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Lutheran Senior Services Management Co. v. Workers' Compensation Appeal Board (Miller)

Commonwealth Court of Pennsylvania

February 15, 2017

Lutheran Senior Services Management Company, Petitioner
Workers' Compensation Appeal Board (Miller), Respondent

          Submitted: November 4, 2016



          PATRICIA A. McCULLOUGH, Judge

         Lutheran Senior Services Management Company (Employer) petitions for review of the June 8, 2016, order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) granting the claim petition of Jerry Miller (Claimant).

         Facts and Procedural History

         Claimant filed a claim petition on April 22, 2014, alleging ongoing disability from a "broken eye socket, broken pelvis, ruptured bladder, [and] multiple scars and disfigurements" arising out of a "work-related motor vehicle accident" on March 13, 2014. (Reproduced Record, (R.R.) at 3.) Employer filed a timely answer on May 6, 2014, denying all material allegations and demanding strict proof of those allegations. (R.R. at 7-9.) At the first hearing before the WCJ on May 19, 2014, Employer orally amended its defenses to include the defense that Claimant was not in the course of his employment when he was injured. (R.R. at 13-14.)

         Claimant testified before the WCJ that he had worked for Employer for twelve years as Director of Maintenance, overseeing three other employees. He stated that he was a salaried employee exempt from the overtime requirements of the Fair Labor Standards Act, [1] whose regular work hours were Monday through Friday, starting at 7:00 a.m. and ending at 3:30 p.m. (R.R. at 20-22, 47.)

         According to both Claimant and Diana Seip (Employer's Executive Director), Employer maintained a four-building campus over eighteen acres as a facility for senior citizens. (R.R. at 20-21 and 79-81.) According to Ms. Seip, as part of the protection for its residents, Employer had a system of security cameras spread out over the campus. Proper functioning and accuracy of these security cameras was an important priority for Employer. (R.R. at 93-94.)

         At the July 14, 2014, hearing, Claimant testified that as Director of Maintenance, "It means I oversee the maintenance staff, help implement all the building's systems, repair the building's systems, [and] respond to after-hours emergencies." (R.R. at 20.) He testified that he was called in to work while off-site two to three times monthly. (R.R. at 22-23.) Whenever he was called in to work while off-site, Claimant testified that in lieu of additional pay, he received "comp time, " which accumulated from the time he picked up the phone until when he arrived back home. This "comp time" was to be taken as soon as possible after being called in, and for the same time as the non-exempt, wage employees he supervised, that is, door to door, from home to work and back. (R.R. at 23-27.)

         Claimant testified about Employer's "on call" policy and admitted into evidence Employer's written "on call" policy. That policy stated in pertinent part:

Employees on-call for after hours maintenance problems are not compensated for carrying the pager since these employees are able to pursue personal activities and interests while carrying the pager. However, once a call is received and a determination is made that it is necessary to go to Luther House [the four-building site], this time will be considered work time from the point that the employee begins responding to the call until the work is done and the employee arrives home or at whatever activity or location where the pager call was received. All of this time should be recorded on the timesheet for that workweek.

(R.R. at 68.) The written policy also permitted the employee to record a minimum of three work hours if the employee must return to Luther House to respond to an emergency maintenance call, and receive mileage reimbursement. (R.R. at 69.)

         Claimant stated that he awoke the morning of March 13, 2004, "feeling very poor, very weak, " from being up all night due to a reaction to a prescription medication. (R.R. at 30.) He stayed home past his usual 7:00 a.m. start time and called his ex-wife, Jacqueline Miller, about his physical symptoms inasmuch as she was a trained EMT. (R.R. at 30-32.) While on his cell phone with Ms. Miller, Claimant testified that Ms. Seip "beeped in, " and he accepted the call. According to Claimant, she asked him if he was available to handle the security cameras being down, and he said he told Ms. Seip he was home and not available because he was sick, and for such emergencies, "the other guys were supposed to respond if they can handle it." (R.R. at 32, 48.)

         Claimant characterized the camera malfunction as "an emergency, but not life or death, " and when he told Ms. Seip he intended to take a sick day, she advised him that the others had already called off. Claimant noted that he was not infectious, and felt obligated " to go in and fix these cameras." "I didn't want to make her [Ms. Seip] mad." (R.R. at 32-33, 48, 53-54.)

         Claimant denied that he told Ms. Seip that he had planned on coming in to work; rather, he insisted that he told her he intended to take a sick day. Additionally, when he agreed to come in, he said he told her he was not staying ...

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