Opinion
No. 102 C.D. 2012
10-03-2012
Salt Painting, Inc./State Workers Insurance Fund, Petitioner v. Workers' Compensation Appeal Board (Kellogg), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Employer Salt Painting, Inc., petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) to grant the claim petition of Claimant Richard Kellogg. Specifically, the Board agreed that Claimant did not abandon his employment when he defended himself in a pre-work injury fist fight with his supervisor. In addition, it agreed that the claim petition was not barred under the "personal animus" exception to compensability, which excludes from coverage "an injury caused by an act of a third person intended to injure the employe because of reasons personal to [the third person], and not directed against him as an employe or because of his employment . . . ." Section 301(c)(1) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1). We affirm.
According to the WCJ's findings, Employer hired Claimant to work as an industrial painter in May 2008. In April 2009, Claimant and five co-workers were working at a job at Armstrong World Industries in Beaver Falls, Pennsylvania, where Employer at its own cost had arranged for them to stay at a hotel near the job site. On April 29th, Claimant and two co-workers planned to go out after work for drinks with their supervisor, Tony Johnson. When they told Johnson that they had changed their minds, Johnson went out alone and returned intoxicated at 2:30 a.m. on April 30th.
Later that morning, Johnson arose late and was belligerent to Claimant and his co-workers on the way to the job site. In fact, when the crew stopped at the work-site security station to sign in, Johnson drove the company truck to the job site without waiting for Claimant, leaving him to walk there alone contrary to the established routine. When Johnson continued to behave badly, Claimant asked the other crew leader if he could join his crew. When Claimant advised Johnson that, if Johnson did not stop his behavior, he would switch painting crews, Johnson became angry and threatened Claimant. When Johnson asked Claimant to follow him, Claimant agreed, thinking that he meant to discuss the matter in private. Instead, he punched Claimant in the face and Claimant responded when it appeared that Johnson was not going to stop. After several minutes, Claimant walked away and went to the truck to get work supplies. While Claimant was attempting to remove items from the truck, Johnson approached him from behind and hit him in the head with a baseball bat. Claimant was unconscious for a period of time and the other supervisor took him to a local hospital where he underwent a CT scan and was taken by helicopter to Pittsburgh where he was hospitalized for eleven days.
After an investigation, Employer's president fired both Claimant and Johnson for violating company policy regarding rules of conduct. The president acknowledged that, although he had given Johnson over thirty written warnings for disciplinary problems during Johnson's twelve-year tenure, he had never fired him. The president also admitted that he had never issued Claimant a written reprimand prior to April 30th.
Johnson's other disciplinary problems included positive drug tests, misstating work hours on time sheets, driving company vehicles without a valid driver's license and misappropriating company assets with a fuel card. WCJ's November 16, 2010 Decision, Finding of Fact No. 2(a).
Claimant filed a claim petition, alleging that he sustained a fractured skull through the occipital bone with brain bruise and three subdural hematomas when Johnson assaulted him with a baseball bat. Claimant sought full disability from April 30th onwards and the payment of medical bills and counsel fees. The WCJ agreed that Claimant was totally disabled as of April 30th and that he was in the course of his employment when injured. Notably, she concluded that, "[a]lthough fighting is against company policy, the blow that caused the Claimant's injury occurred after [he] walked away from the fight and returned to the company van to get his work supplies and [Johnson] came up from behind and struck him with a baseball bat." WCJ's November 16, 2010 Decision, Finding of Fact No. 6(d). In addition, the WCJ rejected Employer's personal animus defense, finding as follows:
The parties agreed to bifurcate the issue of whether Claimant was in the course of employment at the time of injury. In January 2010, the WCJ issued an interlocutory decision deciding that issue in favor of Claimant. She incorporated those findings into her November 2010 decision.
Mr. Johnson may have been upset because the Claimant and the rest of the paint crew refused to go out with him the night before, but the altercation occurred after the Claimant stood up to Mr. Johnson and told him he didn't have to treat the crew belligerently and if he continued to do so they would work with the other paint crew. The altercation was not about the Claimant refusing to go out with Mr. Johnson on April 29, 2009.Id., Finding of Fact No. 1(d). Finally, because Employer had been very lax and inconsistent in disciplining employees for violating its rules of conduct, the WCJ rejected Employer's contention that it fired Claimant for good cause. The Board affirmed and Employer's timely appeal followed.
In a claim petition proceeding, the claimant bears the burden of establishing his right to compensation and all of the elements necessary to support an award of benefits, including proof that he sustained the injury in the course and scope of employment. Miller v. Workers' Comp. Appeal Bd. (Millard Refrigerated Servs. & Sentry Claims Serv.), 47 A.3d 206, 208 (Pa. Cmwlth. 2012). A key issue in ascertaining whether an employee was in the course of employment is whether he was injured while actually engaged in furtherance of the employer's business or affairs, whether on the employer's premises or elsewhere. Scher v. Workers' Comp. Appeal Bd. (City of Phila.), 740 A.2d 741, 749 (Pa. Cmwlth. 1999); Section 301(c)(1) of the Act. Whether an employee was acting in the course of employment at the time of injury is a question of law to be determined based on the WCJ's fact-findings. Id.
Moreover, there is a presumption that an employee is covered under the Act when he is injured on the work premises by the act of another employee. Helm v. Workmen's Comp. Appeal Bd. (U.S. Gypsum Co.), 591 A.2d 8, 10 (Pa. Cmwlth. 1991). An employer's burden to rebut that presumption is a heavy one. Wills Eye Hosp. v. Workmen's Comp. Appeal Bd. (DeWaele), 582 A.2d 39, 40 (Pa. Cmwlth. 1988). When the "personal animus" exception is at issue, the employer must prove that the third person intended to injure the employee for reasons personal to the assailant. LeDonne v. Workers' Comp. Appeal Bd. (Graciano Corp.), 936 A.2d 124, 129 (Pa. Cmwlth. 2007).
Employer argues that the WCJ erred in determining that Claimant was within the course of his employment at the time of injury, maintaining that the evidence only supports a finding that he had abandoned his employment when he agreed to fight his co-worker. In support, it cites Stevens v. Workmen's Compensation Appeal Board (Pennsylvania Gas & Water Co.), 556 A.2d 522 (Pa. Cmwlth. 1989), which also involved a traveling employee. In Stevens, we agreed that the claimant's actions were wholly foreign to the scope of his employment where, in response to the obscene gestures of two occupants in a car approximately 30-40 feet away, he walked to the car, ascertained that he did not recognize the occupants, opened the door, challenged and exchanged words with the driver and then removed his jacket in preparation for a fist-fight. We find Stevens to be inapposite to the present case.
Mindful of the fact that we are required to view the evidence in a light most favorable to Claimant as the party who prevailed before the WCJ, we agree that Claimant exhibited no abandonment of his employment when he abided by his supervisor's directive to follow him and then defended himself against Johnson's punches. As Claimant testified, the reason he complied was because he "thought that we were going to talk about what was going on and he was just going to like, man-to-man, talk to me about it instead of having a surrounding audience." September 2, 2009 Hearing, Notes of Testimony (N.T.) at 48; R.R. at 103a.
Waldemeer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003).
Moreover, even if there had been a momentary abandonment, Claimant clearly resumed furthering Employer's interests when he walked away from Johnson and attempted to return to his duties by retrieving work supplies from the back of the truck. It was at this point that Claimant sustained the injuries that disabled him. Accordingly, we reject Employer's argument that Claimant had abandoned his employment at the time of injury.
Employer next argues that the WCJ should have concluded that it established a personal animus defense, arguing that the finding that Johnson did not attack Claimant for personal reasons is not supported by substantial evidence. Specifically, Employer alleges that the WCJ ignored evidence that the fight stemmed from the failure of Claimant and his co-workers to go out with Johnson the previous night and not from Claimant's confrontation of Johnson regarding the supervisor's treatment of the crew. We reject Employer's position.
It was Employer's burden to establish a personal animus defense. LeDonne. The WCJ acknowledged that Johnson may have been upset with Claimant and his co-workers about refusing to go out the previous night, but found that this was not the reason for the altercation because it occurred after Claimant stood up to Johnson, told him not to treat the crew so belligerently and advised him that, if he continued to do so, they would work with the other paint crew. Employer is essentially asking this Court to re-weigh the testimony and arrive at a different result. It is well established that "the fact that one party to a proceeding may view testimony differently is not grounds for reversal if substantial evidence supports the lower tribunal's findings." Second Breath v. Workers' Comp. Appeal Bd. (Gurski), 799 A.2d 892, 899 (Pa. Cmwlth. 2002). In addition, determinations of credibility and evidentiary weight are within the WCJ's exclusive province and neither this Court nor the Board in their appellate capacities is entitled to reassess the credibility of witnesses or to reweigh their testimony. Ward v. Workers' Comp. Appeal Bd. (City of Phila.), 966 A.2d 1159 (Pa. Cmwlth. 2009). Accordingly, viewing the evidence in the light most favorable to Claimant as the party who prevailed before the WCJ, we agree that Employer failed to establish a personal animus defense.
Finally, Employer argues that the WCJ erred in determining that it did not terminate Claimant for good cause. Where an employer maintains that an employee's loss of earnings is due to a post-injury involuntary discharge, the employer bears the burden of proof. Virgo v. Workers' Comp. Appeal Bd. (County of Lehigh—Cedarbrook), 890 A.2d 13 (Pa. Cmwlth. 2005). Specifically, "[t]he employer must prove that suitable work was available or would have been available but for the circumstances which merit allocation of the consequences of the discharge to the claimant, such as the claimant's lack of good faith." Second Breath, 799 A.2d at 900 (footnote omitted). It is for the WCJ, as fact finder, to determine "whether a claimant was discharged for conduct evidencing lack of good faith." Id. (citation omitted).
At the August 2010 hearing, the WCJ expressed her reservations as to why Employer was persisting in presenting evidence as to whether it had terminated Claimant's employment for good cause in light of the fact that there was no evidence that Claimant was able to return to work and, therefore, work availability was not at issue. August 17, 2010 Hearing, N.T. at 65-67; R.R. at 392-94a. Having already determined that Claimant had established a compensable injury, she nonetheless permitted Employer to submit evidence concerning the limited issue of whether Claimant's loss of earnings and entitlement to indemnity benefits was related to the work injury or to his involuntary termination.
"As a general rule, where a workrelated disability is established, a postinjury involuntary discharge should be considered in connection with the separate determination of job availability rather than as dispositive of loss of earnings capacity." Second Breath, 799 A.2d at 900 n.7 [citing Stevens v. Workers' Comp. Appeal Bd. (Consol. Coal Co.), 563 Pa. 297, 310, 760 A.2d 369, 37677 (2000)]. Accordingly, we will address the just cause determination only very briefly.
As the Board noted when affirming the WCJ's determination that there was no indication of bad faith on the part of Claimant: "Claimant was subject to an attack by a co-worker." Board's December 28, 2011 Decision at 6. The WCJ found that Johnson assaulted Claimant from behind after Claimant walked away from the fist fight and while he was attempting to retrieve paint supplies in order to start work. Indeed, it was Claimant, a relatively new employee, who was attempting to further Employer's business when he was attacked by a supervisor and a long-time employee with a history of disciplinary problems. Accordingly, even though fighting could be cause for employment termination, we agree that there was no good cause for Claimant's post-injury involuntary termination.
For the above reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 3rd day of October, 2012, the order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge