Ace Wire Spring and Form Company v. WCAB (Walshesky).
93 A.3rd 923, (Pa. Cmwlth, 2014), 2104 WL 2576059, filed June 10, 2014
In this case, the employer had appealed, contending that Mr. Walshesky was not in the course and scope of his employment when the injury occurred. The claim petition alleged a “head injury which caused a left sided stroke from his shoulder to his foot.” The WCJ found that claimant had arrived at the work site sometime between 6:30 and 7:30 a.m. on Dec. 4, 2007, that he normally did arrive at the work site early to avoid heavy traffic, that he parked in a parking lot which the employer provided for employees, that claimant left his vehicle, intending to pick up his clean uniforms and return them to his vehicle prior to his start time of 8 a.m., and he sustained a head injury when he fell on ice on his way to pick up the uniforms. The WCJ concluded that the injury occurred in the course and scope of claimant’s employment, and granted the claim petition. With respect to the claimant’s medical condition, footnote 6 of the court’s opinion reads as follows: “Claimant described that while he regained some movement in his left leg after approximately six months of therapy, he has never regained use of his left hand and arm, and he has been informed that his condition will not improve. R.R. at 23a-25a. Claimant has a 2-inch scar from the accident, and uses a wheelchair because he is only able to walk ‘[a] little bit with a cane.’ R.R. at 35a; see also R.R. at 24a-25a, 28a.”
Employer appealed the WCJ’s decision, and the WCAB affirmed the WCJ’s granting of the claim petition. With respect to its appeal to the Commonwealth Court, the court wrote: “Employer argued that the Board erred in affirming the WCJ’s finding that claimant was in the course and scope of his employment or furthering employer’s interests or affairs ‘when he arrived at Employer’s facility an unreasonable time prior to his scheduled work shift.’ Employer Br. at 17. We disagree.”
The court began its substantive discussion by quoting the summary of Section 301 ( c ) (1) of the act as set forth in U. S. Airways v.Workers’ Comp. Appeal Bd. (Dixon), 764 A.2d 635 (Pa. Cmwlth. 2000).The court then summarized the principle applicable to this case as follows: “Thus, if an employee is ‘actually engaged in furtherance of the employer’s business or affairs’ when he is injured on an employer’s premises, the injury was sustained in the course of his employment. U.S. Airways, 764 A.2d at 640.” The court then wrote: “The operative phrase ‘actually engaged in the furtherance of the business or affairs of the employer,’ … must be given a liberal construction…. [D]etermining whether an employee is acting in the course of employment at the time of an injury is a question of law, which must be based on the findings of fact made by the WCJ.” Lewis v. Workers’ Comp. Appeal Bd. (Andy Frain Servs., Inc.), 29 A.3d 851,862 (Pa. Cmwlth. 2011) (citation omitted; emphasis added).”
The next six pages of the court’s opinion contain a discussion of the testimony of the various witnesses and the WCJ’s critical findings of fact and credibility determinations. The court concluded that the following critical findings/credibility determinations of the WCJ were supported by substantial evidence: (1) claimant arrived at work sometime between 6:30 and 7:30 a.m.; (2) claimant left his vehicle, intending to retrieve his clean work uniforms and return them to his car so that he would not forget them when his shift ended for the day; (3) as claimant returned to the employer’s building after placing the clean uniforms in his vehicle, he fell on the ice and was injured.
The court discussed and compared the facts of this case with several other reported opinions. With respect to claimant’s time of arrival, the court concluded its discussion of this issue as follows: “Because the Court must uphold findings of fact supported by substantial evidence, examine testimony in the light most favorable to the prevailing party below and liberally construe a remedial statute like the Act, this Court concludes that the evidence did not establish that Claimant arrived at Employer’s premises on December 4, 2007 an unreasonable amount of time before his shift began.”
With respect to the claimant’s actions in general, the court then wrote: “There was no credible evidence ‘to show that [Claimant] had abandoned his employment, or that he was engaged in something entirely foreign thereto, or that he acted contrary to any positive orders of his employer, or that he was a trespasser’ within the time leading up to his shift. Wolsko, 44 A.2d at 877. Claimant collected his uniforms which were provided and cleaned as an Employer-provided benefit, and he put them in his car. We hold that the Board did not err by affirming the WCJ’s determination that Claimant’s December 4, 2007 injury occurred while he was in furtherance of Employer’s interests and, therefore he was in the course and scope of his employment.”
Source: Pennsylvania Department of Labor and Industry, News & Notes, Summer 2014, Vol. 19 / No. 2.
