Argued April 22, 2014.
Appealed from No. A11-1712. State Agency: Workers' Compensation Appeal Board.
John W. Brown, Pittsburgh, for petitioner.
Templeton Smith, Jr., Pittsburgh, for respondent Parkway Service Station.
BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE COHN JUBELIRER.
RENÉ E COHN JUBELIRER, Judge
Walter Wetzel, deceased, c/o Walter Wetzel III (Claimant) petitions for review of an Order of the Workers' Compensation Appeal Board (Board) reversing a Decision of the Workers' Compensation Judge (WCJ) granting a Claim Petition filed on behalf of Walter Wetzel (Decedent), now deceased. On appeal, Claimant argues that the Board erroneously concluded that Decedent abandoned his employment and was not furthering the business affairs of Parkway Service Station (Employer) when Decedent was injured while attempting to
stop a thief from leaving Employer's premises after an attempted robbery of Employer's store. Given the facts, as found by the WCJ, we agree that the Board erred; therefore, we reverse.
Decedent was employed by Employer as a management employee at Employer's store. (WCJ's Decision, Findings of Fact (FOF) ¶ 40.) Decedent filed a Claim Petition on January 4, 2010 alleging that, as a result of being struck by a vehicle on November 28, 2009, he sustained a work-related severe traumatic brain injury, which rendered him comatose and permanently disabled and incapacitated. (FOF ¶ 1.) Employer denied that Decedent's injuries were sustained in the course and scope of his employment and alleged that Decedent's injuries were the result of a violation of a positive work order. (FOF ¶ ¶ 2-3.) Decedent died on April 2, 2010 and a Modification and Review petition was filed on behalf of Decedent asserting a claim for burial and medical expenses. (FOF ¶ 4.) Employer denied that Decedent's death was causally related to his employment or that his death was the result of injuries sustained while he was acting in the course and scope of his employment. (FOF ¶ 5.) The petitions were consolidated and hearings ensued before the WCJ.
The parties stipulated that Decedent was struck by a vehicle on November 28, 2009 at approximately 8:01 p.m., while on Employer's premises. (Board Op. at 1.) The issues before the WCJ were whether Decedent violated a positive work rule by possessing a gun on Employer's premises and whether he was in the course and scope of his employment when he was struck and severely injured by a vehicle while trying to stop a fleeing individual who had attempted to rob Employer's store. In support of the Claim Petition, Decedent presented the testimony of a medical expert and three co-workers, Lucinda Wolff, Howard Todd, and Otha Alexander. In opposition, Employer presented the testimony of: (1) Garfield B. Smith, Employer's daytime manager; (2) Anthony J. Mazzarini, Jr., Employer's general manager; and (3) Devin M. Rankin, a customer who witnessed the events of November 28, 2009.
With regard to the issue of whether Decedent violated a positive work rule by possessing a gun while on Employer's premises, the facts, as found by the WCJ, and the testimony, as recited by the Board, are as follows. Wolff testified that: (1) there were many robbery attempts and attacks on employees over the years; (2) Decedent and other employees, including Mazzarini, always carried a gun while working and that no one ever told Decedent not to carry a weapon; and (3) Decedent used a firearm in 2007 to stop an attempted robbery of Employer's store. (FOF ¶ ¶ 16(b), 36.)
Todd testified that: (1) Mazzarini and Decedent both carried guns at work and that Employer knew that Decedent carried a gun; (2) there was no policy against employees carrying guns and that he had never received an employee handbook during the 27 years he worked for Employer; and (3) Decedent shot a robber during a robbery attempt in 2007 and continued to carry a gun after that incident. (FOF ¶ 17(c)-(e).) Alexander testified that he ...