
15. [Claimant's] timesheets … revealed that she did not work consistently in the evenings during the week days…. Her weekend hours always included evening hours [and] she would normally work up to 12 hours per day on the weekend. [Claimant] could not get the 12 hours per day on the weekend unless she [worked] evening hours.

(WCJ's Findings of Fact Nos. 5-10, 15.)

The WCJ described the incident in which Claimant sustained her injury as follows:

4. On Friday, April 10, 2009, [Claimant], based on her credible testimony went to bingo in the evening…. When she returned from bingo around 10:00 p.m., [Employer] wanted her to fix him something to eat. [Claimant] and [Employer] argued because she wanted to change her dress before getting him something to eat. After changing her dress, she got [Employer] something to eat. Before going to bed around 11:30 p.m., [Claimant] made the couch up as a bed for [Employer]. He routinely slept on the couch. Around 1:30 a.m. on Saturday, April 11, 2009, while she was asleep in her bed, [Employer] attacked her.

(WCJ's Findings of Fact No. 4.)

The WCJ further found as follows:
16. Although [Claimant] logged her hours … for Friday, April 10, 2009, as 8:35 a.m. to 4:10 p.m., this [WCJ] finds her testimony credible that, after returning from bingo around 10:00 p.m., she had fixed [Employer] something to eat and made his bed before going to sleep. Her testimony that she intended to include the time for fixing the meal in the hours listed for Saturday was credible.
17. This [WCJ] finds that [Claimant] was not engaged in the furtherance of [Employer's] business or affairs at the time of the attack. The attack occurred while [Claimant] was sleeping. Although [Claimant] testified that she slept in the downstairs bedroom in order to hear [Employer] if he needed her during the night, she never testified that she routinely provided care to him during the night. In addition, his care plan, upon which the funding for her wages was based, did not include nighttime care. Even if it did, it required the nighttime care giver to remain awake for the nighttime hours.
18. Furthermore, this [WCJ] finds that [Employer] did not establish that [the] attack was motivated by reasons that were strictly personal … and not related to [the] employment relationship…. The record taken as whole only established that [Employer] attacked [Claimant] in her bed at their home. It never established why the attack occurred.
19. This [WCJ] finds, given the circumstances as to how the employment relationship between [Claimant] and her son evolved, that the fact that she could and did provide care to [Employer] in her home was crucial to the employment relationship that she had with her son. This situation is unique in that their employment relationship arose out of the family relationship. The care provided by [Claimant] could have been provided to [Employer] at another residence. But, before moving in with [Claimant] in July 2008, [Employer] did not have another residence. [Employer] was staying at the Riverside Rehabilitation Center. When Ms. Phillips from the Three Rivers Counsel for Independent Living approached [Claimant], she asked her to provide care for [Employer] in her home, not in a separate residence established for [Employer]. Having [Employer] move into her home enabled [Claimant] to provide the state funded care required by [Employer]. Although Ms. Volkman testified that the program funding [Claimant's] wages for providing [Employer's] care did not require ...

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