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Ace Wire Spring and Form Co. v. Workers' Comp. Appeal Bd. (Walshesky)

Commonwealth Court of Pennsylvania

June 10, 2014

Ace Wire Spring and Form Company, Petitioner
v.
Workers' Compensation Appeal Board (Walshesky), Respondent

Submitted March 14, 2014.

Page 924

Appealed from No. A11-0896. State Agency: Workers' Compensation Appeal Board.

Robert P. Walter, Pittsburgh, for petitioner.

Michael S. Russell, Pittsburgh, for respondent Samuel Walshesky.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE COVEY. Judge McGinley did not participate in the decision in this case.

OPINION

Page 925

ANNE E. COVEY, Judge.

Ace Wire Spring and Form Company (Employer) petitions this Court for review of the Workers' Compensation Appeal Board's (Board) September 30, 2013 order affirming the Workers' Compensation Judge's (WCJ) grant of Samuel Walshesky's (Claimant) claim petition. The issues for this Court's review are: (1) whether the Board erred by affirming the WCJ's determination that Claimant was in the course and scope of his employment at the time of his injury, and (2) whether the WCJ issued a reasoned decision. Upon review, we affirm.

Employer is a custom spring manufacturer. Claimant worked full-time for Employer as a press operator. It is undisputed that on December 4, 2007, after Claimant arrived at Employer's premises to begin his 8:00 a.m. shift, he slipped and fell on ice in the parking lot and hit his head.[1] He was taken to the hospital and was never able to return to work for Employer.

On May 8, 2009, Claimant filed a claim petition seeking full workers' compensation benefits for a " head injury which caused a left-sided stroke from his shoulder to his foot." Reproduced Record (R.R.) at 3a. Employer denied Claimant's claim petition, inter alia, because Claimant may not have been in the course and scope of his employment when the injury occurred. Hearings were held before a WCJ on June 16 and October 13, 2009, April 8, December 14, and December 28, 2010, and January 18, February 17 and February 23, 2011. On May 9, 2011, the WCJ granted Claimant's claim petition effective December 4, 2007, concluding that Claimant's " injury arose in the course of his employment and . . . was medically related thereto." WCJ Dec. at 10. Employer appealed to the Board. On September 30, 2013, the Board affirmed the WCJ's decision. Employer appealed from the Board's order to this Court.[2]

Page 926

Employer argues that the Board erred in affirming the WCJ's finding that Claimant was in the course and scope of his employment or furthering Employer's interests or affairs " when he arrived at Employer's facility an unreasonable time prior to his scheduled work shift." [3] Employer Br. at 17. We disagree.

" [I]n a claim proceeding, the employee bears the burden of establishing a right to compensation and of proving all necessary elements to support an award." Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 535 Pa. 135, 634 A.2d 592, 595 (Pa. 1993). Section 301(c)(1) of the Workers' Compensation Act (Act)[4] provides that a compensable injury under the Act must have occurred within the course of the Claimant's employment, and must be causally related thereto. U.S. Airways v. Workers' Comp. Appeal Bd. (Dixon), 764 A.2d 635 (Pa. Cmwlth. 2000).

An injury may be sustained 'in the course of employment' under Section 301(c)(1) of the Act in two distinct situations: (1) where the employee is injured on or off the employer's premises, while actually engaged in furtherance of the employer's business or affairs; or (2) where the employee, although not actually engaged in the furtherance of the employer's business or affairs, (a) is on the premises occupied or under the control of the employer, or upon which the employer's business or affairs are being carried on, (b) is required by the nature of his employment to be present on the employer's premises, and (c) sustains injuries caused by the condition of the premises or by operation of the employer's business or affairs thereon.

Id. at 640 (emphasis added); see also Workmen's Comp. Appeal Bd. v. U.S. Steel Corp., 31 Pa.Cmwlth. 329, 376 A.2d 271 (Pa. Cmwlth. 1977)( Slaugenhaupt ). Thus, if an employee is " actually engaged in furtherance of the employer's business or affairs" when he is injured on an employer's premises, the injury was sustained in the course of his employment. U.S. Airways, 764 A.2d at 640.

The operative phrase 'actually engaged in the furtherance of the business or affairs of the employer,' . . . must be given a liberal construction. . . . [D]etermining whether an employee is acting in the course of employment at the time of an injury is a question of law, which must be based on the findings of fact made by the WCJ.

Lewis v. Workers' Comp. Appeal Bd. (Andy Frain Servs., Inc.), 29 A.3d 851, 862 (Pa. Cmwlth. 2011) (citation omitted; emphasis added).

In the case at bar, the WCJ accepted Claimant's and Employer's witnesses' deposition transcripts into evidence. During Claimant's August 25, 2009 deposition, he testified that on December 4, 2007 he parked in Employer's parking lot at approximately 6:30 a.m. Claimant went into Employer's building, picked up his clean uniforms and took them back out to his car, " because normally [he] would forget them if [he] didn't take them out." R.R. at 20a. He explained that as he returned to the building he slipped on ice and struck

Page 927

the right side of his head, causing it to bleed. He went into Employer's building, and reported the incident to Employer's general manager Richard " Richey" Froehlich (Froehlich).[5] Claimant stated, at Froehlich's insistence, he went into the bathroom to wash the blood off and, while in the bathroom he believes he passed out, because the next thing he recalled was waking up in a nursing home paralyzed on his left side.[6]

Claimant acknowledged that his shift did not begin until 8:00 a.m. on the date of his accident, " but [he] got there early. . . . [b]ecause of traffic." R.R. at 22a. Although he lives only five miles from work, he left early " to avoid traffic in downtown Pittsburgh." R.R. at 37a. He maintained that if he left his house later to get to work, " [he'd] have got to work late" and his pay would have been docked, so he always got to work early. R.R. at 22a; see also R.R. at 34a. Claimant maintained that after putting his uniforms in the car, he intended to return to Employer's building and have coffee in the break room until his shift began at 8:00 a.m.

Employer offered Froehlich's January 27, 2011 deposition testimony which the WCJ admitted into evidence. Froehlich oversees Employer's day-to-day operations. He described that Employer's office is located in the front of the building, and the manufacturing plant is located in the back portion of the building. An alarm system controls each building section separately.[7] Two doors provide access between the two portions of the building from the inside, which are unlocked daily from the office side. Manufacturing employees park to the rear of the building. Office employees park in front of the building, which is where Froehlich typically parks.

Froehlich explained that Employer's inventory manager Donald Ellick (Ellick), Dick Macheeka, and the foremen have keys to the building. Once the rear door is unlocked, the electronic alarm must be disarmed with each key holder's individual alarm passcode. Claimant had neither a building key nor a passcode. Froehlich also described that Employer provided an optional uniform cleaning service through UniFirst in December 2007. UniFirst dropped off clean uniforms and picked up dirty ones in the manufacturing lunchroom on Mondays between 10:00 a.m. and noon. On Monday, December 3, 2007, a day on which Claimant worked, UniFirst delivered clean uniforms.

Froehlich testified that on December 4, 2007, a Tuesday morning, he arrived at work at approximately 6:30 a.m., parked in the front lot and entered Employer's facility through the front door. As was his routine, Froehlich turned the lights on, hung up his coat, turned his computer on, started the coffee, unlocked the doors between the office and the plant,[8] and then checked the fax machine for orders. While he was at the ...


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