Work Break + Dog Bite = $ Compensation

In the review and assessment of workers' compensation disability claims, we often look to appellate case law decisions  for their precedential value and guidance in providing instruction to our clients.
At times we believe we can "draw a line in the sand" and proclaim the boundaries of reason.
At times it seems we cannot ...

We know that the Pennsylvania Workers compensation Act provides for the payment of wage loss benefits and medical expense reimbursements to the employee who sustains a work injury, "in the course of employment and ... related thereto".

An injury arises in the course of one's employment, when:
   i.    the employee is actually engaged in the furtherance of the employer's business,
        (whether on the premises or not)
   ii.  the employee is injured by a condition of the premises,
   iii. the employee is injured on the premises, where his/her presence is required by one's
        employment.
[ See Section 301(c)(1); 77 P.S. 411(1).].

Small temporary departures, "breaks" from work to administer to personal comforts, do not remove one from the course of employment.

It is often said "Whether an employee is acting within the scope of employment at the time of injury is a question of law, which must be based on the findings of fact made by the Workers' Compensation Judge".

In the review and assessment of workers' compensation disability claims, we often look to appellate case law decisions  for their precedential value and guidance in providing instruction to our clients.
At times we believe we can "draw a line in the sand" and proclaim the boundaries of reason.
At times it seems we cannot ...

1912 Hoover House Restaurant v WCAB (Soverns,) No. 309 C.D. 2014 is a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Jubelirer on November 10, 2014. This decision affirms an award of benefits for a dog bite which occurred during employee's smoke break.

Factual and Procedural Background. 

Employee primarily worked full-time in the paint department of a manufacturer.
He worked one night per  week as a cook with this Employer and earned $31.00 per week.
His concurrent Average Weekly wage was $931.00. (TTD $620.67).

While working as a cook, he went outside, in a designated area for a cigarette break.
While outside the father of a co-worker arrived with her dog.
Employee was told the dog had a tendency to "snap" (bite) at people.
He asked permission to pet the dog ... to see if it was receptive (to what?).
He then let the dog lick his face.
The dog growled and bit Employee's lower lip. (duh)

The WCJ award was for facial disfigurement of 63 weeks x $620.67 = $39,102.21.


Commonwealth Court Reasoning

Employee smoking break was allowed by Employer.
Employee was in a designated area, ie work premises.
He was injured in an area, under the employer's control.

Employer argued the WCJ decision was not a "reasoned decision".
This argument was rejected.

Employer argued this was not a temporary departure,as there was no element of furthering the business interests of Employer.

We know that in Pennsylvania Workers' Compensation, it is not a temporary departure from one's employment as a delivery driver, to run, jump, attempt to touch the rim of a basketball hoop near a customer delivery... and fail, causing a traumatic brain injury. See: The Baby's Room v. WCAB (Stairs) 860 A.2d 200 (Pa. Cmwlth. 2004). 

Similarly, engaging in a little dog affection, cannot be said to be a departure from one's employment.

One disturbing aspect of the reasoning employed by the WCJ and recited by the Court is the reference to fact that "there was no employee handbook or posted list of rules notifying employees what is required or expected of them". (while on breaks).

Undoubtedly this will lead to a new list of work rules including,  "No kissing dogs on smoke break".

Practice Pointers:

1. One cannot plan for every type of circumstance that may arise  ... which could be considered a part of the work day. I do not advocate an attempt to enumerate all of the activities that are not permitted on work breaks. You will probably miss a few activities. 

Yet, perhaps, that is the only remedy to attempt to reduce exposure to this type of liability, as the Court seems reluctant to make a common-sense rule.

2. Here, Employer presented testimony,  if adopted by the WCJ, would have supported a denial of this claim. However, we know the WCJ is free to assess the credibility and accept the testimony of any witness, in whole or in part. 

3. It seems to me that there MUST be a line, a reasonable boundary ... where the voluntary deliberate activities of the employee remove them from the scope of employment and Employer liability, for foolish acts. 

I understand the concept of Employer liability, where an employee is injured as a result of a condition of the work premises OR as a result of being in an area required for work. 

BUT, when here is a voluntary act by an employee, which is removed, not associated with the workplace, there should be no liability upon the Employer. 

Let the worker pursue a civil remedy against the dog-owner.