Posted On: August 22, 2013 by Glenn Neiman

Court Decides Injured Worker Abandoned Job at Time of Injury

Previously, we have discussed when the Commonwealth Court of Pennsylvania has addressed whether an employee was in the “scope and course” of his or her job at the time of the work injury. This issue has once again risen on appeal.

In the case of Trigon Holdings, Inc. v. Workers’ Compensation Appeal Board (Griffith), the injured worker was a supervisor in a machine shop. After he made sure his guys were set up, and the machines were all running properly, he told them he would be in another room for a few minutes. Five minutes later, his left thumb was caught in a machine while he was polishing a part for his child’s go-cart, severely injuring the thumb. As a result of the thumb injury, the injured worker was disabled from his job.

A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ). The injured worker, and witnesses he offered, testified that employees at the machine shop were permitted to work on personal things at the shop, and this was something done on a frequent basis. The general manager of the company testified that this action was never permitted and was totally unacceptable. In granting the Claim Petition, the WCJ found the testimony of the injured worker, and his witnesses, more credible than of the general manager. Specifically, the WCJ found that “a small temporary departure from work does not break the course of employment[,] and that an incident necessary to constitute a break in the course of employment must be of a pronounced character.’” On appeal, this decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

As we have previously addressed, findings of fact made by a WCJ cannot be disturbed on appeal (unless they are not based upon sufficient evidence), but whether an injury took place in the scope and course of employment is a question of law, which is fully reviewable by appellate courts.

Accepting the credibility determinations made by the WCJ, the Commonwealth Court of Pennsylvania still reversed the decision. The Court found that going into the other room to polish a part for his child’s go-cart was more than a simple “momentary departure from the work routine,” which would keep an employee within the scope and course of his job. Examples of departures like this for “personal comfort” would be getting a drink or using the bathroom. Instead, the Court called this departure “strongly marked and not trivial.” Indeed, the Court found that by his action, the injured worker “actively disengaged himself from his work responsibilities.” Since, as a result, “Claimant had abandoned his work responsibilities and was deliberately engaged in an activity wholly foreign thereto,” the Claim Petition should have been denied.

As we often see in these types of cases, the particular facts of the case, and how they are presented, are critical. Not only for how they are presented to the WCJ, but how they are placed into the evidentiary record (for the appeals process). Complexities like these in the Pennsylvania workers’ compensation system demonstrate why there is now a process for attorneys to be certified as specialists in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court. Each of the attorneys at Brilliant & Neiman LLC is certified under this process, providing assurance to our clients that no matter which of our attorneys handle a case, the representation being provided is always at this high level.