Opinion
No. 2275 C.D. 2013
07-16-2014
James Brooks (Decedent) and Linda Brooks (Claimant), Petitioners v. Workers' Compensation Appeal Board (West Goshen Township), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Linda Brooks (Claimant) petitions for review of the December 17, 2013 order of the Workers' Compensation Appeal Board (Board) affirming the decision of a workers' compensation judge (WCJ) to deny Claimant's fatal claim petition. We affirm.
James Brooks (Decedent), Claimant's husband, was employed by West Goshen Township (Employer) as a laborer at the West Goshen Water Treatment Plant (Plant). On March 8, 2010, Claimant filed a fatal claim petition alleging that, on February 10, 2010, Decedent sustained a work-related injury when he fell into a water tank and drowned. On March 12, 2010, Employer filed an answer asserting that Decedent's death was intentionally self-inflicted and therefore not compensable. The matter was assigned to a WCJ for adjudication.
Section 301(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §431, states in part that "no compensation shall be paid when the injury or death is intentionally self-inflicted."
Before the WCJ, Claimant testified that during a heavy snow storm on February 10, 2010, Decedent was called into work to plow roads in the township. Claimant stated that this task was not among Decedent's normal duties. She described Decedent as nervous about plowing snow but otherwise in a good mood when he left for work. Claimant testified that she became concerned when Decedent did not call her at lunch time. Claimant said she tried calling Decedent and his coworkers and finally was informed by police that Decedent's body had been found at the Plant in an aeration tank. Claimant further testified that Decedent had never been treated for any psychological ailments. (WCJ's Findings of Fact Nos. 2b-d.)
Claimant also offered the testimony of Ian Hood, M.D., a pathologist and medical examiner for Burlington County, New Jersey. Dr. Hood was hired by the Chester County Coroner to perform Decedent's autopsy, and he determined that the cause of Decedent's death was drowning. After viewing photos of the area around the aeration tank, Dr. Hood agreed that Decedent would have had to climb over or go through a railing to have gotten into the tank. However, Dr. Hood concluded that there was no indication that Decedent had committed suicide. He classified Decedent's death as an "unexplained drowning." (WCJ's Findings of Fact Nos. 3c-e.)
Jeff Reph (Reph) testified that he rode with Decedent that morning and gave him instruction on snow plowing. Reph testified that Decedent appeared to be fine while they were working together. He stated that after plowing the roads for several hours, he and Decedent returned to the Plant to eat lunch in the employee break room. According to Reph, Decedent said he was going to the restroom in the nearby Operations Building, but he never returned. Reph testified that he checked for Decedent at the Operations Building and other buildings at the Plant. He noted that the truck they were using to plow the roads was still parked outside the break room. (WCJ's Findings of Fact Nos. 6b-f.)
Plant manager John Scott (Scott) testified that after the premises were thoroughly searched with the aid of police officers and firefighters, Decedent was found in an aeration tank. Scott stated that the aeration tanks were the last place they thought to look for Decedent because he had no reason to be there. Scott explained that, as a laborer, Decedent had no regular job duties to perform at the aeration tanks and Decedent's specific job assignment on February 10, 2010, was to plow the roads in the township. (WCJ's Findings of Fact Nos. 4b-f.)
Scott estimated that the distance between the break room and the aeration tank is approximately 120 yards, all uphill. Scott stated that on the day of Decedent's death, the path was entirely covered in snow due to the storm. Scott also noted that it would be difficult to fall into an aeration tank because the guard rail around it has no open point of access. He described the guard rail as a double rail barrier made of galvanized pipe with the first rail 23 inches above the platform and the second 43 inches above the platform. (WCJ's Findings of Fact Nos. 4h-j.)
Dave Woodward (Woodward), Street Superintendent of Employer's Roads Department, testified that Decedent was one of five Plant employees who were borrowed by the Roads Department to assist in plowing snow on February 10, 2010. Woodward confirmed that the work assigned to Decedent that day did not require him to be near the aeration tanks. (WCJ's Findings of Fact Nos. 7a-c.)
Employer presented the testimony of Richard T. Callery, M.D., Chief Medical Examiner for the State of Delaware, and Gladys Fenichel, M.D., a board certified psychiatrist. Both of these witnesses opined that Decedent's death was a suicide. (WCJ's Findings of Fact Nos. 8a-c, 9a-c.)
On October 8, 2010, the WCJ visited the Plant and observed the various locations described by the witnesses, including the break room, the restroom in the Operations Building, the path to the aeration tank, and the tank itself. The WCJ also examined the guard rail surrounding the aeration tank. (WCJ's Findings of Fact No. 10.)
In his July 15, 2011 decision, the WCJ found the testimony of Claimant, Reph, Scott, and Woodward to be credible and accepted their statements as fact. (WCJ's Findings of Fact Nos. 10-12.) In addition, the WCJ accepted the testimony of Dr. Hood as more credible than the conflicting testimony of Dr. Callery and Dr. Fenichel and specifically found that the manner of Decedent's death from drowning is unexplained. (WCJ's Findings of Fact Nos. 15-16.) The WCJ concluded that there was nothing leading up to Decedent's death to suggest that he intended to commit suicide.
The WCJ further found that after Decedent told his coworker that he was going to the restroom, he instead walked a significant distance uphill, through a snow storm, to the aeration tank. The WCJ inferred from the evidence that Decedent then must have either climbed or sat upon the guard rail on the platform surrounding the tank. The WCJ found that Decedent's job duties did not require him to be near the tank that day and described Decedent's actions as "deliberate, extreme and of an inherently high-risk nature." (WCJ's opinion at 11.) Citing Penn State University v. Workers' Compensation Appeal Board (Smith), 15 A.3d 949 (Pa. Cmwlth. 2011), the WCJ concluded that Decedent's presence at the tank was not in furtherance of Employer's interests and that Decedent was not acting within the course and scope of his employment at the time of his death. (WCJ's Findings of Fact Nos. 14-16.) Accordingly, the WCJ denied Claimant's fatal claim petition.
The claimant in Penn State worked as a cook and housekeeper and was on his lunch break when he intentionally jumped down a flight of twelve steps and suffered injuries to both legs. In response to his claim petition, the employer asserted that the claimant was outside the course and scope of his employment when he was injured. The WCJ granted the claim petition, reasoning that the claimant's action in jumping down the steps on the employer's premises was not an activity that was outside the realm of the claimant's work activities or an intentional violation of a rule against horseplay. The Board affirmed, concluding that the claimant's jumping down the stairs on the way to lunch was not an activity so foreign to his regular duties as to remove him from the scope of his employment.
The employer appealed to this Court, which reversed, holding that the "premeditated, deliberate, extreme, and inherently highrisk nature of [the claimant's] actions are sufficient to remove [the claimant] from the course and scope of his employment," and distinguishing the facts from cases such as Baby's Room v. Workers' Compensation Appeal Board (Stairs), 860 A.2d 200 (Pa. Cmwlth. 2011), where a claimant "engaged in an inconsequential departure from his work activities" and an award of benefits was upheld. Penn State, 15 A.3d at 95455.
Claimant appealed to the Board, arguing that the record did not support the WCJ's findings that Decedent's injury was the result of deliberate, high-risk conduct. The Board disagreed, explaining that, although there was no direct evidence of Decedent's actions, the WCJ did not err in making reasonable inferences from the evidence.
The Board concluded that this case was similar to Lewis v. Workers' Compensation Appeal Board (Andy Frain Services, Inc.), 29 A.3d 851 (Pa. Cmwlth. 2011), in which the court focused on whether the employee's actions were in furtherance of the employer's business affairs rather than on the riskiness of the employee's actions. The Board also rejected Claimant's argument that the WCJ failed to analyze the case under the "special mission" doctrine as applied in Wells Fargo v. Workers' Compensation Appeal Board (Pacheco), 764 A.2d 1147 (Pa. Cmwlth. 2000), Scher v. Workers' Compensation Appeal Board (City of Philadelphia), 740 A.2d 741 (Pa. Cmwlth. 1999), and City of Philadelphia v. Workers' Compensation Appeal Board (Stewart), 728 A.2d 431 (Pa. Cmwlth. 1999). Accordingly, the Board affirmed the WCJ's decision, and Claimant now appeals to this Court.
In Wells Fargo, an employee sustained injuries while travelling from his regular office to another office in order to facilitate the transfer of accounts between the two offices. 764 A.2d at 1151. In Scher, a court reporter suffered injuries while delivering work to a typist whom he had hired to prepare a transcript. 740 A.2d at 749. In City of Philadelphia, an "on call" employee was injured while he was driving to work to remedy an electrical problem. 728 A.2d at 433. In each of these cases we held that the employee was acting in furtherance of his employer's interests and was within the course and scope of his employment.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether findings of fact are supported by substantial evidence. Meadow Lakes Apartments v. Workers' Compensation Appeal Board (Spencer), 894 A.2d 214 (Pa. Cmwlth. 2006). Substantial evidence means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Bethenergy Mines, Inc. v. Workers' Compensation Appeal Board (Skirpan), 612 A.2d 434, 436 (Pa. 1992).
On appeal, Claimant argues that the WCJ erred in concluding that, at the time of his injury, Decedent was acting outside the course and scope of his employment. With respect to a fatal claim petition, the claimant bears the burden of proving all elements necessary to support an award, including the burden of proving that the decedent's injury arose in the course of his employment and was related thereto. Reading Anthracite Co. v. Workers' Compensation Appeal Board (Felegi), 789 A.2d 404, 408 (Pa. Cmwlth. 2001); Fox v. Workers' Compensation Appeal Board (Eazor Express, Inc.), 373 A.2d 141,142 (Pa. Cmwlth. 1977).
Claimant first contends that the WCJ erred in failing to find that Decedent's injury is compensable under the "special mission" doctrine. The "special mission" doctrine is an exception to the general rule that injuries sustained while commuting to or from work are not compensable under the Act. Claimant asserts that under the "special mission" doctrine, an employee is within the scope of his employment from the moment he leaves home until the moment he returns, regardless of the extent of his employment duties. Claimant maintains that Decedent's injury occurred while he was on a special assignment for Employer and is compensable under this Court's holdings in Wells Fargo, Scher, and City of Philadelphia. In each of those cases, the court found that an employee who was traveling to work was nevertheless in the course and scope of his employment because at the time of his injury, the employee was furthering the interest of his employer.
Generally, under the so-called "coming and going rule," an injury suffered by an employee while traveling to and from work is not compensable because, in those circumstances, the employee is neither on the employer's premises nor engaged in the furtherance of the employer's affairs. Fonder v. Workers' Compensation Appeal Board (Fox Integrated), 842 A.2d 512, 514 (Pa. Cmwlth. 2004). However, such an injury may be compensable if one of four exceptions to the rule is established: (1) the employment contract included transportation to and from work; (2) the claimant has no fixed place of work; (3) the claimant is on a special assignment; or (4) special circumstances are such that the claimant was furthering the business of the employer. Wells Fargo, 764 A.2d at 1150.
In contrast, Claimant failed to establish that Decedent was en route to or from a work assignment or that he was otherwise furthering Employer's interests at the time of his injury. Thus, the Board properly concluded that the "special mission" doctrine is not implicated.
Claimant next contends that the WCJ's finding that Decedent walked up the hill to the aeration tank and either climbed or sat upon the guard rail surrounding the tank is not supported by substantial evidence. However, it is a fundamental principle of workers' compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight. Pennsylvania Uninsured Employers Guaranty Fund v. Workers' Compensation Appeal Board (Bonner and Fitzgerald), 85 A.3d 1109, 1115 (Pa. Cmwlth. 2014). The WCJ may accept or reject the testimony of any witness, in whole or in part. Vols v. Workmen's Compensation Appeal Board (Alperin, Inc.), 687 A.2d 711, 714 (Pa. Cmwlth. 1994). In addition, we have repeatedly recognized that the WCJ's fact-finding authority includes the authority to draw reasonable inferences from the evidence. Bonner and Fitzgerald, 85 A.3d at 1115; General Electric Company v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth. 1991). The WCJ's credibility determinations and findings are binding on appeal unless made arbitrarily and capriciously. Casne v. Workers' Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008). The evidence and the reasonable inferences deducible therefrom must be viewed in the light most favorable to the prevailing party below. Glass v. Workers' Compensation Appeal Board (City of Philadelphia), 61 A.3d 318, 325 n.4 (Pa. Cmwlth. 2013). Applying these standards to our review of the record, we discern no legal error in the WCJ's findings.
We reject Claimant's contention that the WCJ's findings are inconsistent. Contrary to Claimant's assertions, the WCJ's finding that the manner of Decedent's drowning is unexplained does not conflict with the finding that the actions leading up to Decedent's drowning were deliberate and of an inherently high-risk nature. Stated otherwise, a determination that a claimant's injury was not intentionally self-inflicted does not preclude a determination that the claimant acted voluntarily in removing himself from the course and scope of his employment. --------
Claimant next argues that the Board erred by relying on Lewis to hold that Decedent had left the course and scope of his employment at the time of his injury. An employee's injury is compensable under the Act only if the injury arises in the course and scope of employment and is causally related thereto. U.S. Airways v. Workers' Compensation Appeal Board (Dixon), 764 A.2d 635, 640 (Pa. Cmwlth. 2000). An employee who engages in conduct that is not in the furtherance of his employer's interests is acting outside the course and scope of his employment and is not entitled to benefits under the Act. Lewis, 29 A.3d at 862. Whether an employee is acting in the course of employment at the time of his injury is a question of law, which must be based on the WCJ's findings of fact. Id.
The claimant in Lewis was employed to work at a country club during a golf tournament. At the time of his injury, the claimant was assigned to watch an open tent with a Lexus vehicle on display from 7:00 p.m. to 7:00 a.m. His job was to stay in the tent with the Lexus until he was relieved by another employee, and he was instructed to use a radio if he needed a break or encountered a problem. The claimant left the tent before the end of his shift to investigate lights and noises in the distance, and he was injured when he fell from bleachers at least five hundred feet from the tent.
Based on the facts that the claimant's job was to remain at the tent and the location of his injury was not near that area, the WCJ and Board concluded that the claimant failed to prove that he was in the course of his employment at the time of his injury. On appeal, we affirmed that conclusion, also noting the WCJ's specific finding that the claimant's activities were not furthering the interests of his employer. 29 A.3d at 862.
As in Lewis, the WCJ found that at the time of his death, Decedent was in an area and engaged in actions that were wholly unrelated to his job duties. Although the record does not establish with certainty why or how Decedent went to the aeration tank, the WCJ's finding that he did so voluntarily is a reasonable inference supported by the evidence. More important, the record contains no evidence indicating that Decedent was acting within the course and scope of his employment when he died, and such evidence is required to support the grant of a claim petition. Reading Anthracite Co.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 16th day of July, 2014, the December 17, 2013 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge