Opinion
No. 1130 C.D. 2013 No. 1131 C.D. 2013
12-17-2013
Rickey Selfridge, Petitioner v. Workers' Compensation Appeal Board (Lawrence Rossi/First Class Contractors and Uninsured Employers Guaranty Fund), Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
In these consolidated appeals, Rickey Selfridge (Claimant) petitions for review of the Orders of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) Decisions denying Claimant's Claim Petitions for Workers' Compensation Benefits (Claim Petitions) that he filed against Lawrence Rossi/First Class Contractors (Employer) and the Uninsured Employers Guaranty Fund (Fund). The WCJ concluded, in relevant part, that Claimant had been terminated from his employment with Employer prior to sustaining the alleged work injury and, therefore, was not in the course and scope of his employment when he was injured. On appeal, Claimant argues that he was in the course and scope of his employment and/or was furthering Employer's business interests when he fractured his right hip on July 21, 2009. Discerning no error, we affirm.
The WCJ also denied the Joinder Petition filed by the Fund. The WCJ issued two separate, but identical, Decisions on the same date to address the Claim Petitions and Joinder Petition.
Claimant filed Claim Petitions against Employer on November 9, 2009 and against the Fund on December 30, 2009, averring that he sustained a work-related injury on July 21, 2009. Claimant filed the Claim Petition against the Fund because Employer did not carry workers' compensation (WC) insurance. Both Employer and the Fund filed answers denying the material allegations contained within the Claim Petitions. Additionally, the Fund filed a Joinder Petition against Martin O'Donnell/O'Donnell Landscaping (O'Donnell) asserting that O'Donnell was Claimant's employer or statutory employer. The Claim Petitions and Joinder Petition were consolidated and assigned to the WCJ, who held hearings at which Claimant, Employer, and the Fund presented evidence.
Evidence was also presented about who Claimant worked for on July 21, 2009. To avoid liability for the alleged work injury, the Fund sought to establish that Claimant was employed by O'Donnell, not Employer. The WCJ found that Claimant was employed by Employer, not O'Donnell. (WCJ Decision, Findings of Fact (FOF) ¶ 13.) Thus, the WCJ denied the Joinder Petition. (WCJ Decision, Conclusions of Law (COL) ¶ 3.) That determination is not challenged in this appeal.
Claimant provided the following relevant testimony. Beginning around March 2009, Claimant worked for Employer as a construction laborer, and Employer taught him how to construct retaining walls. On July 21, 2009, Claimant was working for Employer building a retaining wall at O'Donnell's home. Employer reviewed Claimant's work from the prior day and criticized the manner in which Claimant had placed the stone caps on top of the wall. Claimant took offense at Employer's criticism, informed Employer that he was leaving the job, and began walking away. Once Claimant started to leave, Employer demanded that Claimant return the keys to the vehicle Employer was providing Claimant and told Claimant that he was done. Claimant walked away from the job site, but returned and demanded that Employer pay him what he was owed. The argument turned physical, Employer struck Claimant in the chest with his closed fists, and knocked Claimant to the ground. As a result, Claimant fractured his right hip and underwent two surgeries, including a complete hip replacement. (WCJ Decision, Findings of Fact (FOF) ¶¶ 5, 6(a).)
Because the sole issue in this matter is whether Claimant was in the course and scope of his employment when he was injured, we refer only to the facts relevant to that issue and do not discuss the testimony and evidence related to whether Claimant was employed by O'Donnell or Employer.
Claimant also presented the deposition testimony of Alvin C. Ong, M.D., the board-certified orthopedic surgeon who treated him for the right hip fracture and performed the surgeries on Claimant's right hip. Dr. Ong opined that the incident on July 21, 2009 was the direct cause of Claimant's right hip fracture and surgeries. Dr. Ong indicated that, while he would place permanent restrictions on Claimant's lifting abilities, Claimant presently was capable of performing sedentary work, but Claimant would be able to progress beyond that work level. (WCJ Decision, FOF ¶ 6.)
Employer provided the following pertinent testimony. O'Donnell approached Employer about some excavating and grading work, which Employer agreed to perform. Employer asked Claimant to build a retaining wall as part of the O'Donnell project. On July 21, 2009, Employer questioned Claimant about how Claimant was building the retaining wall. Claimant disagreed with Employer's criticism, became argumentative, refused to perform the work Employer asked of him, and advised Employer that he was going home. Employer told Claimant to "go home and stay home" and indicated that Claimant "pretty much told me he quit." (WCJ Decision, FOF ¶ 7(h); Hr'g Tr., July 20, 2011, at 24, R.R. at 606a; Employer's Dep. at 70, R.R. at 319a.) Employer stated, "fine then you're fired" and that he did not want Claimant back. (WCJ Decision, FOF ¶ 7(h); Employer's Dep. at 70, R.R. at 319a.) Employer told Claimant that he could not take the car Claimant had been using, and Claimant began walking down the street away from the O'Donnell job site. Employer returned to the work he was performing. Between five and twenty minutes later, Claimant returned to the job site, yelling at Employer, calling Employer profane names, and demanding that Employer pay him. Employer told O'Donnell to get money to pay Claimant. Thereafter, Employer and Claimant got into a physical altercation during which Claimant charged at Employer and Employer pushed Claimant causing Claimant to fall and hurt his hip. (WCJ Decision, FOF ¶ 7.)
O'Donnell testified about, inter alia, his recollection of the events of July 21, 2009. He stated that Claimant had not done the retaining wall correctly and that he had overheard the conversation between Employer and Claimant, which culminated in Claimant saying "I quit" and Employer telling Claimant he was "fired." (WCJ Decision, FOF ¶ 9(d); Hr'g Tr., June 10, 2011, at 40-41, R.R. at 678a-79a.) O'Donnell observed Claimant leave his property, heard Claimant return approximately five minutes later using profanity toward Employer, and demand money. Employer told O'Donnell to get Claimant some money, and the physical altercation between Claimant and Employer occurred after this. (WCJ Decision, FOF ¶ 9(d).)
The Fund presented documentary evidence, including Claimant's Witness Statement (Statement) to the Malvern Borough Police Department (Police) dated July 21, 2009. In the Statement, Claimant indicated:
The Fund also offered the deposition testimony of Stuart Gordon, M.D., a board-certified orthopedic surgeon who examined Claimant on November 11, 2011 and opined that Claimant was capable of performing any type of job with no restrictions. (WCJ Decision, FOF ¶ 10.)
Claimant called the Police, and Employer stated that he believed that he was charged with, inter alia, simple assault and pleaded guilty to reckless endangerment. (Employer's Dep. at 62, 72, R.R. at 311a, 321a.)
Me [and] Larry Rossi got in to agrument (sic) about work. I said I was going home. He fired me. So I told him to give me the money he owes me and I called him a b[*]tch. Then he ran across the yard and pushed me. When that happened I hurt my leg and had to go to [the] hospital. He hit me with a closed fist in the chest.(WCJ Decision, FOF ¶ 11(b); Statement, R.R. at 570a.)
The WCJ found that Claimant worked for Employer, not O'Donnell, and sustained the right hip fracture as a result of being pushed by Employer on July 21, 2009. However, the WCJ also found that Claimant was no longer an employee of Employer when Claimant broke his right hip. The WCJ credited Employer's testimony that Claimant had been fired prior to the injury, noting that this testimony was corroborated by O'Donnell's testimony, by Claimant's testimony that Employer told him he was done and had to return the car keys to Employer, and by Claimant's Statement to the Police. To the extent Claimant testified that he was somehow furthering Employer's interests at the time he was injured, the WCJ rejected such testimony as not credible. (WCJ Decision, FOF ¶¶ 12-15.) Based on these findings and credibility determinations, the WCJ concluded, in pertinent part, that Claimant did not "meet his burden to establish that he was an employee at the time he sustained a hip injury on July 21, 2009" because "Claimant's employment relationship had been terminated prior to his injury, and his physical altercation with [Employer] was not in furtherance of any interest of his former employer." (WCJ Decision, Conclusions of Law (COL) ¶ 2.) Accordingly, the WCJ denied the Claim Petitions. (WCJ Decision, Order.) Claimant appealed to the Board, which affirmed. Claimant now petitions this Court for review.
The Board issued two separate, but identical opinions on the same date addressing the Claim Petitions and Joinder Petition.
"This Court's scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether errors of law were made, or whether constitutional rights were violated." Peters Township School District v. Workers' Compensation Appeal Board (Anthony), 945 A.2d 805, 810 n.8 (Pa. Cmwlth. 2008).
On appeal, Claimant first asserts that the WCJ's Decision, crediting Employer's testimony that Claimant had been fired prior to being injured, was arbitrary and capricious citing, among other things, irregularities in Employer's handling of his business matters. Claimant points to factors, including Employer not filing federal or state income taxes for a period of time, not carrying WC insurance, and always paying Claimant in cash, as evidence of Employer's questionable veracity. Moreover, Claimant contends that O'Donnell's testimony is insufficient corroboration because he was not part of the conversation between Claimant and Employer.
As the fact finder, the WCJ "has exclusive province over questions of credibility and evidentiary weight" and "is free to accept or reject the testimony of any witness . . . in whole or in part." Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). This Court may overturn a "credibility determination only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of facts, or so otherwise flawed, as to render it irrational." Casne v. Workers' Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).
Claimant's challenge to the WCJ's credibility determinations is without merit. There is nothing arbitrary, capricious, or irrational about the WCJ's Decision crediting the testimony that Claimant was fired prior to being injured on July 21, 2009. Claimant's own testimony that Employer told him he was done and to return the car keys, as well as his Statement to the Police that the altercation with Employer occurred after he had been fired, corroborate the testimony of Employer and O'Donnell. (WCJ Decision, FOF ¶¶ 5(d), 9(d); Statement, R.R. at 570a.) Accordingly, we find no basis to reject the WCJ's credibility findings.
Claimant next argues that the WCJ and Board erred in concluding that he was not in the course and scope of his employment when he was injured on July 21, 2009. Claimant cites Vosburg v. Connolly, 591 A.2d 1128 (Pa. Super. 1991), to support his contention that because the argument that led to the physical altercation was related to Claimant's work activities, i.e., how he was constructing the retaining wall and his being paid, his injury arose in the course and scope of his employment. Additionally, Claimant maintains that "the altercation between [Claimant] and his Employer was in the furtherance of the interests of Employer" because work performance and a wage dispute clearly fall into Employer's business affairs and Claimant's attempts to explain his side of the dispute was in furtherance of Employer's business. (Claimant's Br. at 15.)
Section 301(c)(1) of the Workers' Compensation Act (Act) defines "injury," in relevant part, as follows:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
The terms 'injury' and 'personal injury,' as used in this Act, shall be construed to mean an injury to an employe . . . arising in the course of his employment and related thereto . . . . The term 'injury arising in the course of his employment,' as used in this article, shall not include any injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all . . . injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere.77 P.S. § 411(1) (emphasis added). In Vosburg, the question before the Superior Court was whether the employee, who was severely injured as the result of a physical altercation with his employer's owners, could file a tort action against his employer or had to look only to the Act for a remedy. The employee in Vosburg had clocked out and was in the employer's parking lot when one of the owners confronted him about telling a client something about an excavating job that employer did not want shared with the client. Vosburg, 591 A.2d at 1129. Another owner joined the argument, threw the employee to the ground, and punched the employee in the face several times. Id. The employee filed a tort action against the employer, and the employer sought summary judgment based on the exclusivity of the Act. Id. The trial court granted summary judgment, and the employee appealed. Id. The Superior Court concluded that, because the origin of the altercation between the employee and owners was based purely on a business related controversy, the employee's injuries were work-related even though he was not on the clock and, therefore, the Act provided his exclusive remedy. Id. at 1131-32.
Vosburg, however, is distinguishable from the matter before us because there was no question that the injured employee in Vosburg was, at the time of the injury, employed by the employer. The threshold requirement under Section 301(c)(1) of the Act is that the person injured must be an employee. 77 P.S. § 411(1) (defining a compensable injury as "an injury to an employe" (emphasis added)). In Hepp v. Workmen's Compensation Appeal Board (B.P. Oil Company), 447 A.2d 337, 339 (Pa. Cmwlth. 1982) (emphasis in original), we held that the claimant was not injured in the furtherance of his employer's business and was not acting in the course and scope of his employment because he was injured "following receipt of notice that he was no longer employed." Similarly, in Little v. Workers' Compensation Appeal Board (B&L Ford/Chevrolet), 23 A.3d 637, 644-45 (Pa. Cmwlth. 2011), this Court held that an injury that "relates to a final act that is only work-related insofar as the event alters the employment relationship (such as . . . termination . . .), . . . does not arise in the course of employment." Finally, additional support for the requirement that an individual must be an employee is found in the fact that independent contractors are not entitled to WC benefits under the Act because there is no "master/servant relationship" present. Universal Am-Can, Ltd. v. Workers' Compensation Appeal Board (Minteer), 563 Pa. 480, 485, 762 A.2d 328, 330 (2000).
The claimant in Little sustained a fatal heart attack two days after receiving a letter terminating his employment. Little, 23 A.3d at 643-44. In Little, this Court distinguished Krawchuk v. Philadelphia Electric Company, 497 Pa. 115, 439 A.2d 627 (1981) (a WC case in which the Supreme Court held that the claimant's fatal heart attack was a compensable injury), on the basis that the claimant in Krawcuk remained employed by the employer when he sustained the heart attack. Little, 23 A.3d at 644.
Here, the WCJ found that Claimant sustained his injury after he was terminated from his position and the record contains substantial evidence to support that finding. Employer and O'Donnell both credibly testified that Employer discharged Claimant prior to the injury. Claimant acknowledged that Employer told him he was done and told the Police on July 21, 2009 that he had been fired. Because Claimant was no longer an employee when he was injured, his injury was not in the course and scope of his employment. Hepp, 447 A.2d at 339. Furthermore, we disagree with Claimant that, notwithstanding his being fired from his job, he was somehow furthering Employer's interests by yelling at Employer, calling Employer profane names, and arguing with Employer about being paid. Such actions are not performed in an effort to further Employer's construction business. Moreover, the WCJ did not credit Claimant's testimony to the extent he attempted to establish that he was acting in Employer's interests. (WCJ Decision, FOF ¶ 15.) Accordingly, there was no error in the determination of the WCJ and Board that Claimant was not in the course and scope of his employment when he sustained the right hip fracture and, therefore, is not eligible for WC benefits under the Act.
"Substantial evidence is any relevant evidence that a reasonable mind might consider adequate to support a conclusion." Jonathan Sheppard Stables v. Workers' Compensation Appeal Board (Wyatt), 739 A.2d 1084, 1087 (Pa. Cmwlth. 1999). Where substantial evidence supports the WCJ's findings of fact, those "findings are conclusive on appeal, despite the existence of contrary evidence." Miller v. Workers' Compensation Appeal Board (Millard Refrigerated Services and Sentry Claims Service), 47 A.3d 206, 209 (Pa. Cmwlth. 2012).
Claimant cautions that public policy should require payment of WC benefits "in order to prevent unscrupulous employers from terminating employees and then causing them harm without any threat of workers' compensation liability." (Claimant's Br. at 15.) We note, however, that the Act is the exclusive remedy only for injuries occurring in the course and scope of an employee's employment. Section 303(a) of the Act, 77 P.S. § 481(a). If an individual is not an employee at the time of the injury, the Act would no longer apply and the individual could seek remedies elsewhere. --------
For the foregoing reasons, we affirm the Board's Orders.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, December 17, 2013, the Orders of the Workers' Compensation Appeal Board in the above-captioned matter are hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge