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1912 Hoover House Rest. v. Workers' Comp. Appeal Bd. (Soverns)

Commonwealth Court of Pennsylvania

November 10, 2014

1912 Hoover House Restaurant, Petitioner
v.
Workers' Compensation Appeal Board (Soverns), Respondent

Submitted August 29, 2014

Page 442

Appealed from No. A12-1561. State Agency: Workers' Compensation Appeal Board.

Eugene N. McHugh, Harrisburg, for petitioner.

Bradley R. Bolinger, Chambersburg, for respondent.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 443

 COHN JUBELIRER, JUDGE

1912 Hoover House Restaurant (Employer) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) Decision granting Sean Soverns's (Claimant) Claim Petition. The WCJ concluded, in relevant part, that Claimant was injured during the course and scope of his employment when he sustained facial lacerations and permanent scarring when he was bitten by a co-worker's dog. On appeal, Employer argues that: (1) the WCJ's Decision is not reasoned; (2) the WCJ's findings of fact do not support the conclusion that Claimant was in the course and scope of his employment at the time he was injured; and (3) the WCJ erred by making this conclusion. Discerning no error, we affirm.

Claimant was primarily employed in the paint department of a manufacturer averaging 60-65 hours per week. (WCJ 2010 Decision, Findings of Fact (2010 FOF) ¶ 2.) Claimant was also employed part-time by Employer as a line cook one evening each week. (2010 FOF ¶ 1.) Claimant filed a Claim Petition on April 19, 2010 alleging that, as a result of being bitten by a co-worker's dog on March 16, 2010, he sustained facial lacerations in the course of his employment. (Claim Petition at 1, R.R. at 23a.) Claimant sought payment for disfigurement, medical bills, and counsel fees.

Page 444

(Claim Petition at 2, R.R. at 24a.) Employer timely filed an answer denying that Claimant's injuries were sustained in the course and scope of his employment. (Employer's Answer to Claim Petition, R.R. at 26a-27a.) Hearings before the WCJ ensued.

In support of the Claim Petition, Claimant presented his own testimony and submitted photographs, medical records, and unpaid medical bills into the record. In opposition, Employer presented the testimony of its owner, Barbara Persun (Owner). Based on the evidence presented, the WCJ found as follows.

When Claimant arrived at work on March 16, 2010, he got the line going and reviewed the specials with the chef. (2010 FOF ¶ 3.) One of Claimant's co-workers stated that her father would be stopping by with her dog. (2010 FOF ¶ 3.) Claimant went outside to have a cigarette after the dog had arrived at the restaurant. (2010 FOF ¶ 4.) While on his smoke break, Claimant had a conversation with the co-worker's father. (2010 FOF ¶ 4.) Claimant petted the dog and let the dog lick his face. (2010 FOF ¶ 4.) " When . . . [C]laimant went to stand up, the dog growled and bit" Claimant's lower lip. (2010 FOF ¶ 4.)

Claimant was permitted to take smoke breaks " while he was working for [Employer]." (2010 FOF ¶ 6.) At the time of the incident, Claimant " was in an approved area where everybody smoked." (2010 FOF ¶ 5.) Employer " had supplied an ashtray tower for the employees' use." (2010 FOF ¶ 5.) Claimant was " approximately three [feet] away from the ashtray tower," and " was actually smoking a cigarette when he was bitten by the dog." (2010 FOF ¶ ¶ 5, 8.) Claimant testified that, " at the time he was bitten, there was no written or oral rule from [Employer] that prevented any employee from bringing a dog to the break area." (2010 FOF ¶ 7.) As a result of the dog bite, " [C]laimant has a permanent visible scar on the lower right . . . part of his lower lip," and a second " permanent visible scar on the center part of his chin directly below his lower lip." (2010 FOF ¶ 11.) In addition, " [C]laimant missed six days of work" and " incurred numerous unpaid medical bills." (2010 FOF ¶ 13.)

Owner testified, in relevant part, that she was not present when Claimant's injury occurred. (2010 FOF ¶ 15.) Owner also testified that " employees are allowed two smoking breaks per shift," and that " [t]here is no exact amount of time that employees are allowed to be outside for their break." (2010 FOF ¶ 17.) In addition, Owner admitted that there was no employee handbook or posted list of rules notifying the employees what is required or expected of them. (2010 FOF ¶ 18.)

On December 2, 2010, the WCJ issued a Decision and Order granting the Claim Petition. The WCJ concluded that Claimant met his burden of proof and sufficiently established that he sustained an injury to his face on March 16, 2010, while in the course and scope of his employment, " resulting in serious, permanent, and unsightly disfigurement." (WCJ 2010 Decision, Conclusions of Law (2010 COL) ¶ ¶ 2-3.) Accordingly, the WCJ awarded Claimant 63 weeks of workers' compensation (WC) " benefits based on the permanent scarring of his lower lip and chin." (2010 COL ¶ 5.) In calculating Claimant's Average Weekly Wage (AWW), the WCJ accepted Employer's evidence that Claimant's AWW was $31 per week and Claimant's testimony that he earned $900 per week from his concurrent ...


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