IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Louis A. Grant, Inc., : Petitioner : : v. : No C.D : Submitted: April 25, 2008 Workers' Compensation Appeal Board : (Kammerdiener), : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: July 10, 2008 Louis A. Grant, Inc. (Employer) petitions for review of the August 17, 2007, order of the Workers Compensation Appeal Board (WCAB), which affirmed the decision of a workers compensation judge (WCJ) granting the fatal claim petition filed by Patricia Kammerdiener (Claimant). We affirm. On May 16, 2005, Claimant filed a fatal claim petition alleging that her husband, Merle Kammerdiener (Decedent), died on June 12, 2003, after suffering a fatal heart attack during the course and scope of his employment with Employer. Claimant also alleged that she was living with Decedent and was totally dependent upon him at the time of his death. Employer filed a timely answer denying Claimant s allegations, and the matter was assigned to a WCJ.

2 Claimant testified on her own behalf and presented the deposition testimony of Larry E. Hurwitz, M.D. Employer offered the testimony of Richard Stoltz and Scott J. McLachlan, Decedent s coworkers, and the deposition testimony of Mark Geller, M.D. The following facts are summarized from the WCJ s findings. Decedent worked for Employer for about seventeen years; his job title was operating engineer. Employer routinely assigned Claimant to work at locations in other states and also in other countries. At the time of his death, Decedent was assigned to work located in Rockdale, Texas. The work was scheduled to begin on Monday, June 9, (WCJ s Findings of Fact, No. 4.) Decedent and his two coworkers drove together from Pennsylvania to Texas. They started their trip late in the evening of June 6, 2003, in a motor vehicle provided by Employer. The total driving time, exclusive of stops, was twenty-seven hours. The three employees were paid their wages and a meal allowance during the trip. (WCJ s Findings of Fact, No. 5.) The men arrived in Rockdale during the early afternoon on Sunday, June 8 th. They drove to a restaurant for lunch and checked into their motel rooms, which were paid for by Employer, at about 3:00 p.m. Decedent asked to join Stoltz in his customary exercise at a local gym; Decedent explained that, during the forty-five days they expected to be working in Rockdale, he intended to exercise and stop smoking in order to get back into shape. Instead of going to a gym, Decedent and Stoltz went for a walk, which lasted about thirty minutes. Decedent 2

3 was sweating when the walk started, and his shirt was wet with perspiration when it ended. When they returned to the motel, Decedent asked Stoltz to measure the distance they walked using their car s odometer. Stoltz measured the distance at three miles. When Stoltz returned to Decedent s room a few minutes later, he found Decedent in the midst of a cardiac event, which led to Decedent s death four days later. McLachlan was present during a portion of the cardiac event. (WCJ s Findings of Fact, Nos. 6, 9.) Both Dr. Hurwitz and Dr. Geller are board-certified cardiologists. Both reviewed Decedent s medical records and Stoltz s deposition testimony. Dr. Geller also reviewed the transcripts of testimony by Claimant, McLachlan and Dr. Hurwitz. Neither physician examined Decedent. (WCJ s Findings of Fact, No. 7.) Dr. Hurwitz and Dr. Geller agreed that Decedent had serious cardiac risk factors that predisposed him to a cardiac event. They described these risk factors as a sedentary life style, cigarette smoking, high blood pressure, cholesterol abnormalities and the fact that Decedent was overweight. Each physician testified that these risk factors were the underlying cause of Decedent s fatal cardiac event. Each also testified that the three-mile walk was a precipitating factor in this event. Testifying for Employer, Dr. Geller stated that the three-mile walk triggered the cardiac event in Decedent, who was a walking time bomb for such an event. (WCJ s Findings of Fact, No. 8.) Dr. Geller analogized the causal relationship between the walk and Decedent s cardiac event to a situation where a middle age man with a sedentary lifestyle and cardiac risk factors shovels heavy, wet snow, 3

4 which is a strenuous activity, and suffers an acute cardiac event. (R.R. at 168a- 69a.) Although the WCJ did not issue specific rulings, the WCJ s decision reflects that he found each of the witnesses to be credible. In addition, the record confirms that the differences between the factual accounts offered by Stoltz and McLachlan are insignificant. Similarly, although Drs. Hurwitz and Geller disagreed as to whether heat was a contributing factor to Decedent s cardiac event, the remainder of their expert opinion testimony was consistent. Citing the pertinent testimony of both medical witnesses, the WCJ found that the three-mile walk triggered Decedent s fatal cardiac event. The WCJ also found that when Decedent and Stoltz went for their walk, they were filling in dead time that occurred because they were working away from home. (Findings of Fact, Nos. 9-10, 12.) Based on these findings, the WCJ granted Claimant s fatal claim petition, concluding that Decedent was in the course of his employment at the time of his cardiac event and that Claimant had met her burden of proving her entitlement to benefits. Employer appealed to the WCAB, which affirmed the WCJ s decision. On appeal to this court, 1 Employer first argues that the WCJ erred in 1 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S

5 concluding that Decedent was in the course of his employment at the time of his death. Citing Carr v. Workmen s Compensation Appeal Board (May Department Store), 671 A.2d 780 (Pa. Cmwlth. 1995), appeal denied, 544 Pa. 662, 676 A.2d 1202 (1996), 2 Employer asserts that Decedent s death is not compensable because the actual job had not yet begun, Decedent was not on call at the time of his death, and he was not furthering Employer s business when he went for a walk. We disagree. Pursuant to section 301(c)(1) of the Workers Compensation Act (Act), 3 an employee s injury is compensable, regardless of the employee s previous physical condition, 4 if it is sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer. 77 P.S. 411(1). The phrase actually engaged in the furtherance of the business or affairs of the employer must be given a liberal construction to effectuate the humanitarian objective of the Act. Lehigh County Vo-Tech School v. Workmen s Compensation 2 The claimant in Carr was staying in Massachusetts for a job-related seminar that ended at 5:30 p.m. After returning to her hotel, the claimant and her supervisor decided to go sightseeing in Boston. They visited various bars for drinks and left the last bar at around 12:30 a.m. The claimant was injured in a one-vehicle accident while driving back to the hotel. The court observed that the claimant was pursuing personal interests, sightseeing and drinking in Boston, over thirty-five miles from the hotel provided by her employer. The court concluded that her actions did not further the interests of her employer and affirmed the WCJ s denial of benefits. 3 Act of June 12, 1915, P.L. 736, as amended, 77 P.S. 411(1). 4 An employee s preexisting condition does not preclude an award of benefits where the evidence establishes that his work activity or conditions either triggered or influenced his death by aggravating such preexisting condition. Matlack, Inc. v. Workmen s Compensation Appeal Board (Rennie), 454 A.2d 1172 (Pa. Cmwlth. 1983). 5

6 Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995). In addition, this court repeatedly has held that the course of employment of a traveling worker is necessarily broader than that of an ordinary employee. Duquesne Truck Service v. Workmen s Compensation Appeal Board (McKeesport Truck Service), 644 A.2d 271 (Pa. Cmwlth.), appeal denied, 539 Pa. 657, 651 A.2d 543 (1994). If a traveling employee is injured after setting out on the employer s business, it is presumed that he or she was furthering the employer s business at the time of the injury. Lenzner Coach Lines v. Workmen s Compensation Appeal Board (Nymick, Sr.), 632 A.2d 947 (Pa. Cmwlth. 1993). To rebut that presumption, an employer must prove that the employee s actions were so foreign to his or her usual actions that they constituted abandonment of employment. Id. It also is well settled that a traveling employee s required layover period is not considered a breach in the employment relationship. Roadway Express, Inc. v. Workmen s Compensation Appeal Board (Seeley), 532 A.2d 1257 (Pa. Cmwlth. 1987), appeal denied, 519 Pa. 662, 546 A.2d 623 (1988). Moreover, a traveling employee need not be engaged in the actual performance of work at the moment of an injury to be considered in the course of his employment. Lenzner Coach Lines. Thus, even an employee s recreational activities during the wait for resumption of actual work duties do not take the employee outside the scope of his or her employment. Id. We emphasized these principles Schreckengost v. Workmen s Compensation Appeal Board, 403 A.2d 165 (Pa. Cmwlth. 1979). In Schreckengost, the claimant was a truck driver who parked his truck in a line of trucks waiting to be loaded at a plant the next morning. The claimant took a taxi to 6

7 a restaurant, went to a bar for a beer after dinner and returned to his truck, where he intended to sleep. Later the same night, the claimant and two other drivers drove a truck to get snacks and got lost on the way back to the plant. While the driver stopped to look at a map, the claimant went to the back of the truck to relieve himself. The claimant was accosted by a robber and shot in the face. Affirming the WCJ s grant of benefits, the court in Schreckengost rejected the argument that the claimant had departed from the course of his employment and was acting solely for his own convenience. The court noted that the claimant was out of state on his employer s business and was required to spend the night at that location through no fault or choice of his own. The court held that the claimant was acting in the course of his employment even though his only "job duty" was to wait for his load in the morning. The court observed that the claimant waited at the employer's convenience and concluded that the claimant s conduct was not so inconsistent with the purpose of his trip as to constitute an abandonment of his employment. Like the claimant in Schreckengost, Decedent was in Texas at Employer s direction and convenience. Employer paid Decedent for his travel time as well as his expenses. The fact that the job did not begin until the following day is of no moment. We agree that Decedent s exercise during the waiting period was not conduct so foreign to his usual actions as to constitute an abandonment of his employment. 7

8 Employer also argues that the WCJ failed to issue a reasoned decision. Specifically, Employer asserts that the WCJ failed to consider the evidence concerning Decedent s pre-existing risk factors and inconsistencies between Claimant s testimony and Decedent s medical records. A decision is reasoned if it allows for adequate review by the WCAB without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards. Daniels v. Workers Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003). Where conflicting evidence is presented, the WCJ must adequately explain the reasons for rejecting or discrediting competent evidence. Section 422(a) of the Act, 77 P.S Relying on the consistent testimony of the parties medical witnesses, the WCJ set forth Decedent s serious cardiac risk factors as well as the experts opinions that these risk factors were the underlying cause of Decedent s fatal cardiac event. (WCJ s Findings of Fact, No. 8.) The WCJ cited Claimant s testimony only in support of findings that she was dependent upon Decedent at the time of his death and that Decedent did not have complaints when he left home. (WCJ s Findings of Fact, Nos. 3, 10.) We discern no merit to Employer s assertions that the WCJ failed to issue a reasoned decision. Accordingly, we affirm. ROCHELLE S. FRIEDMAN, Judge 8

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Louis A. Grant, Inc., : Petitioner : : v. : No C.D : Workers' Compensation Appeal Board : (Kammerdiener), : Respondent : O R D E R AND NOW, this 10th day of July, 2008, the order of the Workers Compensation Appeal Board, dated August 17, 2007, is hereby affirmed. ROCHELLE S. FRIEDMAN, Judge