T. Dong v. WCAB (Eagle's Corner) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tong Dong, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Eagle’s Corner), : No. 784 C.D. 2018
Respondent : Submitted: February 1, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 22, 2019
Tong Dong (Claimant) petitions this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) May 31, 2018 order affirming the
Workers’ Compensation Judge’s (WCJ) decision denying Claimant WC benefits.
Claimant presents two issues for this Court’s review: (1) whether Claimant was in the
course and scope of his employment at the time he sustained his injuries; and (2)
whether the bunkhouse rule (Bunkhouse Rule) applies. After review, we affirm.
Claimant was employed by Eagle’s Corner (Employer) as a cook. On
May 26, 2015, assailants attacked Claimant while sleeping on the second floor above
Employer’s business and Claimant sustained numerous injuries. On September 4,
2015, Claimant filed a Claim Petition against Employer seeking total disability
benefits from May 26, 2015 and ongoing. On December 17, 2015, Claimant filed a
Claim Petition against the Uninsured Employers Guaranty Fund making identical
allegations. The Petitions were consolidated and the WCJ held hearings on March 3
and May 12, 2017. The matter was bifurcated for a preliminary determination of
whether Claimant was in the course and scope of his employment at the time of his
alleged injury. On June 8, 2017, the WCJ concluded that Claimant’s alleged injuries
were not sustained in the course and scope of his employment and dismissed
Claimant’s Claim Petitions. Claimant appealed to the Board. On May 31, 2018, the
Board affirmed the WCJ’s decision. Claimant appealed to this Court.1
Initially, Section 301(c)(1) of the WC Act (Act)2 provides, in relevant
part:
The term ‘injury arising in the course of his
employment,’ . . . shall not include an injury caused by an
act of a third person intended to injure the employe because
of reasons personal to him, and not directed against him as
an employe or because of his employment; . . . but shall
include all other injuries sustained while the employe is
actually engaged in the 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.
77 P.S. § 411(1) (emphasis added). The Bunkhouse Rule, as the Pennsylvania
Supreme Court has explained, is as follows: “[T]he Act allows compensation for
injuries an employee sustains in their [sic] leisure time while occupying a bunkhouse
or sleeping quarters provided by the employer if the nature of the employee’s work
mandates that the employee reside on the employer’s premises.” O’Rourke v.
Workers’ Comp. Appeal Bd. (Gartland), 125 A.3d 1184, 1190 (Pa. 2015) (emphasis
added).
1
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
2
Claimant first argues that he was in the course and scope of employment
at the time of his injuries because Employer recruited him and he would only accept
the job if Employer provided his lodging. Thus, Claimant contends that it was in
Employer’s interest to provide Claimant lodging. Claimant further asserts that
because his working for Employer was contingent upon his lodging at Employer’s
premises, lodging was part of the employment contract and he is entitled to WC
benefits. The Court disagrees.
[A]n employee will be awarded [WC] benefits if he . . .
sustains an injury while ‘engaged in the furtherance of the
employer’s business or affairs, regardless of whether the
injury occurred on the employer’s premises.’ Kmart Corp.
[v. Workers’ Comp. Appeal Bd. (Fitzsimmons)], . . . 748
A.2d [660,] 664 [(Pa. 2000)]. If the employee was not
furthering the employer’s affairs, the employee may only
receive [WC benefits] if the employee was (1) injured on
premises occupied or under the control of the employer, (2)
required by the nature of his employment to be present
on the premises; and (3) sustained injuries caused by the
condition of the premises or by operation of the employer’s
business or affairs thereon. Id.
O’Rourke, 125 A.3d at 1189 (emphasis added).
Here, Claimant testified:
Q. And were you required by [Employer] to live there in
order to work there?
A. No, I just said that if I don’t get to live there, I wouldn't
work there because I wouldn’t be able to leave at nighttime
and I wouldn’t be able to get there for work the next day.
Q. But the Employer[] didn’t require it?
A. No.
3
Reproduced Record (R.R.) at 89a (emphasis added). Further, Employer’s
representative Xue Zhang (Zhang) related:
Q. Did [you] tell [Claimant] that he had to live on the
second floor or he couldn’t work for your company?
A. No.
....
Q. Did you ever discuss with [Claimant] why he was living
on the second floor?
A. I didn’t really have a discussion. Whether he lived there
or not I don’t really -- it doesn’t matter. If he doesn’t live
there is actually better for me.
Q. Why is it better for you if he doesn’t live there?
A. I will be saving electricity and saving water.
R.R. at 115a-116a (emphasis added). It is clear from Claimant’s admission and
Zhang’s testimony that Employer did not require Claimant to live on Employer’s
premises. Accordingly, Claimant was not in the course and scope of his employment
when he sustained his injuries.
Claimant next argues that he was in the course and scope of employment
at the time of his injury because the Bunkhouse Rule applies. Specifically, Claimant
maintains that his living arrangement was reasonably necessary to perform the tasks
required by Employer. The Court disagrees.
First, Claimant’s presence on Employer’s second floor at 5:00 a.m. was
not reasonably necessary for Claimant to complete his tasks as Employer’s cook.
Second, Employer did not receive any benefit from allowing Claimant to live on the
premises. In fact, Zhang testified to the contrary. Moreover,
[w]e have consistently acknowledged the remedial nature of
the [Act] which is intended to benefit workers, but are ‘also
mindful that the Act was not intended to make the employer
4
an insurer of its employees’ lives and health.’ Kmart Corp.,
. . . 748 A.2d at 664 . . . . As Claimant was not engaged in
the furtherance of [his] Employer’s business when [he] was
injured while sleeping [on the second floor] nor was [he]
required by the nature of [his] employment to be [on the
second floor] at the time of the attack, [this Court]
conclude[s] Claimant’s injuries were not sustained in the
course of [his] employment and are not compensable under
the [Act].
O’Rourke, 125 A.3d at 1193. Accordingly, the Bunkhouse Rule does not apply in
this case.
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tong Dong, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Eagle’s Corner), : No. 784 C.D. 2018
Respondent :
ORDER
AND NOW, this 22nd day of February, 2019, the Workers’
Compensation Appeal Board’s May 31, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge