Submitted February 21, 2014.
Appealed from No. A12-0307. State Agency: Workers' Compensation Appeal Board.
Elizabeth H. Marcon, Center Valley, for petitioner.
Quintes D. Taglioli, Allentown, for respondent Carol Kloss.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE McCULLOUGH. DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN.
PATRICIA A. McCULLOUGH, Judge
PPL (Employer) petitions for review of the August 21, 2013 order of the Workers' Compensation Appeal Board (Board),
which affirmed the decision of a workers' compensation judge (WCJ) granting the claim petition filed by Carol Kloss (Claimant). We reverse.
Employer employed Claimant for approximately thirty years, with her most recent job as steno clerk. Claimant worked in Employer's North Building, located at Two North Ninth Street, Allentown, Pennsylvania. The North Building sits behind Employer's Tower, which stands approximately twenty-three stories high and is located at the corner of Ninth and Hamilton Streets. A multi-level parking garage, the Linden Street Parking Deck (Linden Deck), sits to the west of the North Building. The Linden Deck is served by stairs and elevators and the third floor (Level C) connects directly with the North Building via an enclosed skywalk. (Finding of Fact No. 1.)
Employer maintains a parking program for its employees via a series of agreements with the owner of the Linden Deck and the Allentown Parking Authority, which operates a parking garage known as the Spiral Deck located less than a block to the east of the North Building. The Linden Deck is owned by a limited partnership in New York. The owner of the Linden Deck is responsible for its maintenance. The Linden Deck is used
exclusively by Employer's employees and employees of the nearby KNBT Bank. However, Employer's employees use the vast majority of the 1,100 parking spaces at the Linden Deck. (Findings of Fact Nos. 2-3.)
Employer's parking program is a subsidized program which allows employees to pay $24.00 per month to park at the Linden Deck. Employer contributes the remainder of the cost, which is paid to the owner of the Linden Deck. The parking spots are assigned to employees on a first come, first serve basis. The Linden Deck does not offer public parking and employees can only gain access through the use of a magnetic swipe card issued by the owner of the Linden Deck. The Linden Deck is separated from the North Building by Fountain Street, a public street. Another public street, Court Street, separates the North Building and the Tower. The skywalk, which is owned by Employer, connects the Linden Deck and the North Building and bridges Fountain Street. The North Building is also connected to the Tower via a smaller structure that bridges Court Street. (Findings of Fact Nos. 4-6.)
On December 15, 2009, Claimant used her swipe card and drove into the Linden Deck. Claimant parked on the second floor (Level B), walked to a glass-enclosed area, and took the elevator to Level C. Claimant proceeded across the skywalk and into the North Building. After her shift had ended, Claimant exited the North Building onto a sidewalk that ran parallel with Linden Street. She crossed over Fountain Street and used her swipe card to gain access to the lower level of the Linden Deck. As Claimant was approaching the elevator inside the Linden Deck, she tripped and fell to the ground, injuring her right arm and shoulder. Claimant was
unable to return to work. (Findings of Fact Nos. 6-7, 12.)
On January 5, 2010, Employer issued Claimant a notice of workers' compensation denial alleging that Claimant did not sustain a work-related injury within the course and scope of her employment. Claimant thereafter filed a claim petition against Employer alleging that she sustained injuries to her right arm and head as a result of her fall in the course and scope of her employment. Employer filed an answer denying the allegations of Claimant's petition. The petition was assigned to a WCJ. The parties agreed to bifurcate the proceedings and the WCJ first heard evidence relating to the course of employment issue.
Claimant testified as to the facts described above relating to Employer's parking program and her fall in the Linden Deck. Claimant stated that there were three different ways to exit her building and return to the Linden Deck: (1) exit through the main lobby of Employer's Tower, proceed up North Ninth Street to either Linden or Court Streets, and access a stairwell at the Linden Deck with a swipe card; (2) exit the North Building and use a swipe card to go back across the skywalk and into the Linden Deck at Level C; or (3) exit the North Building on Linden Street, turn left on Fountain Street, and use a swipe card to gain access to a lower level of the Linden Deck (the path she chose on the day she was injured). (R.R. at 146a-48a.)
Claimant testified that after her fall, her head was bleeding and her right arm felt broken. A co-worker came to her aid and, thereafter, Claimant received emergency treatment at Lehigh Valley Hospital, including three staples to close her head wound and surgery on her right arm. The surgery was performed by Scott Sexton, M.D., a physician with VSAS Orthopaedics in Allentown. Claimant subsequently was placed under the care of Neal Stansbury, M.D., a colleague of Dr. Sexton at VSAS Orthopaedics, for ongoing pain in her right shoulder. (R.R. at 158a-63a.)
On cross-examination, Claimant stated that she has had pain in her right arm and shoulder since the date of her accident. Claimant denied experiencing any arm or shoulder pain prior to this time. Upon questioning from the WCJ, Claimant testified that she was unable to return to work because her job involves computer work and she is unable to keep her arm raised long enough to complete her regular job duties. Claimant noted that her fall occurred within ten minutes after her shift had ended. Claimant acknowledged that there are other parking garages and metered street parking near her building. Claimant also stated that Employer deducts money from her paycheck for parking and that she obtained her spot through a lottery offered by Employer following construction of the Linden Deck. (R.R. at 175a-81a.)
Employer presented the testimony of Robert Horner, Jr., Employer's director of corporate facilities. In this capacity, Horner is responsible for the operation, maintenance, and construction/renovation of Employer-owned office buildings, warehouses, and service centers. Horner testified that Employer provides a subsidy for parking to the 2,300 to 2,400 employees who work in Employer's general office complex in Allentown. In other words, the employees pay a reduced monthly rate of $24.00 and Employer pays the remainder pursuant to agreements between Employer and the owners of nearby parking garages. Horner noted that Employer has agreements with the owner of the Linden Deck and the Allentown Parking Authority, which operates a garage known as the Spiral Deck to the east of the office complex. Horner stated that employees are
not required to park in either facility, but these are the only facilities for which the subsidy is available. Horner also stated that Employer provides a subsidy program for public bus transportation with the Lehigh and Northampton Transportation Authority. (R.R. at 191a-97a.)
Horner noted that Employer is not the sole occupant of the Linden Deck. Horner stated that the Linden Deck has a single vehicle entrance consisting of two lanes, two vehicle exits, and four pedestrian entrances, including the skywalk. Horner testified that the owner of the Linden Deck provides swipe cards for use at the vehicle entrance, but he acknowledged that in cases where an employee forgets this swipe card, the employee can call security, a contracted guard service hired by the Linden Deck owner, and swipe his/her Employer identification card to gain entry. Horner also noted that employees can use their Employer identification cards ...