Summary
In Workmen's Compensation Appeal Board v. Hickory Farms of Ohio, 367 A.2d 730 (Pa.Commw. 1976), this Court, citing Rybitski v. Lebowitz, 175 Pa. Super. 265, 267, 104 A.2d 161, 162 (1954), held that a work request by an employer can be made either expressly or impliedly.
Summary of this case from Philadelphia v. W.C.A.BOpinion
Argued December 6, 1976
December 27, 1976.
Workmen's compensation — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Course of employment — To and from work — Premises — Taking work home — Employe convenience.
1. An employe, injured off the premises of the employer while going to or from work, is not engaged in the furtherance of the business or affairs of his employer absent special circumstances, is not injured in the course of employment and is not entitled to benefits under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736. [31-2]
2. An employe sustaining an injury off the premises of the employer on her way home is not entitled to workmen's compensation benefits simply because the employe was then carrying work to be done at home, when such homework was being performed not by order of the employer, express or implied, but for the convenience of the employe. [32]
Argued December 6, 1976, before Judges KRAMER, WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 422 C.D. 1976, from the Order of the Workmen's Compensation Appeal Board in case of Miriam A. Gardner v. Hickory Farms of Ohio, No. A-70763.
Petition with the Department of Labor and Industry for workmen's compensation benefits. Benefits denied. Petitioner appealed to the Workmen's Compensation Appeal Board. Reversed and remanded. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Claim denied.
Joseph R. Thompson, with him Alan H. Ross, for appellant.
John C. Hambrook, with him James N. Diefenderfer, for appellee.
The narrow issue in this appeal from the Workmen's Compensation Appeal Board (Board) is whether the claimant was in the course of her employment under Section 301 of The Pennsylvania Workmen's Compensation Act when she was injured off the premises of her employer. We hold that she was not.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 411 (Supp. 1976).
What actually happened is not in dispute. The record shows that claimant was the manager of appellant's store, located in an enclosed shopping mall. In addition to her supervisory duties, claimant maintained employe work schedules and reports, upon which salaries were based.
Claimant was scheduled to have February 12, 1975, as a "day-off." She was called that morning, however, by her area supervisor and asked to take the place of another employe unable to work that day and to take February 13, 1975, as an alternate "day-off." After working for several hours, the claimant was informed by the mall's manager that the mall was closing early due to poor weather conditions and that she would have to close the store.
Claimant was required to mail certain employe pay records to her employer the next day. Although claimant would have to return to the store the next morning to complete the records, she desired to spend as little time at the store on her "day-off" as possible. She, therefore, took the records home with her to work on them that evening. While walking to her car, parked off the premises of her employer, claimant slipped and fell on a patch of ice, injuring herself.
The referee found that at the time of the fall the "[c]laimant was not engaged in the furtherance of Defendant's business or affairs . . ." and denied benefits. It is well settled that an employe injured while going to or returning from work is not engaged in the furtherance of the business or affairs of his employer absent special circumstances. Rabenstein v. State Workmen's Insurance Fund, 15 Pa. Commw. 160, 325 A.2d 681 (1974). The Board reversed the referee on the law, finding that special circumstances existed in the early closing of the mall, the necessity of mailing the reports the next day, and in February 13 being claimant's alternate "day-off."
Section 301 of The Workmen's Compensation Act requires that an employe injured off the premises of his employer be "engaged in the furtherance of the business or affairs of the employer" at the time of the injury to be considered "in the course of his employment."
While labeled a finding of fact, the referee's finding was properly considered by the Board to be a conclusion of law. Despite the mistake, there is no need to remand the case for further findings of fact, since no factual dispute exists.
Special circumstances, however, "must involve some clear-cut effort on the part of the employe, requested by the employer. . . ." Ristine v. Moore, 190 Pa. Super. 610, 615, 155 A.2d 456, 459 (1959). (Emphasis added.) Appellant never requested claimant, either expressly or impliedly, to work on the records at home. Rather, the work was taken home for the convenience of the employe who wanted to spend as little time at the store the next day as she could. This is not a sufficient basis for liability. "It must appear that the act in which the employe was engaged was done by order of the employer, express or implied, and not simply for the convenience of the employe." Rybitski v. Lebowitz, 175 Pa. Super. 265, 267, 104 A.2d 161, 162 (1954).
Also, in dicta, the Superior Court stated that "there can be no recovery where the employee is injured while voluntarily performing the service off the premises after working hours." Krchmar v. Oakland Beach Co., 155 Pa. Super. 430, 434, 38 A.2d 710, 712 (1944).
Accordingly, we will enter the following
ORDER
NOW, December 27, 1976, the order of the Workmen's Compensation Appeal Board, at Docket Number A-70763, filed February 10, 1976, is reversed and appellee's claim is hereby denied.