B. Wormley v. Air Wisconsin Airlines (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Barbara Wormley, :
Petitioner :
:
v. : No. 89 C.D. 2022
: Submitted: August 12, 2022
Air Wisconsin Airlines (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: November 22, 2022
Barbara Wormley (Claimant) petitions for review of an adjudication of
the Workers’ Compensation Appeal Board (Board) that denied her claim petition.
In doing so, the Board affirmed the decision of the Workers’ Compensation Judge
(WCJ) that Claimant was not acting in the course and scope of her employment when
she sustained an injury traveling to work and in uniform. Claimant asserts that the
Board erred because her travel by train was a reasonable way for her to access her
employer’s premises. We affirm the Board.
Background
Claimant works as a flight attendant for Air Wisconsin Airlines
(Employer). On December 5, 2019, Claimant fell on a Southeastern Pennsylvania
Transportation Authority (SEPTA) train platform attempting to get on a train on her
way to work. She sustained injuries to her left shoulder, left leg, left hip, upper back,
lower back, and right knee.
On January 8, 2020, Claimant filed a claim petition alleging a work
injury. The claim petition was assigned to a WCJ.
In support of her claim petition, Claimant presented her testimony by
deposition and before the WCJ via video. Claimant testified that she has worked as
a flight attendant for Employer for approximately 13 years. For 12 of those years,
she was based out of Philadelphia International Airport. In early 2019, Claimant’s
hub changed from Philadelphia to Chicago O’Hare. She had the option to relocate
to Chicago, but she chose to stay in Philadelphia. Consequently, Claimant had to
commute from Philadelphia to Chicago.
Claimant testified that she would book a flight from Philadelphia to
Chicago, but if the flights were full, she would fly standby. Her preference was to
fly to Chicago the day before she was scheduled to work and get a hotel or sleep in
a chair at the airport. Claimant was not paid for her time commuting.
Claimant testified that she lives in northeast Philadelphia. To get to the
Philadelphia Airport, she usually boarded the SEPTA train at Forest Hills, which
was approximately two blocks from her house, and took the train to Jefferson Station
in Center City Philadelphia. From there, she would board another train to the airport.
Claimant testified that she was scheduled to work in Chicago on
December 6, 2019. Because she could not find any flights departing Philadelphia to
Chicago early on December 6, 2019, she decided to fly to Chicago the day before,
on a 3:20 p.m. or 4:56 p.m. flight.
On December 5, 2019, Claimant had a doctor’s appointment at
Jefferson Hospital and then visited her niece, who was a patient at the hospital. From
the hospital, she walked to Jefferson Station to get a train to the airport for the 3:20
p.m. flight to Chicago. Claimant was wearing her uniform because “[it is] just much
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easier to get through [security at the airport].” Claimant Deposition at 31;
Reproduced Record at 142a (R.R. __). Moving out of the way of another passenger,
Claimant stepped into the gap between the train and the platform and fell. Claimant
testified that she “screamed” because “[t]he pain was excruciating” in her shoulder,
arm, lower back, thigh, and buttock. Claimant Deposition at 33; R.R. 144a.
Claimant was taken to the emergency room at Jefferson Hospital for treatment.
Afterwards, she had to use a walker to get around her house for three weeks.
Claimant testified that on December 11, 2019, she saw Dr. Simon
Newsom, who referred her to Dr. Okon, a sports medicine doctor. Dr. Okon advised
Claimant that the injury had to run its course. Claimant also treated with Dr. Scott
Pello, who prescribed Gabapetin and Lidocaine for Claimant’s pain.
Claimant testified that she has only achieved partial relief. As a result
of the injury to her left shoulder, her left arm will not raise up all the way. She
cannot reach her right arm to her back, and she has pain in her shoulder down into
her right arm. She also has soreness in her left elbow. Her low back pain leaves her
unable to sit or stand long, and she cannot walk more than three blocks. Claimant
testified that she does not sleep and cannot lift anything. As a consequence,
Claimant does not believe she can return to her job as a flight attendant. She began
receiving retirement social security as of November 18, 2018.
On cross-examination, Claimant stated that Employer did not
reimburse her for hotels or flights, but it has agreements with other airlines for flight
attendants. This allows her to fly out of different airports, other than Philadelphia.
Claimant agreed that it is up to her to figure out the logistics of getting to Chicago,
and Employer does not assist her with that. Further, Employer does not reimburse
3
Claimant for any expenses related to her train or cab fares to the airport. Claimant
testified that she could have driven to Chicago to go to work, had she so desired.
Claimant acknowledged that her job as a flight attendant never changed.
Rather, her commute changed. Claimant acknowledged that she could have traveled
to Chicago without wearing her uniform, but she chose to wear it because “[it is]
much easier to get through [the Transportation Security Administration’s] known
crew member [screening], which is where crew members check in through.” Notes
of Testimony, 11/16/2020, at 44 (N.T. __); R.R. 100a.
Robert Frish, Chief Operating Officer, testified for Employer. He
explained that Employer provides service for other airlines by contract. When
Employer’s contract work for American Airlines ended, Employer began providing
service to United Airlines, which required Employer to change its hub and crew
locations. Employer closed its bases in Philadelphia and Norfolk, Virginia, and
opened bases in Milwaukee, Chicago O’Hare, Washington Dulles, and Columbia,
South Carolina.
Frish testified that the collective bargaining agreement allows crew
members to be reimbursed for moving expenses. Had Claimant decided to relocate
to Chicago, she would have been reimbursed for the expense of that move. Since
she decided not to relocate, “no arrangements [were] made.” N.T. 17; R.R. 73a. In
other words, it was up to Claimant to get herself to work. Frish testified that “[i]t
does not matter to us how [crew members] get [to their hub] as long as [they are] at
work when scheduled[.]” N.T. 24; R.R. 80a.
Frish explained that flight attendants report to duty 45 minutes prior to
their first scheduled flight for the day. On December 5, 2019, the day of Claimant’s
injury, she was not on the clock. Frish stated that many flight attendants and pilots
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prefer to travel in uniform to bypass security protocol and to access certain parts of
the airport.
On cross-examination, Frish stated that Employer does not “control
where people live.” N.T. 28; R.R. 84a. Employer does not mandate that crew
members live near their base airport. Commuting is accepted in the industry. Frish
did not agree that commuting was at “no cost” to Claimant, explaining that it
depended on how Claimant traveled. Id. He explained that if Claimant bought a
ticket on American Airlines, she would pay the price of the ticket. If she used a
cabin reciprocal jump seat agreement, there was a cost. Likewise, if she used “non-
[reciprocal] travel benefits,” e.g., to upgrade to first class, there was an added cost.
Id.
With regard to the wearing of the uniform, Frish testified that flight
attendants often wear their uniform for personal travel because it makes it easier to
move around the airport. Wearing the uniform has nothing to do with commuting,
and Employer does not require its employees to wear uniforms when commuting.
WCJ Decision and the Board Adjudication
The WCJ found the testimony of Claimant and Frish credible. Further,
the WCJ found that Claimant was not a traveling employee, explaining that she had
a fixed place of employment at Chicago O’Hare Airport. She chose to live in
Philadelphia and commute to Chicago O’Hare. The WCJ found that when Claimant
was injured on December 5, 2019, she was commuting to work and was not on
Employer’s premises. Claimant was responsible for getting herself to the airport to
get a flight to Chicago O’Hare. Employer did not provide transportation for its
employees to and from work; it only provided general flight privileges from airport
to airport.
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Based upon these findings, the WCJ concluded that Claimant did not
meet her burden of proving that she was in the course of employment on December
5, 2019, when she was injured at the train station. Therefore, the WCJ denied her
claim petition.
The Board affirmed the WCJ. It explained that Claimant did not sustain
her injuries on Employer’s premises or while engaged in the furtherance of
Employer’s business or affairs. On December 5, 2019, Claimant was attempting to
board a train to the airport, but her shift as a flight attendant did not begin until 8:00
a.m. the next day. Frish’s credited testimony established that Claimant was
responsible for arranging her own transportation to the base hub and that a crew
member only goes on duty 45 minutes before her scheduled flight. Accordingly, at
the time of her injury, Claimant was still off duty from her work as a flight attendant
and commuting to work.
Claimant petitioned for this Court’s review.
Appeal
On appeal,1 Claimant raises one issue, i.e., that the Board erred in
concluding that her injury did not occur in the course and scope of her employment.
She argues that her injury was compensable because she was on her way to work, in
uniform, and traveling by train to the Philadelphia Airport to fly to Chicago O’Hare
Airport, which was a reasonable way for her to access Employer’s premises. In
support of her argument, Claimant cites US Airways, Inc. v. Workers’ Compensation
Appeal Board (Bockelman), 221 A.3d 171 (Pa. 2019), and Stewart v. Workers’
1
This Court reviews the Board’s adjudication to determine whether the necessary findings of fact
are supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Murphy v. Workers’ Compensation Appeal Board (Mercy
Catholic Medical Center), 721 A.2d 1167, 1169 n.1 (Pa. Cmwlth. 1998).
6
Compensation Appeal Board (Bravo Group Services, Inc.), 258 A.3d 584 (Pa.
Cmwlth. 2021).
Employer counters that Claimant was not engaged in furthering the
activities of Employer when she was injured. The injury occurred the day before
she was scheduled to work out of Chicago O’Hare. Additionally, Employer states
that the train station is not part of its premises because it did not issue any directive
or exercise control over the mode of its employees’ transportation to and from work.
To be eligible for compensation, an injured employee must establish
that his injury occurred in the course of employment. Section 301(c)(1) of the
Workers’ Compensation Act (Act)2 states, in pertinent part, as follows:
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, except as provided under subsection
(f), arising in the course of his employment and related thereto .
. . . The term “injury arising in the course of his employment,”
as used in this article . . . shall include all [ ] 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) (emphases added).
Case law has construed Section 301(c)(1) to mean that an injury arises
in the course of employment in two distinct situations. First, an injury is
compensable if it occurs while the claimant is furthering the business or affairs of
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
7
her employer, without regard to where the injury occurs. Second, the claimant may
be entitled to compensation if the injury occurs on the employer’s premises.
Specifically, compensation may be awarded if the employee
(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 his 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.
Workmen’s Compensation Appeal Board (Slaugenhaupt) v. United States Steel
Corporation, 376 A.2d 271, 273 (Pa. Cmwlth. 1977). Whether an employee is
injured in the course of employment is a question of law to be determined on the
basis of the WCJ’s findings of fact. Markle v. Workers’ Compensation Appeal
Board (Bucknell University), 785 A.2d 151, 153 (Pa. Cmwlth. 2001).
Claimant does not assert that she was furthering Employer’s business
when she was injured. Rather, Claimant argues that she was injured on Employer’s
premises. Employer responds that because it does not own, maintain, or control the
train or the train platform, and the train is not a part of Employer’s business,
Claimant did not show an injury on its premises. We agree with Employer.
Whether the injury occurred on the employer’s “premises” under
Section 301(c)(1) of the Act turns on whether the site of the accident is so connected
with the employer’s business as to form an integral part thereof. Epler v. North
American Rockwell Corporation, 393 A.2d 1163, 1165-67 (Pa. 1978). In this
analysis, “the critical factor is not the employer’s title to or control over the area, but
rather the fact that [the employer] had caused the area to be used by [its] employees
in performance of their assigned tasks.” Id. at 1167.
8
Here, Claimant fell on a train platform. The train and its platform were
not a place where Employer’s “business or affairs are being carried on,” or where
Claimant’s “presence thereon was required by the nature of her employment.”
Section 301(c)(1) of the Act, 77 P.S. §411(1). Claimant was a commuting employee,
and it did not matter how she got to work. As Claimant stated, it was up to her “to
figure out the logistics of getting to work in Chicago.” WCJ Decision at 5, Finding
of Fact No. 1.l. To get to the Philadelphia Airport in order to board a flight for
Chicago, Claimant would take a train, and on occasion, she would take a taxi or a
bus part of the way. Claimant presented no evidence that her presence on the train
was required by the nature of her employment.
Nevertheless, Claimant argues that this case is governed by US
Airways, Inc., 221 A.3d 171, and Stewart, 258 A.3d 584. In US Airways, Inc., an
airline employee was injured while riding an airport shuttle bus to an employee
parking lot after her shift ended. The employer did not own the shuttle bus or the
parking lot and disputed liability for the claim. The employer argued that because
the employee was injured on the shuttle bus, she was not injured on its “premises”
under Section 301(c)(1) of the Act. The Supreme Court rejected this argument,
reasoning that an employer’s premises under Section 301(c)(1) of the Act are not
limited to property that the employer legally owns or physically controls. It
concluded that the airport parking lot was integral to the employer’s business
operations because the employee had to use the shuttle service to enter the
workplace. As such, the Supreme Court held that the employee was injured on the
employer’s “premises” within the meaning of Section 301(c)(1) of the Act.
In Stewart, the claimant performed janitorial work for his employer at
the Smith Kline building in King of Prussia. To get to work, the claimant took public
9
transportation from his home in Philadelphia to the Gulph Mills Station. From the
train station, he took a shuttle van to the front entrance of the Smith Kline building.
Smith Kline owned and operated the shuttle van. The claimant was not required to
take the shuttle van, and he was not paid for his time while riding the shuttle van.
One day, while exiting the shuttle van in front of the Smith Kline building and before
starting his shift, the claimant fell to the ground, injuring his left foot and ankle.
This Court determined that the claimant showed a premises injury. The
claimant slipped and fell a few feet from the front entrance of the building where
“the employee’s presence thereon [was] required by the nature of his employment.”
Stewart, 258 A.2d at 593 (quoting Section 301(c)(1) of the Act, 77 P.S. §411(1)).
Additionally, the claimant’s accident took place in an area integral to the employer’s
workplace, a few feet from the doors of the building where he worked. This area
constituted a reasonable means of ingress to the work site. Further, the claimant
slipped and fell to the ground while stepping down off the shuttle van, and the ground
where the claimant landed constituted the premises.
Claimant argues that the train is similar to the shuttle bus in US
Airways, Inc. and Stewart. Although not owned or controlled by Employer,
Employer “caused the area to be used by the employees to perform their job.”
Claimant Brief at 19-20. However, the WCJ found that “[i]t [does not] matter to []
Employer how the flight attendant gets to work[,]” WCJ Decision at 6, Finding of
Fact No. 3.e, and Claimant does not dispute this finding. Claimant presented no
evidence that the train station had any relation to the operation of Employer’s
business or that Employer had any obligation to provide Claimant with access to the
train or transportation to the airport. Claimant was not reimbursed for any travel and
could have chosen any means to get to the Philadelphia Airport, or, for that matter,
10
to Chicago. The trains were not provided for airport employees, as in US Airways,
Inc., and Claimant was not entering or exiting her workplace within a reasonable
time before or after her shift, as in Stewart. The Board appropriately distinguished
US Airways, Inc. and Stewart. Claimant’s presence at the train station was not
required by the nature of her employment. She could have travelled in any number
of ways to get to her assigned workplace in Chicago. The Board did not err in
holding that Claimant was not injured on Employer’s “premises” under Section
301(c)(1) of the Act.
Conclusion
For the foregoing reasons, we conclude that Claimant did not sustain
an injury on Employer’s premises for purposes of Section 301(c)(1) of the Act, 77
P.S. §411(1). Accordingly, the adjudication of the Board is affirmed.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Barbara Wormley, :
Petitioner :
:
v. : No. 89 C.D. 2022
:
Air Wisconsin Airlines (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 22nd day of November, 2022, the adjudication of the
Workers’ Compensation Appeal Board dated January 14, 2022, in the above-
captioned matter is AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita