Opinion
Argued: February 3, 1982
May 3, 1982.
Workmen's compensation — Course of employment — Premises — The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736 — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Heart attack — Condition of premises.
1. An employe may sustain an injury compensable under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as being in the course of employment although not furthering the employer's business at the time, when such injury is sustained on the premises of the employer where the employe is required to be and sustained by reasons of the condition of the premises. [394-5]
2. In a workmen's compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. [395]
3. Workmen's compensation benefits are payable when an employe suffers a fatal heart attack after his working hours in the parking lot of his employer when such injury was caused by snow shoveling required to be done by the employe to extricate his automobile as a result of the condition of the parking lot which was covered by a large accumulation of snow, and the fact that such condition was not caused by the employer is irrelevant. [396]
Argued: February 3, 1982, before President Judge CRUMLISH and Judges BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 531 C.D. 1981, from the Order of the Workmen's Compensation Appeal Board in case of Michael V. D'Agostino, deceased, Nellie, Widow v. Port Authority of Allegheny County, No. A-79215.
Petition to the Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Case remanded. Benefits awarded without attorney fees. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Jeffrey M. Johnston, Ruffin, Hazlett, Snyder, Brown Stabile, for petitioner.
Edwin H. Beachler, with him William R. Caroselli, McArdle, Caroselli, Spagnolli Beachler, for respondent, Nellie D'Agostino.
Port Authority of Allegheny County (PAT) appeals a Workmen's Compensation Appeal Board order awarding death benefits to the wife of Michael D'Agostino. We affirm.
A previous Board order (Docket No. A-76579) vacated and remanded the referee's decision for further findings of fact on the issue of whether or not the snow shoveling activity caused decedent's death. This appeal is based on those findings.
The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 561.
D'Agostino, a bus driver for PAT, sustained a fatal heart attack while shoveling foot-deep snow around his vehicle in PAT's employee lot.
To be compensable under Section 301(c)(1) of The Pennsylvania Workmen's Compensation Act, an injury must arise in the course of employment and be related thereto. Workmen's Compensation Appeal Board v. U.S. Steel Corp., 31 Pa. Commw. 329, 376 A.2d 271 (1977). An employee, although not furthering his employer's business, is within the course of his employment if he is on the premises occupied by or under the control of the employer, is required by the nature of his employment to be present on the employer's premises and has sustained injuries caused by the condition of the premises. U.S. Steel Corp.
77 P. S. § 411(1).
PAT asserts that the referee erred in determining that:
(1) the nature of decedent's employment required him to be on PAT's premises one and one-half hours after the completion of his work day;
(2) the unusual climatic conditions at the time of decedent's death were a 'condition of the employer's premises;' and
(3) the decedent's heart attack was related to his employment.
Our scope of review where the party with the burden of proof has prevailed below is limited to determining whether constitutional rights were violated, an error of law was committed, or the necessary findings of fact were supported by substantial evidence. Butler v. Workmen's Compensation Appeal Board, 64 Pa. Commw. 315, 439 A.2d 1329 (1982).
The referee found, and the record fully supports, that the decedent was on PAT's premises an hour and a half after his work shift ended due to the significant amount of snow which had to be shoveled from around his car. His presence on the employer's premises for this additional period of time was neither unreasonable nor unusual under the conditions. See Fetzer v. Michrina, 8 Pa. Commw. 273, 301 A.2d 924 (1973).
Decedent's final bus trip for the day ended at 4:55 p.m. Afterwards, he secured a shovel, went to the parking lot and began to shovel the snow from around his car. Between 6:00 p.m. and 6:10 p.m., he walked to the bus garage and complained to a fellow employee about the condition of the parking lot. He was not seen alive after that. His body was discovered alongside his car at 6:25 p.m. An area 18 feet long and 2 feet wide had been shoveled along the left side of his car.
Since the weather conditions were so severe, PAT argues that this is not a "condition of the employer's premises" within the meaning of the Act. This contention is frivolous, but we will put it to rest. Under Section 301(c)(1), the cause or reason for the condition of the employer's premises is irrelevant. U.S. Steel Corp. Obviously, PAT was not responsible for the large snow accumulation in its parking lot. Nevertheless, the snow was a condition of the parking lot which necessitated D'Agostino to shovel his car free.
PAT further asserts that this shoveling activity was not related to decedent's employment in that it was performed off duty and had no connection with his work activities. This assertion is meritless. "If the condition of the premises or the employer's operation thereon caused the injuries, they are compensable. Obviously, if they were so caused, [the] injuries and death were also related to [ the] employment." U.S. Steel Corp. (emphasis added). Since there is sufficient medical testimony in the record to support the referee's finding that decedent's heart attack was the direct result of the snow shoveling activity, this death is compensable.
Affirmed.
ORDER
The Workmen's Compensation Appeal Board order, No. A-79215, dated February 13, 1981, is affirmed, and judgment is entered in favor of Nellie D'Agostino at the rate of $192.09, commencing January 20, 1978, and continuing within the limitations of the Workmen's Compensation Act. The petitioner, self-insured, is directed to reimburse the claimant for burial expense incurred in the amount of $1,500. Interest is payable on all deferred payments of compensation and on the funeral expense of $1,500 at the rate of ten percent (10%) per annum. Reasonable attorney fees in the amount of $3,995.48 and unassessable costs of prosecution in the amount of $254.30 are to be deducted from said deferred compensation and forwarded directly to McArdle, Caroselli, Spagnolli Beachler, 1100 Law Finance Building, Pittsburgh, PA 15219.
All payments of interest, remaining compensation and the aforementioned funeral expense of $1,500 shall be paid directly to the claimant.
The petitioner, self-insured, is further directed to reimburse claimant's counsel for reasonable costs incurred in the amount of $756.12.
Judge MENCER did not participate in the decision in this case.