Pipeline Systems, Inc. and Continental Western Insurance Company, Petitioners
Workers' Compensation Appeal Board (Pounds), Respondent
Submitted, May 1, 2015
Appealed from No. A12-1474. State Agency: Workers' Compensation Appeal Board.
Audrey J. Copeland, King of Prussia, for petitioner.
Kathleen J. Hayne Robertson, New Castle, for respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.
JAMES GARDNER COLINS,
Pipeline Systems, Inc. (Employer) and Continental Western Insurance Company petition for review of the August 5, 2014 order of the Workers' Compensation Appeal Board (Board) affirming the April 4, 2012 interlocutory decision and order, the September 27, 2012 decision and order, and the October 2, 2012 amended decision issued by the Workers' Compensation Judge (WCJ). Before this Court, Employer argues that the WCJ erred in concluding that Franklin Pound (Claimant) was within the course and scope of his employment under the Workers' Compensation Act (Act) when he injured his left leg, knee, foot, ribs, back, head and lungs.
The facts in the instant matter are not in dispute. The question before this Court is whether the circumstances giving rise to Claimant's injury demonstrate that Claimant's injury was in the course of and causally related to his employment, thereby defining his injury as work-related and within the ambit of the Act. Penn State University v. Workers' Compensation Appeal Board (Smith), 15 A.3d 949, 952 (Pa.Cmwlth. 2011).
Employer obtained a contract to install a new addition to the Sewickley Borough Sanitation Department Plant (Borough Plant), which included the installation of pipelines and manholes. (Record Item (R. Item) 4, April 4, 2012 WCJ Interlocutory Decision, Testimony & Evidence ¶ 1 (4/4/12 WCJ Decision, T. & E. ¶ 1); March 11, 2011 Hearing Transcript (3/11/2011 H.T.) at 14, 17-18, 47, 54.) In January 2010,
Claimant began working on the Borough Plant job site for Employer. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 18, 51.) The Borough Plant job site contained a concrete pit with a ladder attached to the side. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 19-20, 48.) Prior to July 2010, Claimant had performed work in the pit for Employer. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 24-25, 48, 51.)
On July 29, 2010, Claimant and three fellow employees of Employer were at the Borough Plant installing new pipeline in an area located approximately thirty feet away from the concrete pit. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 19-20, 48.) Claimant heard an employee of the Borough Plant call out for help, " ...man down. Jack fell," and Claimant and two of Claimant's co-workers rushed to the area of the pit to provide assistance. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 20, 24, 48, 57.) Once there, Claimant discovered that a Borough Plant employee was lying at the bottom of the pit. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 19.) Claimant, along with Dennis, the Borough Plant Manager, and Sean, an inspector with an engineering company on the job site, descended the ladder in an effort to assist the Borough Plant employee. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 21, 49.) When Claimant finished descending the ladder, Claimant examined the Borough Plant employee and indicated to the others that Claimant " knew he was gone." (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 21.)
Claimant testified that when he stood up, he felt as though the breath was being sucked out of him, and he knew that something was wrong. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 21-22.) Claimant tried to climb out of the pit, but lost consciousness before he could reach the top of the ladder and fell approximately 20 feet to the bottom of the pit. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 21-22.) Claimant's co-employees determined that there was gas in the pit and they responded by pumping fresh air into the pit utilizing a fresh air machine owned by Employer. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 22-23, 50, 56.) Claimant was hospitalized and subsequently learned that there had been methane gas in the pit. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 23.) It was Claimant's recollection that he had not been warned about any methane gases in the pit. (4/4/12 WCJ Decision, T. & E. ¶ 1; 3/11/2011 H.T. at 23.) Claimant also stated that no one from the Borough Plant or elsewhere warned him not to go into the pit when he did. (4/4/12 WCJ Decision, T. & E. ¶ 1, 3/11/2011 H.T. at 23, 57-58.)
On August 11, 2010, a Notice of Temporary
Compensation Payable was issued establishing Claimant's average weekly wage at
the time of injury and a corresponding total temporary disability rate.
(3/11/2011 H.T. at 6, Claimant Exhibit 2 - Bureau Documents.) On October 14, 2010, Employer issued a Notice Stopping Temporary Compensation and a Notice of Denial. ( Id. ) On October 27, 2010, Claimant filed a Claim Petition listing injuries to his left leg, knee, foot, ribs, back and lungs. (R. Item 1.) On November 19, 2010, Employer filed an Answer to the Claim Petition denying that Claimant was within the course and scope of employment when he was injured. (R. Item 3.) Claimant and Employer agreed to have the issue of whether Claimant was within the course and scope of his employment when his injuries occurred bifurcated for an initial determination and, following the March 11, 2011 hearing where Claimant testified, the WCJ issued an interlocutory decision and order on April 4, 2012, concluding that Claimant was within the course and scope of employment. (R. Item 4.) On September 27, 2012 the WCJ issued a decision and order granting Claimant's Claim Petition and on October 2, 2012, the WCJ issued an amended decision ...