The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Scott Grill, :
Petitioner :
: No. 1490 C.D. 2015
v. :
: Submitted: January 29, 2016
Workers’ Compensation Appeal :
Board (U.S. Airways), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: September 21, 2016
Scott Grill (Claimant) petitions for review of the August 18, 2015 order
of the Workers’ Compensation Appeal Board (Board), which affirmed the decision of
a Workers’ Compensation Judge (WCJ) denying Claimant’s claim petition. We
reverse.
Background
On December 28, 2012, Claimant filed a claim petition against U.S.
Airways, Inc. (Employer), alleging that on December 16, 2012, he suffered fractures
in his fourth and fifth metacarpals while in the course and scope of his employment
as a Catering Agent for Employer. On January 10, 2013, Employer filed an answer
denying the material allegations. Thereafter, the parties submitted Claimant’s
deposition and medical reports to the WCJ. (Supplemental Reproduced Record
(S.R.R.) at 19b.)
In his deposition, Claimant testified that as a Catering Agent for
Employer, his duties included filling catering carts for departing aircraft. Claimant
said that he would refill one foot by one foot by twenty-inch metal boxes with
beverages and other similar items, which were then placed in a movable rack to be
used by flight attendants to serve customers during international flights. (Reproduced
Record (R.R.) at 4a-7a.)
Claimant testified that his co-worker and friend, Bill Geyer, a
Warehouse Agent, complained to him in early December 2012 that the locker used by
Employer in the warehouse was falling apart. Claimant subsequently volunteered
unused lockers which he had at his residence to replace Employer’s deteriorating
locker. Claimant testified that Employer’s locker was used to store Employer’s
brooms, chains, cleaning materials, and equipment for loading and unloading trucks.
The lockers Claimant had at home were obtained from a friend and Claimant
intended to use them for storage. (R.R. at 8a-9a.)
Claimant further testified that on December 16, 2012, he transported the
lockers with his personal truck from home to work. Claimant clocked in at work,
proceeded to get paperwork for his assignments, and went to the warehouse, which
was on the same level as his workplace in the loading dock warehouse, but in a
different location. When Geyer arrived at work, he told Claimant that he wanted the
lockers to use them to replace Employer’s locker. Claimant stated that he proceeded
to the dock area and backed his pickup truck to the loading dock, which was one foot
higher than the bed of his truck. (R.R. at 8a-12a.)
2
Claimant explained that Geyer and another co-worker, David Conner,
helped him unload the lockers. Geyer and Connor were standing on the dock while
Claimant was in the bed of his pickup truck, and they lifted the bottom of the lockers
and slid them onto the dock. Claimant stated that they jointly lifted the lockers and
walked them onto the dock. While they were carrying the lockers, Claimant’s co-
workers stopped moving and placed the lockers down, but Claimant did not.
Claimant said that, as a result, he fell forward and caught his hand on the side of the
lockers, jammed his hand into the locker, and immediately felt excruciating pain.
Claimant stated that the lockers were delivered to Employer’s warehouse and, at the
time of his deposition, the lockers were still being used at the warehouse to store
Employer’s supplies. (R.R. at 12a-14a.)
Claimant testified that after the accident occurred, he returned to his
normal duties as a Catering Agent. Claimant said that shortly thereafter, he reported
the incident to his supervisor, completed an incident report, and went to Crozer
Taylor Hospital, where X-rays were performed and his hand was splinted. Claimant
reported to Employer’s administrative nurse the next day, who directed him to obtain
treatment at the Philadelphia Hand Center. Claimant testified that David Zelouf,
M.D., performed surgery on the shaft fractures in his fourth and fifth metacarpals on
December 18, 2012. Following surgery, Claimant underwent physical therapy and
Dr. Zelouf released him to light-duty work on January 30, 2013, and then full-duty
work on February 25, 2013. (R.R. at 14a, 17a-20a.)
Claimant also presented doctor’s reports describing his injuries.
Employer did not present any evidence on its behalf, except for doctor reports
concerning Claimant’s injuries and a statement of wages.
3
On May 5, 2014, the WCJ issued a decision denying Claimant’s claim
petition. The WCJ found that Claimant suffered an injury to his fourth and fifth
metacarpals while carrying his lockers to Employer’s warehouse on December 16,
2012. (WCJ’s Findings of Fact Nos. 4-5.) The WCJ also found that Claimant “was
not required to report to the loading dock, since that was not his work area at any
time;” Geyer was not Claimant’s supervisor; and Claimant had not spoken to anyone
in a management position about the deteriorating locker in Employer’s warehouse.
(WCJ’s Findings of Fact Nos. 6-7.) The WCJ further found that Claimant did not
seek permission from any management personnel to bring his personal property to the
warehouse, nor did he have permission to use his personal vehicle to perform the
delivery. (WCJ’s Findings of Fact No. 8.)
Based upon these findings, the WCJ concluded, as a matter of law, that
“Claimant was not engaged in the course and scope of his employment when he was
injured.” (WCJ’s Conclusions of Law No. 1.) The WCJ determined that Claimant
“was not engaged in furthering [E]mployer’s business interests, but, instead, was a
mere volunteer acting without his [E]mployer’s knowledge.” (WCJ’s Conclusions of
Law No. 1.)
Claimant appealed and the Board affirmed. In its decision, the Board
stated:
Claimant was unable to prove he was furthering the
interests of [Employer] when he was injured. Claimant was
required by the nature of his employment to be on the
premises controlled by [Employer] when he was injured.
However, the WCJ determined that Claimant was not
furthering the business of [Employer] because his actions
were voluntary, and [Employer] did not direct Claimant to
provide new lockers nor was [Employer] aware that
Claimant was going to replace the lockers. Claimant was
not supervised by management. He may have believed he
4
was furthering [Employer’s] interests, but he never inquired
about replacing the lockers with management.
(Board’s decision at 5.)1 Accordingly, the Board agreed with the WCJ that Claimant
was not injured in the course of his employment. Id.
Discussion
On appeal to this Court,2 Claimant argues that the Board and the WCJ
erred in concluding that he was not in the course and scope of his employment at the
time of the injury. More specifically, Claimant contends that he was in the course
and scope of his employment because he had clocked in,3 was on the Employer’s
premises, and was acting in furtherance of Employer’s interest by replacing a
deteriorating locker. Claimant asserts that there is no requirement that an individual
1
The Board further concluded: “Claimant is also unable to prevail on the theory that the
condition of the premises caused his injury. Claimant’s own testimony shows that the loading dock
where he was injured was intended for tractor trailers. The height differential between the pickup
truck and the loading dock played a significant part in his injury.” (Board’s decision at 5.)
2
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow
Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa.
Cmwlth. 2006).
3
As the Board noted, the WCJ made conflicting findings of fact regarding whether Claimant
clocked in or not before transporting the locker. (See WCJ’s Findings of Fact Nos. 4, 8.) Upon
review of the record, the only evidence that exists as to whether Claimant clocked in prior to his
injury is his February 8, 2013 deposition testimony, wherein Claimant was questioned, “And when
you got to work, did you clock in?” (R.R at 10a.) Claimant responded, “Yes.” Id.
The Board noted that Employer did not question the veracity of Claimant’s testimony that he
clocked in, (Board’s decision at 4-5), and, because there is no evidence to establish otherwise, this
Court will accept the WCJ’s finding that Claimant was clocked in before transporting the locker.
5
receive a positive work order to perform a function that furthers the interest of his
employer. We agree.
Section 301(c)(1) of the Workers’ Compensation Act (Act), Act of June
2, 1915, P.L. 736, as amended, 77 P.S. §411(1), provides that an injury must occur in
the course and scope of employment and be causally related thereto in order for the
injury to be compensable. The courts have developed two tests that are used to
determine whether an injury was sustained in the course of employment. Under the
first test, the question is whether the employee was actually engaged in the
furtherance of the employer’s business or affairs, regardless of whether the employee
was upon the employer’s premises. Kmart Corporation v. Workers’ Compensation
Appeal Board (Fitzsimmons), 748 A.2d 660, 664 (Pa. 2000); Marazas v. Workers’
Compensation Appeal Board (Vitas Healthcare Corporation), 97 A.3d 854, 862 (Pa.
Cmwlth. 2014).
Under the second test, the employee need not be engaged in the
furtherance of the employer’s business or affairs, however, the employee: (1) must be
on the premises occupied or under the control of the employer, or upon which the
employer’s business or affairs are being carried on; (2) must be required by the nature
of his employment to be present on the premises; and (3) must sustain injuries caused
by the condition of the premises or by operation of the employer’s business or affairs
thereon. Kmart, 748 A.2d at 664; Marazas, 97 A.3d at 862.
Initially, we observe that whether an employee is acting in the course of
his or her employment at the time of an injury is a question of law, which must be
based on the WCJ’s findings of fact. Trigon Holdings, Inc. v. Workers’
Compensation Appeal Board (Griffith), 74 A.3d 359, 362 (Pa. Cmwlth. 2013).
Nonetheless, it is the claimant who bears the burden of proving all elements
6
necessary to support an award of workers’ compensation benefits. Lewis v. Workers’
Compensation Appeal Board (Andy Frain Services, Inc.), 29 A.3d 851, 861 (Pa.
Cmwlth. 2011).
Typically, “[a]n activity that does not further the affairs of the employer
will take the employee out of the course and scope of employment and serve as a
basis for denial of the claim by the WCJ.” Wetzel v. Workers’ Compensation Appeal
Board (Parkway Service Station), 92 A.3d 130, 136 (Pa. Cmwlth. 2014) (citation
omitted). However, “[t]he operative phrase ‘actually engaged in the furtherance of
the business or affairs of the employer,’ which is usually expressed as ‘in the course
of employment,’ must be given a liberal construction.” Id. (citation omitted).
Here, as the WCJ found and the Board emphasized, Claimant was not
performing his typical job duties on the premises at the time of the injury and did not
receive express permission from Employer to install the locker, but this alone does
not take him outside the scope of his employment. More precisely, the WCJ
determined that, in replacing Employer’s locker on Employer’s premises, Claimant
“was not engaged in furthering [E]mployer’s business interests, but, instead, was a
mere volunteer acting without his [E]mployer’s knowledge.” (WCJ’s Conclusions of
Law No. 1.) However, this Court has held that these factors – lack of employer
knowledge and performing unassigned tasks – do not place an employee outside
the course and scope of employment.
As recently emphasized by this Court:
An employe is entitled to compensation for every injury
received on the premises of his employer during the hours
of employment, regardless of whether he is actually
required to be at the particular place where the injury
occurred, so long as there is nothing to show that he had
abandoned the course of his employment or was
engaged in something wholly foreign thereto.
7
Trigon Holdings, Inc., 74 A.3d at 362 (citation omitted) (emphasis supplied). In
other words, “[a]n employee may be doing something other than the exact work
assigned to him, and he may not be strictly at his assigned work, either as to time or
place, yet the continuity of the employment is not broken unless such activity is
wholly foreign to his employment or constitutes an abandonment thereof.” City
of New Castle v. Workmen’s Compensation Appeal Board (Sallie), 546 A.2d 132, 134
(Pa. Cmwlth. 1988) (citation omitted) (emphasis added).
Consequently, the pertinent and dispositive inquiry in this case is
whether, at the time of the injury, Claimant abandoned his employment or was
engaged in an activity that is wholly foreign to his employment. While the general
rule is that all on-premises injuries are in the course of employment, an employer
may show abandonment or wholly foreign activity “when the employer can credibly
argue that the employee was on the premises but in essentially a non-employee or
trespasser status.” 8 West’s Pennsylvania Practice, Workers’ Compensation Law
and Practice, David B. Torrey and Andrew E. Greenberg (3rd Ed. 2008), §4:71
(emphasis added).
Such examples in our case law include situations where the employee
was injured on the premises while the employee: (1) removed a hoist owned by
employer and the employer permitted the employee to borrow the equipment for the
personal use of his car, Schirf v. Workmen’s Compensation Appeal Board (Blairsville
Machine Product Company), 658 A.2d 2, 3-4 (Pa. Cmwlth. 1995); (2) collected cans
from the premises with the intention of selling them for his personal benefit and was
struck by a car while crossing the street, Pesta v. Workmen’s Compensation Appeal
Board (Wise Foods), 621 A.2d 1221, 1223 (Pa. Cmwlth. 1993); and (3) actively
disengaged himself from his work responsibilities to polish a bolt with the employer’s
8
tools for a personal benefit, i.e., to use the bolt for his child’s go-cart, Trigon
Holdings, Inc., 74 A.3d at 364-65.
Other examples include where the employee was injured on the premises
while the employee: (1) intentionally jumped down a flight of stairs, in a
premediated and high-risk manner, on his way to lunch, Penn State University v.
Workers’ Compensation Appeal Board (Smith), 15 A.3d 949, 954-59 (Pa. Cmwlth.
2011); and (2) deliberately engaged in “foolish acts . . . in defiance of well-known
physical laws, wholly foreign to one’s duties,” e.g., unintentionally soaked his leg
with gasoline and set a match to the material after being dared to do so by other
employees, Carland v. Vance, 10 A.2d 114, 115-17 (Pa. Super. 1939).
Finally, examples also include, in general, situations where the employee
was injured on the premises while the employee returned to and/or stayed at the
employer’s premises after the work shift was completed, was not required to be on
the premises at the time the injury occurred, and was on the premises to perform
activities of a personal nature. See generally Heverly v. Workmen’s Compensation
Appeal Board (Ship N Shore), 578 A.2d 575 (Pa. Cmwlth. 1990); Pypers v.
Workmen’s Compensation Appeal Board (Baker), 524 A.2d 1046 (Pa. Cmwlth.
1987); Giebel v. Workmen’s Compensation Appeal Board, 399 A.2d 152 (Pa.
Cmwlth. 1979); Torrey, Workers’ Compensation Law and Practice, §4:71.
In this case, Claimant’s actions clearly do not fit into any of these
categories of activities that evidence conduct that is wholly foreign to his
employment. Most significantly, at the time of the injury, Claimant was not
performing a task for his personal benefit or for the personal benefit of Geyer, his co-
employee. To reinforce this proposition, we turn to a preeminent treatise, Larson’s
Workers’ Compensation Law, which is a secondary source that our Supreme Court
9
has repeatedly consulted in assessing workers’ compensation issues. See, e.g.,
Triangle Building Center v. Workers’ Compensation Appeal Board (Linch), 746 A.2d
1108, 1112 (Pa. 2000); Kusenko v. Republic Steel Corporation, 484 A.2d 374, 380
(Pa. 1984); Krawchuk v. Philadelphia Electric Company, 439 A.2d 627, 632 (Pa.
1981); Hinkle v. HJ Heinz Company, 337 A.2d 907, 911 n.5 (Pa. 1975); Unora v.
Glen Alden Coal Company, 104 A.2d 104, 107 (Pa. 1954).
When it comes to assisting co-employees, Larson’s treatise states as a
general rule: “An act outside an employee’s regular duties which is undertaken
in good faith to advance the employer’s interests, whether or not the employee’s
own assigned work is thereby furthered, is within the course of employment.”
Larson, Workers’ Compensation Law, §27.00 (emphasis added). The treatise
explains that public policy considerations promote this rule because “it would be
contrary not only to human nature but to the employer’s best interests to forbid
employees to help each other on pain of losing compensation benefits for any injuries
thereby sustained.” Id. at §27.01(2).
The treatise further explains that “the employee who honestly attempts
to serve the employer’s interests by some act outside the employee’s fixed duties
should not be held to the exercise of infallible judgment on what best serves
those interests.” Id. (emphasis added). On the other hand, “[i]f the aid takes the
form of merely helping the co-employee with some matter entirely personal to the co-
employee, it is outside the course of employment, unless the deviation involved is
insubstantial.” Id. at §27.01(5). Here, it is clear that Claimant was on Employer’s
premises, was acting in furtherance of his Employer’s interest, and had undertaken an
activity solely to benefit Employer.
10
Even in other jurisdictions this principle is well recognized. In Graves v.
Builders Steel Supply, 368 S.E.2d 188 (Ga. Ct. App. 1988), the claimant was
employed as a “grinder” by the employer. In that capacity, the claimant used a
grinding machine to smooth steel fence parts. After finishing his work, the claimant
noticed that a belt on a drill press was loose and that the person who typically
operated it was not on the premises at the time. Notably, the claimant did not receive
authorization from the employer to use the drill press. Ultimately, the claimant
injured his finger while trying to replace the belt on the drill press. On appeal, the
Court of Appeals for the State of Georgia concluded that the claimant was entitled to
benefits because the claimant was injured while performing an act that benefitted the
employer; the act was incidental to claimant’s regular work; and the claimant did not
abandon the course and scope of his employment.
In the case sub judice, based upon the uncontroverted evidence and the
WCJ’s findings of fact, Claimant established that he made a genuine attempt to
advance Employer’s interest. In donating his lockers to replace Employer’s
deteriorating locker, Claimant was not merely helping Geyer with an entirely
personal matter; rather, Claimant brought a replacement unit in order to store
Employer’s property. The fact that Claimant’s lockers were still being used by
Employer at the time of the WCJ’s hearing not only shows that Employer actually
received a benefit from Claimant’s efforts, but also that Employer accepted the
benefit. Significantly, the phrase, “actually engaged in the furtherance of the
business or affairs of the employer,” section 301(c) of the Act, 77 P.S. §411(1), as it
is used in the Act, “applies to every detail necessary for the advancement of the
business of the employer and in which the employee was engaged at the time of the
accident.” Reinhard v. Egypt Silk Mill, 26 Pa. D. 869, 870 (C.P. Lehigh Cnty. 1917).
11
It is therefore immaterial whether an employee is acting as a volunteer assisting
another employee and/or beyond the scope of his original employment duties when
undertaking a task that furthers the employer’s interest. Id. (awarding benefits to a
claimant, a silk worker, who had “voluntarily and without direction of any one took
charge of a picking machine operated by an older boy, who had temporarily left the
room,” and suffered injuries while working the machine).
Notably, there is no evidence to demonstrate that Claimant engaged in an
activity prohibited by Employer, violated a company policy, or otherwise imposed a
detriment upon Employer. See Graves, 368 S.E.2d at 190-91 (explaining that it is the
employer’s burden of proving that the claimant’s actions were outside the course of
employment). Therefore, on this record, we conclude that Claimant’s actions at the
time of the injury were within the course and scope of his employment and were not
so far removed from his job duties to constitute an abandonment of employment.
Having satisfied the first test for compensability, i.e., being engaged in the
furtherance of the employer’s business or affairs, Claimant is entitled to benefits.4
4
In his Dissent, Senior Judge Pellegrini expresses concern that the Majority’s reasoning
would remove any requirement that an injury occur on the employer’s premises, thereby “making
any injury that an employee suffers, no matter where, compensable.” Slip op. at 4. In other words,
the Dissent states that our Majority could be interpreted as holding that “once an employee decides
to undertake an action that in some way could benefit an employer, any injuries incurred are
compensable.” Slip op. at 5-6. The Dissent further posits that a claimant is not in the course and
scope of his employment merely because his actions result in some incidental benefit to an
employer.
However, the Dissent’s concerns are unfounded. In this case, Claimant sustained an injury
on Employer’s premises and during his normal work hours. Claimant’s actions were not undertaken
for his own personal benefit or the personal benefit of a co-employee. However, a question
remained as to whether Claimant “abandoned the course of his employment or was engaged in
something wholly foreign thereto.” Trigon Holdings, Inc., 74 A.3d at 362. The Majority concludes
he did not. Under the factual scenario here, it would not be reasonable to interpret the Majority as
holding that all injuries sustained by an employee whenever he believes he is furthering the
employer’s interests are compensable. Indeed, if an employee performs non-typical work tasks
(Footnote continued on next page…)
12
(continued…)
while off-duty, not on the premises, and for which he is not receiving pay, then the conduct would
most likely have to be prompted by a direct request by the employer in order to be within the scope
and course of employment. See also Workmen’s Compensation Appeal Board v. Hickory Farms of
Ohio, 367 A.2d 730, 731-32 (Pa. Cmwlth. 1976) (“[Employer] never requested claimant, either
expressly or impliedly, to work on the records at home. Rather, the work was taken home for the
convenience of the employe who wanted to spend as little time at the store the next day as she
could. This is not a sufficient basis for liability.”). In believing that all employee activities that
could arguably benefit the employer would be compensable under the Majority’s analysis,
regardless of where they are performed and the circumstances of the employment arrangement, see
slip op. at 5 n.3, the Dissent fails to realize that when an employee’s job is “fixed” or “stationary”
and to be performed solely on the premises, the course of employment is generally confined to
activities conducted on the premises, as opposed to an employee who travels elsewhere as part of
his job or is paid to work from home as part of his employment contract. See Jamison v. Workers’
Compensation Appeal Board (Gallagher Home Health Services), 955 A.2d 494, 498 (Pa. Cmwlth.
2008) (“What constitutes ‘scope and course of employment’ is broader for traveling employees than
for stationary employees, and it includes driving to any appointment for the employer.”); Verizon
Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Alston), 900 A.2d 440, 445-46 (Pa.
Cmwlth. 2006) (“Claimant . . . was working at her ‘home office,’ a fixed location approved by
Employer as her secondary work premises. . . . Claimant . . . was engaged in furthering the business
of her Employer because, at the time of her injury, she was speaking with her supervisor on the
telephone and descending the stairs in order to address a work matter that her supervisor called to
discuss with her.”), and compare with Hickory Farms of Ohio, 367 A.2d at 731-32.
The Dissent also places heavy reliance on Brookhaven Baptist Church v. Workers’
Compensation Appeal Board (Halvorson), 912 A.2d 770 (Pa. 2006), but this reliance is misplaced.
In Brookhaven Baptist Church, the claimant was injured when, after cutting shrubs with sheers, he
burnt the clippings and caught on fire. Significantly, the claimant wore two distinct “hats:” one as
a trustee/volunteer who was required by the nature of his employment to perform all grounds
maintenance, including the trimming of bushes and trees; and the other was that of an employee,
specifically limited by his employment agreement to cut grass. The critical issue was whether the
claimant was engaged in the regular business of the employer such that he fit within the definition
of an “employe” under the Act. Because the claimant was performing his duties as a
trustee/volunteer at the time of the accident, the Supreme Court concluded that the claimant was not
an “employee,” but, rather, a volunteer, and therefore was not in the course of any employment
relationship.
Brookhaven Baptist Church is distinguishable on two grounds. First and foremost, that case
does not deal with the situation where, as here, an employee assists another employee with a work-
related matter. If there was a co-employee in Brookhaven Baptist Church who was paid to work
with the shrubs, and the claimant decided to help the co-employee burn the trimmings, the outcome
(Footnote continued on next page…)
13
We note that our result is consistent with well-established legal precedent from this
Court, the Act’s humanitarian purpose, and the rules enunciated in Larson’s treatise
and other jurisdictions.5
(continued…)
may very well have been different. Second, Claimant in this case does not wear two “hats” and
have two delineated roles, with one being a volunteer and the other being an employee. Instead,
Claimant is a paid employee (not a volunteer in any sense) and it would contravene public policy
and common sense to prohibit an employee from helping co-employees further an employer’s
interest.
5
The Dissent cites two sections of Larson’s treatise, and case law referenced therein, that
are clearly inapplicable to the current facts of record. First, the Dissent relies on section 27.00(3),
which is entitled “trading jobs,” and Georgejakakis v. Wheeling Steel Corp., 86 N.E.2d 594 (Ohio
1949), to support the idea that benefits should be denied when an employee is acting outside the
bounds of his employment. Slip op. at 6. However, the Dissent fails to mention that the claimant in
Georgejakakis was injured while “engaged in an unauthorized venture,” id. at 596, and the unique
factual circumstances of that case. According to Larson, the claimant in Georgejakakis, a low-
ranking floor sweeper, undertook another employee’s job, i.e., operating a ring-pressing machine,
out of curiosity and “envy” of “the fortunate employees who did the glamorous work of operating
the big machines, [which] he quietly learned by continuous observation how the machines were
run.” Larson, Workers’ Compensation Law, §27.00(3). Larson characterizes the claimant’s
conduct in Georgejakakis thusly: “[T]he claimant’s predominate motive was not a good-faith
intention to further the employee’s work, but personal curiosity, so that the benefit to the employer
was merely an incidental by-product.” Id. (emphasis added).
Here, by contrast, Claimant was not performing another employee’s job to satisfy a personal
desire to operate a certain type of machinery or conduct a particular type of activity; e.g., Claimant
was not a dishwasher who, for the sake of fun or curiosity, decided to drive a bulldozer and was
injured while doing so. Accordingly, this section of Larson’s treatise is not informative in deciding
the issue currently before this Court.
Second, the Dissent cites section 27.00(5), entitled “primary purposes co-employee’s
personal benefit,” to conclude that Claimant should be denied compensation. Slip. op. at 7. The
Dissent believes that Claimant’s actions took “the form of merely helping [a] co-employee with
some matter entirely personal to the co-employee” or “the primary motive of the assistance [was]
not to help [Employer] but to accommodate the co-employee.” See slip op. at 6-7 (quoting
Larson, Workers’ Compensation Law, §27.00(3) (emphasis added)).
(Footnote continued on next page…)
14
Conclusion
The precedent which the Majority follows is clear and in keeping with
the legislative intent that the Act be liberally construed to effectuate its humanitarian
objectives. See Sporio v. Workmen’s Compensation Appeal Board (Songer
Construction), 717 A.2d 525, 528 (Pa. 1998) (“The Act is remedial in nature and its
purpose is to benefit the workers of this Commonwealth. The Act is to be liberally
construed to effectuate its humanitarian objectives. In addition, borderline
interpretations of the Act are to be construed in the injured party’s favor.”). The
Dissent’s interpretation of this humanitarian Act, however, would result in denying
compensation to any and all claimants who help co-workers further the business or
affairs of the employer. Indeed, it is difficult to imagine a work environment where
an employee would not assist another employee in carrying a heavy box containing
the employer’s supplies because it is not within the employee’s specific job duties
(continued…)
As described and juxtaposed above, we are unable to discern how Geyer, the co-employee,
had a personal investment in the locker or received a personal benefit from the locker. Geyer did
not utilize the locker for his personal use; rather, the locker was used to store Employer’s
equipment. This is not a case where, for example, an employee is injured while transporting a
pinball machine or a billboard table to a warehouse for employees to use during lunch or after work.
The Dissent also frames Claimant’s conduct as nothing more than “a personal favor” and
“accommodation” to Geyer. Slip. op. at 7. We find this to be a difficult proposition to accept when
Employer’s locker was deteriorating and Claimant’s locker replaced it; in these circumstances, if
Claimant’s actions are deemed to be a “favor,” it would be a favor whose benefit inures primarily, if
not solely, to Employer. Cf. Gibbs v. Almstrom, 176 N.W. 173, 173-74 (Minn. 1920) (denying
compensation where a salesperson asked the plaintiff, “as a personal favor,” to pick up his
employer-sponsored automobile because he would not be in the city when the automobile arrived;
the plaintiff was injured while transporting the automobile back to his own garage; and the court
determined that plaintiff’s conduct “was of no consequence or concern to the company” and “was
purely a favor” to the salesperson) (cited in Larson, Workers’ Compensation Law, §27.00(3)).
15
and the employee would have no legal recourse if injured. We award benefits in this
matter because any other conclusion under these circumstances would have the
natural and practical effect of thwarting an employer’s day-to-day operations, by
promoting friction and a potential stalemate amongst employees who do not wish to
risk un-compensable injury in the face of uncertainty as to what all their job duties
exactly entail – while, in the meantime, the employer’s business needs are left
unattended.
Accordingly, because the WCJ and the Board erred as a matter law in
determining that Claimant was not in the course and scope of his
employment, we reverse the Board’s order and remand to the Board to remand to the
WCJ for further proceedings consistent with this memorandum opinion.6
________________________________
PATRICIA A. McCULLOUGH, Judge
6
Due to our disposition, we need not reach Claimant’s alternative argument that he met the
second test for determining whether an injury was sustained in the course of employment.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Scott Grill, :
Petitioner :
: No. 1490 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (U.S. Airways), :
Respondent :
ORDER
AND NOW, this 21st day of September, 2016, the August 18, 2015
order of the Workers’ Compensation Appeal Board (Board) is reversed. The case
is remanded to the Board to remand to the Workers’ Compensation Judge for
further proceedings consistent with this memorandum opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Scott Grill, :
Petitioner :
:
v. : No. 1490 C.D. 2015
: Submitted: January 29, 2016
Workers’ Compensation Appeal :
Board (U.S. Airways), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY
SENIOR JUDGE PELLEGRINI FILED: September 21, 2016
I respectfully dissent from the majority’s reversal of the Workers’
Compensation Judge (WCJ) and the Board’s decision to deny benefits because I
agree with them that Claimant was not injured while “actually engaged in the
furtherance of the business or affairs”1 for which he was employed, but instead when
1
Section 301(c)(1) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736,
as amended, 77 P.S. §411(1), provides:
The terms “injury” and “personal injury,” as used in this act, shall be
construed to mean an injury to an employe, regardless of his previous
physical condition. . . . The term “injury arising in the course of his
employment,” as used in this article, shall not include an injury
caused by an act of a third person . . . but shall include all other
injuries sustained while the employe is actually engaged in the
(Footnote continued on next page…)
he made a voluntary decision to leave his assigned work area to engage in an
unauthorized task.
Claimant was employed by Employer as a catering agent to replenish
catering carts on international flights. Claimant’s coworker and friend, who worked
as a warehouse agent in the warehouse’s dock area, complained that the dock area’s
plastic locker was deteriorating. The dock area’s plastic locker was used for storing
brooms, chains, cleaning materials and other equipment used for loading and
unloading trucks. Claimant offered his friend an unused steel locker stored at his
residence. It is undisputed that Employer was unaware that Claimant was bringing
his personal locker to the facility for use by his friend.
On the day of the incident, Claimant loaded his locker onto his personal
pickup truck, drove to Employer’s facility and then clocked into work. After his
friend walked into the warehouse, Claimant backed his personal pickup truck next to
the loading dock, which, because it is only used for loading and unloading tractor-
trailers, was significantly higher than the bed of his pickup truck. While Claimant,
his friend and another co-worker unloaded the locker, Claimant jumped onto the
(continued…)
furtherance of the business or affairs of the employer, whether upon
the employer’s premises or elsewhere, and shall include all injuries
caused by the condition of the premises or by the operation of the
employer’s business or affairs thereon, sustained by the employe,
who, though not so engaged, is injured upon the premises occupied by
or under the control of the employer, or upon which the employer’s
business or affairs are being carried on, the employe’s presence
thereon being required by the nature of his employment.
DRP - 2
dock, but because his co-workers suddenly stopped moving, Claimant hit his right
hand against the locker causing him excruciating pain. Claimant stated that he
eventually underwent surgery for injuries to his fourth and fifth metacarpals. He was
released to light-duty work after approximately six weeks and to full-duty work
approximately ten weeks after the injury.
Concluding that Claimant was not engaged in the course and scope of
his employment because he was not furthering his Employer’s interest and because he
“was a mere volunteer acting without the Employer’s knowledge,” the WCJ denied
the claim petition. (Supplemental Reproduced Record (S.R.R.) at 12b.) Claimant
then appealed to the Board, which affirmed.
The majority reverses, finding that Claimant was injured during the
course of his employment because “Claimant established that he made a genuine
attempt to advance Employer’s interest,” Majority Opinion at 9 (emphasis added),
and cites to Employer’s purported ex post facto acquiescence of Claimant’s behavior
as support for its determination because it purportedly then used the locker.
The majority correctly points out that we recently stated in Trigon
Holdings, Inc. v. Workers’ Compensation Appeal Board (Griffith), 74 A.3d 359, 362
(Pa. Cmwlth. 2013) that:
An employe is entitled to compensation for every injury
received on the premises of his employer during the hours
of employment, regardless of whether he is actually
required to be at the particular place where the injury
occurred, so long as there is nothing to show that he had
abandoned the course of his employment or was
DRP - 3
engaged in something wholly foreign thereto. (Citations
omitted) (Emphasis added.)
Because the injury occurred at work and obtaining the locker advances the
Employer’s interest, the majority holds that the injury is compensable.
This is a difficult case because, on its face, Claimant’s deviation from
his employment to bring in his own locker in his personal pickup truck as a personal
favor could be viewed as an “attempt” to advance Employer’s interest and, because it
occurred on Employer’s premises, compensable. The question, though, is more
complicated because once we hold that when an employee volunteers to undertake an
action that could advance the employer’s interest, there is, however, no requirement
that the injury occur on the employer’s premises, making any injury that an employee
suffers, no matter where, compensable.2 In other words, once an employee decides to
2
However, there are other instances when:
An employee’s injury is compensable under Section 301(c)(1) of the
Workers’ Compensation Act . . . if the injury (1) arises in the course
of employment and (2) is causally related thereto. An injury may be
sustained “in the course of employment” under Section 301(c)(1) of
the Act in two distinct situations: (1) where the employee is injured
on or off the employer’s premises, while actually engaged in
furtherance of the employer’s business or affairs; or (2) where the
employee, although not actually engaged in the furtherance of the
employer’s business or affairs, (a) is on the premises occupied or
under the control of the employer, or upon which the employer’s
business or affairs are being carried on, (b) is required by the nature
of his employment to be present on the employer’s premises, and (c)
sustains injuries caused by the condition of the premises or by
operation of the employer’s business or affairs thereon.
(Footnote continued on next page…)
DRP - 4
undertake an action that in some way could benefit an employer, any injuries incurred
are compensable.
In this case, if we were to hold that he was advancing Employer’s
interest, Claimant would not only be entitled to compensation for injuries that he
sustained on the clock and on the dock, but would be entitled to compensation if the
locker fell on and broke his foot at home while attempting to load it onto his pickup
truck or was injured if involved with a motor vehicle accident on the way to deliver
the locker to work.
Just because Claimant’s volunteering to bring his personal locker to
work may involve some incidental benefit to Employer does not mean that his actions
were undertaken in the “course of his employment.” He brought the locker in as a
personal favor to his friend, not as part of any employment as a catering agent. Like
the WCJ and the Board, I would hold that someone who personally volunteers to
fulfill a personal request of a fellow employee is not advancing the interest of
employer, but has “abandoned the course of his employment or was engaged in
something wholly foreign thereto.”
Additionally, an action that is “attempting” to or incidentally benefits an
employer is not the standard for determining whether Claimant “is actually engaged
(continued…)
U.S. Airways v. Workers’ Compensation Appeal Board (Dixon), 764 A.2d 635, 640 (Pa. Cmwlth.
2000) (Citations omitted; emphasis added).
DRP - 5
in the furtherance of the business or affairs of the employer. . . .” Section 301(c)(1)
of the Act, 77 P.S. §411(1). In Brookhaven Baptist Church v. Workers’
Compensation Appeal Board (Halvorson), 912 A.2d 770 (Pa. 2006), our Supreme
Court held that voluntary actions – even well-intended ones – beyond an employee’s
designated responsibilities, are not within the course of employment.
In that case, an employee who was paid to cut a church’s grass was
fatally burned while destroying trimmings that he gathered while pruning shrubbery.
In reversing our finding that the fatality was compensable because the task was
“incidental to Decedent’s employment,” id. at 779, the Supreme Court held that “the
proper question is not whether trimming the bushes was incidental to the grass-
cutting task, but whether that activity was part of the employment arrangement.” Id.
Because “no trimming of bushes and overhanging tree limbs, no edging, picking up
sticks, hand mowing, or garden work, all of which are necessary to maintain the
grounds of the Church, were ever included in the fee to cut the grass,” it held that the
decedent’s injury did not occur in the course of his employment as a grass cutter. Id.
Like in Halvorson, Claimant was not acting within the scope of his
responsibilities as a catering agent when injured. As the Board stated:
Claimant was unable to prove he was furthering the
interests of [Employer] when he was injured. . . . . [T]he
WCJ determined that Claimant was not furthering the
business of [Employer] because his actions were voluntary,
and [Employer] did not direct Claimant to provide new
lockers nor was [Employer] aware that Claimant was going
to replace the lockers. Claimant was not supervised by
management. He may have believed he was furthering
[Employer’s] interests, but he never inquired about
DRP - 6
replacing the lockers with management. Claimant is also
unable to prevail on the theory that the condition of the
premises caused his injury. Claimant’s own testimony
shows that the loading dock where he was injured was
intended for tractor trailers. The height differential between
the pickup truck and the loading dock played a significant
part in his injury.
(S.R.R. at 23b.)3
Accordingly, because Claimant was not injured during the course of his
employment as a catering agent, I would affirm the Board’s denial of Claimant’s
claim petition.
_________________________________
DAN PELLEGRINI, Senior Judge
3
Employer’s purported ex post facto acquiescence to Claimant’s conduct is not supported by
substantial evidence and, in any event, is irrelevant. In finding that Employer acquiesced by
purportedly using the locker, the majority incorrectly relies on testimony made by Claimant that
was objected to by opposing counsel on the correct grounds that it was speculative in nature and
purely based upon hearsay. In any event, even if this testimony is accepted, “[w]e have repeatedly
held that merely allowing an employee to perform the act without directly ordering its performance
will not support an award. . . . [T]he fact that Employer was aware . . . and did not prohibit it is not
relevant.” See Pesta v. Workmen’s Compensation Appeal Board (Wise Foods), 621 A.2d 1221,
1223 (Pa. Cmwlth. 1993) (internal citation omitted).
DRP - 7