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Wilgro Services, Inc. v. Workers' Compensation Appeal Board (Mentusky)

Commonwealth Court of Pennsylvania

June 28, 2017

Wilgro Services, Inc., Petitioner
v.
Workers' Compensation Appeal Board (Mentusky), Respondents

          Submitted: March 31, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          PATRICIA A. MCCULLOUGH, JUDGE

         Wilgro Services (Employer) petitions for review of the November 17, 2016, order of the Workers' Compensation Appeal Board (Board) affirming a decision and order of the Workers' Compensation Judge (WCJ) granting the claim petition of Robert Mentusky (Claimant).

         Facts and Procedural History

         On June 27, 2014, while working at a job site assigned by Employer, Claimant jumped off a two-story roof and injured his feet and back. Claimant reported the injuries to Employer that day, and Employer issued a notice of compensation denial on July 7, 2014, contending: (1) that Claimant's injuries were not work-related; and (2) that Claimant "JUMPED FROM ROOF-DELIBERATE AND INTENTIONAL ACT." (Reproduced Record (R.R.) at 141) (emphasis in original.)

         Subsequently, Claimant filed a claim petition, alleging an injury consisting of "bilateral heel fractures and back injuries, " which rendered him totally disabled. (Claim petition, ¶¶3-6a; R.R. at 7.) Employer filed a timely answer denying all material allegations and alleging further, inter alia, "[a]t the time of the alleged incident, Claimant was beyond the scope of any employment relationship and, hence, is not entitled to any workers' compensation benefits." (R.R. at 7-10, 15-17.)

         Claimant testified at a hearing before the WCJ on September 4, 2014. He explained that he was working for Employer as an HVAC mechanic at a building owned by KVK-Tech in Newtown, Pennsylvania, on June 27, 2014, cleaning condenser coils on the air conditioning units, which were located on the roof of the building. He stated that the building varied in height but was mostly one story with some parts as high as two stories. The units on which he worked were between three and eight feet off the ground. That day, he testified that he arrived at 7:00 a.m. and ascended the roof on a ladder placed by roofers who were also working at the building. Claimant testified that he accessed the roof by means of this ladder since the job had begun. He stated that he was never told by the roofers not to use the ladder, and because the ladder had always been left there overnight, he used it as well to leave the roof area when his shift was over. (WCJ's Finding of Fact No. 4.)

         On June 27, 2014, he testified that he arrived at 7:00 that morning for work and ascended the ladder, and he used the ladder at lunch break to go down and then back up to the roof. He stated that he finished his job between 2:00 and 2:15 p.m. and gathered his tools and supplies, but when he looked around he saw no one else on the roof and the roofers' ladder was gone. He noted that at no time that day did the roofers ever tell Claimant they were leaving or that they were removing the ladder. He indicated that the building had a roof hatch which he tried, but found it was locked. He testified that he had a cell phone but did not try the phone for the building owner, KVK-Tech, because whenever he tried that number in the past, he could never get through to actually talk with someone. He stated that he did not try the phone for the owner's maintenance man because Claimant had seen him at lunch and he had told Claimant he was leaving at 1:00, and did not call Employer because its personnel were too far away. He noted that he called "Terry, " an employee at KVK-Tech, but got his answering machine, and had the same result with "Andrew, " another KVK-Tech employee, and did not leave any message for either man. (WCJ's Finding of Fact No. 4.)

         Claimant testified that he never considered calling 911 or any emergency number, nor did he call out for help, bang on the hatch, or walk the perimeter of the roof to look for anyone else. Claimant stated that he proceeded toward the employees' entrance, where the roof was lower and waited about thirty minutes to see someone entering or exiting the building, but that he saw no one. He estimated the roof at that point to be between sixteen and twenty feet off the ground, and because he had successfully made similar jumps in the past and the ground was covered with mulch, he thought he could jump without injury. After jumping into the mulched spot, Claimant felt immediate pain in both feet. Employees of KVK-Tech came to him and eventually, he was taken by ambulance to St. Mary's Hospital. (WCJ's Finding of Fact No. 4.)

         Claimant denied that he had deliberately and intentionally jumped off the roof to injure himself, or that he had planned to injure himself on the job. Claimant admitted that he could have used his own ladder to access the roof but that there was limited space to place a ladder because of landscaping work occurring at the same time surrounding the building. He agreed that if he had waited longer, the odds were that someone would enter or leave the building, but he felt he could safely make the jump without hurting himself. In retrospect, he testified, the decision was not smart, but he said he never thought he would get hurt. (WCJ's Finding of Fact No. 4.)

         In a deposition taken on November 21, 2014, Claimant submitted the medical testimony of David Hardeski, M.D. Board-certified in orthopedic surgery, Dr. Hardeski testified that his practice is dedicated to treatment of traumatic orthopedic injuries. He testified that he first saw Claimant the day after the incident, and obtained a history from him, which included the fact that Claimant had jumped off the roof. He stated that he reviewed x-rays and diagnosed Claimant with bilateral calcaneus fractures, left medial malleolus fracture, and lumbar spinal fractures at L-4 and L-5. Dr. Hardeski attempted conservative treatment but then performed surgery on July 16, 2014, fixing screws and plates into the bones of both heels. (WCJ's Finding of Fact No. 5.)

         On follow-up with Claimant on October 24, 2014, Dr. Hardeski testified Claimant continues to improve with some loss of reduction on the left calcaneus heel. He stated that he prescribed physical therapy for both legs. At the October 24 office visit, Dr. Hardeski testified that Claimant's pain was worse in the left heel than the right, and worse with ambulation. He testified that Claimant uses a cane to walk. Dr. Hardeski concluded that the cause of Claimant's problems was the jump from the roof, and that Claimant was presently disabled and could take up to two years of rehabilitation, with lifelong issues because the prognosis for calcaneal fractures is poor with regard to painless and normal function. (WCJ's Finding of Fact No. 5.)

         Claimant's medical evidence was not contested or rebutted by Employer. However, in a deposition taken on December 5, 2014, Employer submitted the testimony of Nikki Houy, the Human Resources manager for KVK-Tech. She testified that on June 27, 2014, she had been called to the outside of the KVK-Tech building by security, and she saw Claimant on the ground. She stated that Claimant told her he had jumped from the roof. She testified that she asked Claimant why he did not call someone from KVK-Tech and Claimant responded that the number never works. She testified that she then used Claimant's cell phone to call the KVK-Tech number and the phone started to ring, indicating the number was working. She admitted that when Claimant told her to call "Nondu" or "Andy" with her company, the calls went to voice mail for each. She testified that she looked at Claimant's cell phone and saw a call to Andy but not to Nondu. Ms. Houy testified that she put ice packs on Claimant's feet and called 911. She testified that she knew nothing specific about the jobs on the roof or the persons working on the roof. (WCJ's Finding of Fact No. 6.)

         Employer presented no evidence to contradict Claimant's testimony regarding his attempts to call people after he noticed the roofers' ladder was gone, but Employer did proffer photographs of the building and the work area, which ...


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