Wegmans Food Markets, Inc. v. WCAB (Tress)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wegmans Food Markets, Inc., :
:
Petitioner :
:
v. : No. 1343 C.D. 2017
: Argued: September 12, 2018
Workers’ Compensation Appeal :
Board (Tress), :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: October 10, 2018
Wegmans Food Markets, Inc. (Employer) petitions for review of an
order of the Workers’ Compensation Appeal Board (Board) that affirmed a decision
of a Workers’ Compensation Judge (WCJ) granting the claim petition filed by
Geraldine Tress (Claimant) and ordering Employer to pay disability benefits and
medical expenses under the Workers’ Compensation Act (the Act)1 for injuries that
Claimant suffered when she fell on a slippery floor in Employer’s supermarket
where she worked. For the reasons set forth below, we conclude that Claimant’s fall
was in the course of her employment because it was caused by a condition of
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Employer’s store and occurred only a few minutes after she clocked out of her work
shift and while she was in the process of leaving the store. We therefore affirm.
Claimant was employed by Employer as a part-time cashier in its
supermarket working three different positions, front-end cashier, café cashier, and
self-checkout cashier. (WCJ Decision Findings of Fact (F.F.) ¶¶4, 12, Reproduced
Record (R.R.) at 89a, 91a; Claimant Ex. 2 Claimant Dep. at 5-7, R.R. at 15a-17a.)
On April 12, 2016, Claimant worked an 8:00 a.m. to 1:30 p.m. shift as a café cashier.
(WCJ Decision F.F. ¶¶5, 12, R.R. at 89a, 91a; Claimant Ex. 2 Claimant Dep. at 8,
R.R. at 18a.) When her shift ended at 1:30 p.m., Claimant walked across the store
to the time clock, which is at the opposite end of the store from the café, and clocked
out and retrieved her purse from her locker. (WCJ Decision F.F. ¶¶5, 12, R.R. at
89a, 91a; Claimant Ex. 2 Claimant Dep. at 8, 10-11, R.R. at 18a, 20a-21a.) Claimant
then walked back toward the café area to pick up a hamburger at the pub, which is
near the café, on her way out of the store. (WCJ Decision F.F. ¶¶5, 12, R.R. at 89a,
91a; Claimant Ex. 2 Claimant Dep. at 8, 26-27, 33-34, R.R. at 18a, 36a-37a, 43a-
44a; Hearing Transcript (H.T.) at 9, R.R. at 70a.) On her way back to the café area
a few minutes after clocking out and before reaching the pub, Claimant stepped on
a slippery spot on the floor and slipped and fell. (WCJ Decision F.F. ¶¶5, 12, 14,
R.R. at 89a, 91a-92a; Claimant Ex. 2 Claimant Dep. at 8-9, 11-12, 27, R.R. at 18a-
19a, 21a-22a, 37a; H.T. at 9, R.R. at 70a.)
Earlier in the day while on break, Claimant had ordered the hamburger
for her personal consumption to be picked up and paid for when she was leaving for
the day. (WCJ Decision F.F. ¶¶5, 12, R.R. at 89a, 91a; Claimant Ex. 2 Claimant
Dep. at 8, 11, 24-25, R.R. at 18a, 21a, 34a-35a.) Claimant did not do any shopping
or place any orders on her way from the café to clock out or after she clocked out.
2
(WCJ Decision F.F. ¶¶5, 12, R.R. at 89a, 91a; Claimant Ex. 2 Claimant Dep. at 10-
11, R.R. at 20a-21a; H.T. at 10, R.R. at 71a.) Claimant was not required by
Employer to be in the place that she slipped at the time of her fall because she had
clocked out for the day, but the fall was in an area of the store that Claimant passed
through when she was required to clock out at the end of her shift. (Claimant Ex. 2
Claimant Dep. at 8-9, 26-28, 32, R.R. at 18a-19a, 36a-38a, 42a.)
Claimant intended to exit the store to go to her car after picking up her
hamburger. (WCJ Decision F.F. ¶¶5, 12, R.R. at 89a-91a; Claimant Ex. 2 Claimant
Dep. at 25-26, 33-34, R.R. at 35a-36a, 43a-44a.) There is an employee entrance near
the time clock, but employees are not required to use that entrance and may leave
work through other store entrances, including two main door entrances and an
entrance near the pub and café. (WCJ Decision F.F. ¶¶5, 12, R.R. at 89a-91a;
Claimant Ex. 2 Claimant Dep. at 25-26, 32-33, 36, R.R. at 35a-36a, 42a-43a, 46a.)
Claimant usually used the entrance near the time clock to leave after she clocked
out, but sometimes used other entrances to leave the store. (WCJ Decision F.F. ¶¶5,
12, R.R. at 89a-91a; Claimant Ex. 2 Claimant Dep. at 26, R.R. at 36a.)
In her fall, Claimant suffered an open fracture of her left forearm and
wrist that required surgery, and she was hospitalized for four days. (WCJ Decision
F.F. ¶¶5-7, 12-13, R.R. at 89a-91a.) As a result of this fracture, Claimant was unable
to return to her cashier job in 2016. (Id. F.F. ¶¶6-7, 12-13, 15, R.R. at 90a-92a;
Certified Record Item 12, Claimant Ex. 1, 10/19/16 Physician Note.) Claimant also
suffered right knee and right foot pain in her fall, but those injuries resolved without
treatment and do not disable her. (WCJ Decision F.F. ¶¶6-7, 12-13, 15, R.R. at 90a-
92a.)
3
On May 19, 2016, Claimant filed a claim petition seeking disability
benefits for her broken left arm and right knee and foot injuries suffered in her April
12, 2016 fall. Employer issued a Notice of Compensation Denial and filed a timely
answer to the claim petition denying that Claimant’s injury occurred in the course of
her employment. The WCJ held a hearing on the claim petition at which Claimant
testified and also received testimony from Claimant by deposition. The parties
stipulated that Claimant was employed by Employer on the day of her injury, that
notice was provided to Employer on the day of injury, and that the only issues in the
case were whether Claimant’s injury occurred in the course of her employment, the
exact diagnosis of Claimant’s injury, and the extent of Claimant’s disability. (WCJ
Decision F.F. ¶2, R.R. at 89a; Claimant Ex. 2 Claimant Dep. at 4-5, R.R. at 14a-
15a.) The parties also stipulated that medical evidence could be submitted by report,
and Claimant submitted a report of her treating physician. (WCJ Decision F.F. ¶¶2-
3, R.R. at 89a; H.T. at 5-6, R.R. at 66a-67a.) No witness other than Claimant
testified and Employer did not submit any medical evidence. On December 22,
2016, the WCJ issued a decision granting Claimant’s claim petition, ordering that
Employer pay Claimant total disability benefits of $132.56 per week from April 13,
2016 based on an average weekly wage of $147.29, and ordering that Employer pay
Claimant’s medical expenses for her April 12, 2016 left arm and right knee injuries.
Employer filed a timely appeal to the Board in which it contended that
the WCJ erred in finding that Claimant’s fall occurred in the course of her
employment and that the WCJ miscalculated Claimant’s average weekly wage and
total disability benefit rate. While that appeal was pending, the parties stipulated
that the WCJ’s average weekly wage and disability benefit rate findings were in
error. On September 14, 2017, the Board affirmed the grant of the claim petition
4
and award of disability and medical benefits and, in accordance with the parties’
stipulation, modified the WCJ’s decision and order to reflect an average weekly
wage of $140.57 and weekly disability benefit rate of $121.51 and to award a credit
to Employer for overpayments made to Claimant. This appeal followed.2
The only issue in this appeal is whether Claimant was in the course of
her employment when she fell. A workers’ compensation claimant bears the burden
of demonstrating that her injuries occurred in the course of her employment. Kmart
Corp. v. Workers’ Compensation Appeal Board (Fitzsimmons), 748 A.2d 660, 663
(Pa. 2000); Mackey v. Workers’ Compensation Appeal Board (Maxim Healthcare
Services), 989 A.2d 404, 406 (Pa. Cmwlth. 2010). The question of whether a
claimant’s injuries were in the course of employment is a question of law fully
reviewable by this Court. Kmart Corp., 748 A.2d at 663; Mackey, 989 A.2d at 406.
Section 301(c)(1) of the Act provides that injuries in the course of
employment include
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 … 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.
2
Our review is limited to determining whether an error of law was committed, whether the WCJ’s
necessary findings of fact are supported by substantial evidence, or whether Board procedures or
constitutional rights were violated. ICT Group v. Workers’ Compensation Appeal Board
(Churchray–Woytunick), 995 A.2d 927, 930 n.4 (Pa. Cmwlth. 2010).
5
77 P.S. § 411(1). Thus, an injury is work-related and compensable if either of the
following two tests is satisfied: (1) the injury occurred while the claimant was
furthering the employer’s business; or (2) even if the claimant was not furthering
employer’s business at the time, (a) the injury occurred on the employer’s premises,
(b) the claimant was required by the nature of her job to be on those premises, and
(c) the injury was caused by a condition of the premises or the employer’s operations
on the premises. Kmart Corp., 748 A.2d at 663-64; ICT Group v. Workers’
Compensation Appeal Board (Churchray–Woytunick), 995 A.2d 927, 930 (Pa.
Cmwlth. 2010); Allegheny Ludlum Corp. v. Workers’ Compensation Appeal Board
(Hines), 913 A.2d 345, 348 (Pa. Cmwlth. 2006).
Claimant’s fall occurred on Employer’s premises and was caused by a
condition of the premises. The second test for course of employment was therefore
satisfied and Claimant’s fall was in the course of her employment if Claimant was
required by the nature of her job to be on the premises. Employer argues that
Claimant was not required by her job to be on the premises and was not in the course
of her employment because she had clocked out, was not required to be where she
fell in order to perform her job or exit the store, and because she was on a personal
errand. We do not agree.
The fact that Claimant’s shift had ended and that she was not required
by Employer to be at the location of her fall at the time that she fell are not
determinative of whether she was required by the nature of her job to be on the
premises. This element does not require proof that the accident occurred at
claimant’s work location or that claimant was on duty at the time of the accident.
ICT Group, 995 A.2d at 929 (claimant’s fall on ice in employer’s parking lot when
she was leaving on her lunch break was within the course of employment). Rather,
6
it is sufficient to satisfy this element if the claimant’s presence on the premises at
the time of the accident “remained so connected to the employment relationship that
it was required by the nature of her employment.” Id. at 932.
Injuries that occur on the employer’s premises while the claimant is
coming to or leaving work are in the course of employment if they occur within a
reasonable period of time before or after the claimant’s work shift. Epler v. North
American Rockwell Corp., 393 A.2d 1163, 1164–66 (Pa. 1978) (on-premises
accident 20 minutes after the end of the employee’s shift was reasonably proximate
to work hours and within the course of employment); Allegheny Ludlum Corp., 913
A.2d at 348-50 (accident on employer’s premises 20-25 minutes before claimant’s
shift was in course of employment). “[A]ny injury occurring to an employee up until
the time he leaves the premises of the employer, provided that it is reasonably
proximate to work hours, is compensable.” Epler, 393 A.2d at 1165; ICT Group,
995 A.2d at 932 (quoting Epler). The rationale of this rule is that when the claimant
is on the employer’s premises, getting to and from her work station is a necessary
part of her employment. ICT Group, 995 A.2d at 932; Allegheny Ludlum Corp., 913
A.2d at 349.
Here, Claimant’s fall occurred when she was on her way out of
Employer’s store only a few minutes after she clocked out of her work shift. While
Claimant was not required by her duties to be in the area where she fell after she
clocked out, Claimant was required by her employment as a cashier to work in the
store and the fall occurred in an area of the store that she passed through in her work
duties on her way to clock out. (Claimant Ex. 2 Claimant Dep. at 8-9, 26-28, 32,
R.R. at 18a-19a, 36a-38a, 42a.) While Claimant could have left the store through a
different door that was closer to where she clocked out, that does not remove her
7
from the course of employment. Fashion Hosiery Shops v. Workmen’s
Compensation Appeal Board (Kurta), 423 A.2d 792, 796-97 (Pa. Cmwlth. 1980)
(claimant’s fall using a less direct entrance to employer’s store to start work was in
the course of employment where employer permitted employees to use any of three
entrances). Employees were permitted by Employer to use any of the four store
entrances to exit after work, including the entrance near the pub and café to which
Claimant was headed at the time of her fall. (WCJ Decision F.F. ¶¶5, 12, R.R. at
89a-91a; Claimant Ex. 2 Claimant Dep. at 25-26, 32-33, 36, R.R. at 35a-36a, 42a-
43a, 46a.) Because her fall occurred on Employer’s premises within a reasonable
period of time after the end of her shift, her presence on the premises “remained so
connected to the employment relationship that it was required by the nature of her
employment.” ICT Group, 995 A.2d at 932.
Employer argues that Claimant was outside the course of employment
because she was on a personal errand to pick up a hamburger before leaving the
store. This argument likewise fails. Where, as here, the accident occurred on the
employer’s premises and is caused by a condition of the premises, there is no
requirement that the claimant be engaged in furthering the employer’s interests for
the injury to be compensable. 77 P.S. § 411(1).
Contrary to Employer’s assertions, the case law does not support the
contention that Claimant’s intent to perform a brief personal errand removed her
from the scope of employment. The reported opinions of the Pennsylvania Supreme
Court and this Court that have denied workers’ compensation for injuries while the
claimant was on the employer’s premises involved situations where the claimant was
on the premises for non-work purposes for a lengthy period of time before or after
work, where the claimant was engaged in an extended or significant non-work
8
activity while already on a break, or where the injury was not caused by a condition
of the premises and the claimant was therefore required to show furtherance of the
employer’s business at the time of the accident.
In Morris v. Workers’ Compensation Appeal Board (Walmart Stores,
Inc.), 879 A.2d 869 (Pa. Cmwlth. 2005) and Pypers v. Workmen’s Compensation
Appeal Board (Baker), 524 A.2d 1046 (Pa. Cmwlth. 1987), the claimants were held
not to be in the course of their employment because they went to or stayed at the
employer’s premises for personal reasons an hour or more outside their work shift.
In Morris, the claimant was injured while shopping with her daughters in the store
where she worked, and she had come to shop several hours before her work shift.
879 A.2d at 870, 872. In Pypers, the claimant fell in the parking lot of the restaurant
where she worked an hour after her work shift and was still on the premises because
she had been partying and dancing in the restaurant after she finished work. 524
A.2d at 1047-49.
In Giebel v. Workmen’s Compensation Appeal Board (Sears, Roebuck
& Co.), 399 A.2d 152 (Pa. Cmwlth. 1979) and Kmart Corp., the claimants were
already on their lunch break, not in the process of coming to or leaving work. In
Giebel, the claimant, who worked in a part of her employer’s building separate from
its retail store, was injured while shopping in the retail store on her lunch break; the
Court held she was not in the course of her employment because she was on her
lunch break and she did not work in the retail store. 399 A.2d at 153. In Kmart
Corp., the claimant was not only on her lunch break eating with her husband at the
time of her injury, but her injury was caused by an attack by a non-employee, not a
condition of premises. 748 A.2d at 661-62.
9
In Wright v. Workers’ Compensation Appeal Board (Larpat Muffler,
Inc.), 871 A.2d 281 (Pa. Cmwlth. 2005), the employee was not in the process of
arriving at or leaving work and the injury was caused by a third party, not a condition
of the employer’s premises. Id. at 282-83 (claimant was hit by a car when crossing
a public highway on his way to employer’s parking lot for personal reasons after he
had already clocked in).
This Court’s unpublished opinion in Grice v. Workers’ Compensation
Appeal Board (Shop Rite), (Pa. Cmwlth., No. 449 C.D. 2009 filed July 28, 2009),
also argued by Employer, likewise involved facts that are significantly different from
this case.3 In Grice, the claimant, who worked in her employer’s supermarket as a
cashier, was injured picking up a purchase behind the counter of the seafood
department on her way out of the store after her shift ended. Slip op. at 1-2, 5. The
Court held that the claimant was not in the course of her employment because she
had clocked out from her shift and was on a personal errand in an area “where her
presence was not required by the nature of her employment.” Id. at 5-6. While the
accident in Grice occurred shortly after the claimant clocked out at the end of her
shift, the accident did not occur on a pathway toward a store entrance and the
evidence was that the claimant’s “position as a cashier does not require her presence
in the seafood department,” id. at 5 (emphasis omitted), not merely that the claimant
was not required to be in the seafood department after clocking out. Here, in
contrast, the accident happened in a part of the store that Claimant traversed in
clocking out from her shift and on a route toward a store entrance, not at the pub
3
Because it is an unreported decision, Grice is not binding precedent, but is considered by the
Court for its persuasive value. 210 Pa. Code § 69.414(a).
10
where she intended to pick up her personal purchase or in a separate area of the store
where she would not be during working hours.
Because Claimant’s injury occurred in Employer’s store, was caused
by a condition of the store, and occurred only a few minutes after her shift ended
while she was in the process of leaving the store, her injury was within the course of
her employment. Accordingly, we affirm the decision of the Board.
____________________________________
JAMES GARDNER COLINS, Senior Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wegmans Food Markets, Inc., :
:
Petitioner :
:
v. : No. 1343 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Tress), :
:
Respondent :
ORDER
AND NOW, this 10th day of October, 2018, the order of the Workers’
Compensation Appeal Board in the above matter is AFFIRMED.
____________________________________
JAMES GARDNER COLINS, Senior Judge