Opinion
No. 588 C.D. 2014
12-11-2014
William Barrett, Petitioner v. Workers' Compensation Appeal Board (Service MGMT Systems, Inc.), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
William Barrett (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ), which denied Claimant's claim petition.
Claimant asserts on appeal that (i) the Board erred in affirming the WCJ's determination that Claimant was not in the course and scope of his employment at the time of his accident, as the WCJ's findings are not supported by substantial evidence and the WCJ therefore has not rendered a reasoned decision; and (ii) the Board erred in affirming the WCJ's dismissal of his claim petition because Claimant sustained a compensable injury under the Workers' Compensation Act (Act). Claimant asserts that regardless of whether he was furthering Employer's business, his injuries are compensable because he was injured as a result of icy conditions on the premises under the control of his employer at a point in time when he was properly on the premises. We affirm.
In a claim proceeding, the claimant bears the burden of establishing a right to compensation and of proving all necessary elements to support an award. Inglis House v. Workers' Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). A claimant must establish that he sustained the injury in the course of his employment and that the injury was causally related to his employment. Miller v. Workers' Compensation Appeal Board (Millard Refrigerated Services and Sentry Claims Service), 47 A.3d 206, 208 (Pa. Cmwlth. 2012), appeal denied, 65 A.3d 415 (Pa. 2013).
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Where Claimant is not actually engaged in the furtherance of Employer's business or affairs, he must satisfy the following elements in order to receive benefits for an alleged work-related injury: (1) the injury must have occurred on Employer's premises; (2) Claimant's presence thereon was required by the nature of his employment; and (3) the injury was caused by the condition of the premises or by the operation of Employer's business thereon. Section 301(c)(1) of the Act, 77 P.S. § 411(1); Ortt v. Workers' Compensation Appeal Board (PPL Services Corp.), 874 A.2d 1264, 1267 (Pa. Cmwlth. 2005).
Claimant was employed by Service Management Systems, Inc. (Employer) as a custodian at the Exton Square Mall (Mall), with responsibility to pick up loose trash in both the open and covered parking lots of the Mall, and also to change trash containers located outside the Mall. In the performance of his job, Claimant customarily drove a John Deere utility vehicle referred to as a 'Gator,' which is similar to a golf cart, with a small pickup bed on the back and a trash can for loose trash. On January 11, 2011, Claimant allegedly sustained a left leg fracture after the Gator he was driving rolled over. (Board Opinion (Board Op.), Reproduced Record (R.R.) at 144a.) He filed a claim petition in March, 2011.
At the first of two days of hearings held before the WCJ, Bernie Maher (Maher), a bus driver who was not employed by Employer but who customarily parked his bus in a Mall parking lot during his break each day, testified. Maher stated that on the date of the accident, while parked, he observed Claimant driving the Gator in the lot, in front of his bus; he testified that "[w]hen he came across in front of me, he was jerking and steering left to right, right to left, trying to get a fishtail and sliding." (July 6, 2011 Hearing Transcript (H.T.), R.R. at 17a.) Maher stated that Claimant was driving on slushy snow, looking straight at him, and that Claimant had a big smile on his face. (Id.) Maher testified that he was playing a game on his cell phone, so he did not see, but rather heard something hit the ground, and when he looked up, he observed a trash can rolling around and saw the Gator tipped over onto its driver's side. (H.T., R.R. at 18a.) Maher further stated that during the time he had observed Claimant, he did not see Claimant picking up any trash in the area. (Id.)
Claimant presented a different account of the accident, testifying that the Gator had mechanical problems and would occasionally sputter, making it necessary for him to press down on the gas to keep it running. (H.T., R.R. at 32a.) Claimant testified that he was returning from a trip to a gas station located next to a Mall parking lot, where he had gone to buy lunch to take back to the employees' break room, when he saw a piece of trash and directed the Gator toward it. (H.T., R.R. at 34a.) Claimant stated that at that point the Gator sputtered, and he hit the gas, causing the Gator to start sliding on ice; he stated that he attempted to steer it away from a dry spot he was approaching, but the Gator hit the dry spot and flipped. (Id.) Claimant was shown a photo allegedly taken on the date of his accident, and although he acknowledged that there was snow in the photo, and many tire tracks, he stated that the photo could not have been taken on that day because on that day there was ice all over the place; he also stated that he did not make all of the tire tracks. (H.T., R.R. at 34a-35a.) He indicated that he had previously reported the sputtering problem with the Gator to Anthony Daniels, Employer's Housekeeping Manager (Housekeeping Manager). Claimant was asked whether a security guard had spoken to him earlier in the day on the date of the accident about the manner in which he was driving the Gator, and Claimant responded that no one had spoken to him about the way he was driving. (H.T., R.R. at 53a.) Claimant denied that he was playing with the Gator in the snow. (Id.)
At a subsequent hearing before the WCJ, held on October 17, 2011, Employer presented three witnesses: the Housekeeping Manager; Alexander Kupinski, Operations Manager at the Mall (Ops Manager); and Marvin Walton, who was employed by Allied Barton Security Service as a Mall security guard (Security Guard). The Security Guard testified that approximately one hour prior to the time of Claimant's accident, he observed Claimant in another Mall parking lot, driving the Gator. (October 17, 2011 Hearing Transcript (10/17 H.T.), R.R. at 80a.) He stated that he heard Claimant 'rev' the Gator engine and then observed him as he hit the brakes and slid approximately twenty to twenty-five feet, to a stop. (10/17 H.T., R.R. at 81a.) He stated that Claimant then exited from the Gator and that "with a flurry," Claimant "gave [him] the finger." (10/17 H.T., R.R. at 82a.) The Security Guard testified that he then drove toward Claimant and rolled down his window in case something was wrong, and Claimant asked him "[w]hat the f—k are you looking at?" (Id.) He indicated that he did not respond to Claimant, but instead went to speak with the Ops Manager and told him what he had observed "with the race and the sudden stop and the finger and the mouth...". (10/17 H.T., R.R. at 83a.) The Security Guard testified that he had in fact taken the photograph of the scene shown to Claimant at the hearing, on the date of the accident shortly after it occurred. (10/17 H.T., R.R. at 86a.) He stated that he responded to a radio call from Claimant reporting that the Gator had flipped and fallen over on him, and after arriving on the scene where he observed two individuals lifting the Gator off Claimant, put a coat under Claimant's head to make him more comfortable until the EMS arrived; the Security Guard testified that after observing the bus parked in the parking lot, he asked Maher, the bus driver, if he had seen anything, and took Maher's statement. (10/17 H.T., R.R. at 84a-85a.)
The Housekeeping Manager, who was Claimant's supervisor, was not present at the Mall on the day of the accident; however, he testified that Claimant had never complained to him about mechanical issues with the Gator. (10/17 H.T., R.R. at 95a.) He explained that the parking lot where the accident occurred was little used, and served as an overflow area during the holidays; he noted that the individual parking spaces were not plowed and that the only plowing that occurred was done to permit drivers clear access on a path from the gas station to the Mall. (10/17 H.T., R.R. at 97a.) The Housekeeping Manager noted that in the years he had worked with Claimant, he had never known Claimant to go to the gas station to buy lunch, and stated that Claimant was subsequently terminated from his employment, upon his return to work, because of "horse playing on the [G]ator." (10/17 H.T., R.R. at 98a, 107a.)
Claimant received a note from his treating physician, releasing him for full-duty work, on April 11, 2011. (H.T., R.R. at 46a.)
The Ops Manager testified that as of the date of the accident, there had been no indications from anyone that there had been any mechanical problems with the Gator and after the accident, he followed behind the vehicle as it was being driven back to the garage and found no problems with it. He stated that he sent the Gator out for inspection to be sure that it was safe to drive, but nothing at all required fixing on it. (10/17 H.T., R.R. at 110a, 115a.) He agreed that the Security Guard came to him prior to the accident and reported Claimant's conduct, on and off the Gator, earlier in the day. He was shown the photograph of the scene that Claimant had been shown, and stated that he had been present when the Security Guard took the photo, and that it accurately depicted conditions on the date of the accident. (10/17 H.T., R.R. at 114a.)
The WCJ's opinion consists of six findings of fact and one conclusion of law. (April 25, 2012 WCJ's Opinion (WCJ Op.). In finding of fact 2, the WCJ refers to a summary of evidence submitted by Employer's counsel, and states that the summary is attached to his opinion as 'Exhibit A.' (WCJ Op. Findings of Fact (F.F.) ¶ 2.) The summary of evidence is a lengthy, detailed recitation of the evidence presented by Claimant and by each of Employer's witnesses, with copious citations to the notes of testimony. In his opinion, the WCJ states:
On review, and the undersigned having had the opportunity to make a demeanor assessment of the witnesses, the evidence presented on behalf of [Employer] is found credible and persuasive, and is accepted over conflicting evidence, as it demonstrates that [Claimant] had substantially deviated from his employment duties when injured; the defense evidence undermines an essential element of the claim, namely, that it occur in the course and scope of claimant's employment.(WCJ Op., F.F. ¶ 3.) In his opinion, the WCJ summarizes the testimony of Employer's witnesses about Claimant's conduct as he operated the Gator, and concludes that said conduct was inconsistent with the employment relationship, and that "given the testimony of [Employer's] witnesses, Claimant was not in the course and scope of his employment at the time of the accident, and the Claim Petition is appropriately denied." (WCJ Op., F.F. ¶ 4.) The WCJ likewise summarizes Claimant's testimony and the testimony of Employer's witnesses with regard to alleged mechanical problems with the Gator, and the alleged reporting of such problems to Employer, and concludes that the respective consistent credible testimony of Employer's witnesses that no reports were received and no mechanical problems were discovered supports the denial of the claim. (WCJ Op., F.F. ¶ 5.)
The Board affirmed the WCJ. The Board concluded that having observed the demeanor of all witnesses, the WCJ properly, and within his prerogative to assess credibility and evidentiary weight, found the testimony of Employer's witnesses credible and rejected the testimony of Claimant. The Board stated:
After careful review, we determine the WCJ did not err in denying Claimant's Claim Petition. It was Claimant's burden to establish either that he was acting in furtherance of [Employer's] business or, that both the injury occurred on [Employer's] premises and was the result of a condition of the premises (citation omitted.) The credited evidence of record established that Claimant's injury occurred while he was attempting to fish-tail the Gator he was driving.
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Moreover, Claimant's injury was not caused by a condition of the premises. Claimant was intentionally driving the Gator through ice and snow, jerking and steering in an attempt to induce a fish-tail. [The Housekeeping Manager's] credited testimony established that the overflow lot throughway to the gas station was plowed, but the spaces were not. Claimant was driving in the ice and snow, not the plowed throughway. [The
Security Guard] previously observed Claimant performing a similar behavior earlier in the day. Claimant's incident was not a result of the condition of the premises but rather resulted from Claimant's attempts to fish-tail the Gator...Claimant's injury was caused by his horseplay, not the condition of the premises.(Bd. Op. at 6-7, R.R. at 149a-150a.)
Before this Court, Claimant argues that Employer presented no definitive evidence to reasonably conclude that Claimant broke from the course of his employment at any time on the day of his accident. Claimant argues that there were no eyewitnesses to the actual event, and there is substantial competent evidence, i.e., his own testimony that he was attempting to pick up trash and the fact that trash was observed on the ground next to the overturned Gator, to prove that he was in the course of his employment at the moment the accident occurred.
This Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, board procedures violated, and whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704; City of Pittsburgh v. Workers' Compensation Appeal Board (McFarren), 950 A.2d 358 (Pa. Cmwlth. 2008). --------
Section 422(a) of the Act aids meaningful appellate review by requiring the WCJ to issue a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole and clearly stating the rationale for the decision. 77 P.S. § 834. When the WCJ is faced with conflicting evidence, Section 422(a) of the Act further requires that his or her reasons for rejecting or discrediting competent evidence be explained. Id. This does not mean that the requirement of a reasoned decision permits a party to challenge or second-guess the WCJ's reasons for credibility determinations; determining the credibility of the witnesses remains the quintessential function of the fact finder. Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006), appeal denied, 916 A.2d 635 (Pa. 2007). The WCJ is free to accept, in whole or in part, the testimony of any witness, even if that testimony is uncontradicted. Department of Corrections, SCI-Retreat v. Workers' Compensation Appeal Board (Richardson), 788 A.2d 1041, 1045 (Pa. Cmwlth. 2001), appeal denied, 798 A.2d 1292 (Pa. 2002). However, the WCJ's findings of fact and conclusions of law must be supported by "substantial evidence" or "such relevant evidence as a reasonable mind might accept to support a conclusion." Ryan v. Workm[e]n's Compensation Appeal Board (Community Health Services), 707 A.2d 1130, 1134 (Pa. 1998). The appellate role in a workers' compensation case is not to reweigh the evidence or review the credibility of witnesses, but to determine whether the WCJ's findings have the requisite measure of support in the record as a whole. Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 612 A.2d 434, 436-37 (Pa. 1992).
Here, in concluding that Claimant was not in the course and scope of his employment at the time of the accident, the WCJ was permitted to draw reasonable inferences from evidence presented; on appeal, we must review those conclusions in the light most favorable to the party who prevailed below. Solomon v. Workers' Compensation Appeal Board (City of Philadelphia), 821 A.2d 215, 220 (Pa. Cmwlth. 2003). The WCJ observed the demeanor of all of the witnesses, found Employer's witnesses to be credible and persuasive, and accepted such evidence over the conflicting evidence presented by Claimant. The WCJ specifically referred to Claimant's testimony wherein he denied the conduct testified to by Employer's witnesses and asserted that the accident occurred because the Gator 'cut out,' a mechanical problem Claimant alleged he had reported prior to the accident. The WCJ found, however, that Employer's witnesses credibly denied having received complaints from Claimant about mechanical issues and credibly testified that a post-accident inspection of the Gator revealed no problem with the vehicle. We conclude that the WCJ's opinion was well reasoned.
Before this Court, Claimant fails to develop his alternate argument that even if not actually engaged in the furtherance of Employer's business, his injury is still compensable because he was injured due to icy conditions on Employer's premises, which were under Employer's control and at a point in time when he was properly on the premises. 77 P.S. § 411(1). In his brief, Claimant states that through the testimony of Employer's witnesses alone, Claimant has demonstrated that the accident occurred on premises controlled by Employer and that he was required to be on said premises, using the Gator to pick up trash. He maintains his argument that he was engaged in the furtherance of Employer's business, but states only that "[r]egardless, he was injured as a result of the uneven icy conditions on the parking lot." (Claimant's Brief at 8.) We find no merit in either of Claimant's arguments.
Here, the WCJ rejected Claimant's testimony that his accident occurred because the Gator had mechanical problems and he was required to 'rev' the engine to prevent the Gator from 'cutting out,' thereby causing him to slide, hit a dry spot and flip. The WCJ accepted Employer's witness's testimony that before the Gator rolled over, Claimant was not observed doing any work in the area and was observed trying to make the Gator 'fishtail' in the slushy snow. Given these findings, Claimant could not have been injured as a result of the condition of Employer's premises. As noted by the Board, the credited evidence of record established that Claimant's injury occurred while he was intentionally driving the Gator through ice and snow, jerking and steering in an attempt to induce a 'fishtail.'
After a careful review of the record, we conclude that the WCJ's fact findings are supported by substantial evidence and he resolved the conflicting evidence in accordance with Section 422(a) of the Act. 77 P.S. § 834; Dorsey, 893 A.2d at 195. We will not disturb his credibility determinations on appeal.
For the foregoing reasons, we affirm.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 11th day of December, 2014, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge