Factual Background of Case
In June 2007, the Oakmont Country Club, near Pittsburgh, hosted the annual U.S. Open Golf Tournament. Employer provided certain services at this U.S. Open, and hired Claimant to work there. Claimant's assigned job duty was to watch an open tent with a Lexus vehicle on display inside. His shift was from 7 p.m. on June 9 to 7 a.m. on June 10.
Claimant filed a Workers' Compensation Claim Petition for a June 10, 2007 injury, which was opposed by employer, based on the position that Claimant was outside the course of his employment when he was injured.
Claimant's testimony differed significantly in comparison with that offered by various employer representatives.
Claimant testified that around 6 a.m. on June 10, he heard sounds and saw lights. Approximately forty minutes later, he said he decided to check the surrounding areas where he had previously seen the lights and heard the noises. He left the Lexus Tent. While away from the Lexus Tent, but still on the Oakmont Country Club grounds, and before his shift ended, Claimant incurred head and back injuries. He indicated that around 6:40 a.m., he walked to a grandstand with bleachers to get a better look around the area, when something let loose under him on the bleachers, causing him to fall. He said he had decided to investigate the area around the Lexus Tent because he had heard some noises earlier. He could not approximate the distance between the Lexus Tent and the grandstand. He described the bleachers as possibly being as little as twenty feet out of his way and less than one hundred yards from the Lexus Tent. He was unable to estimate the distance or direction he was walking when he came upon the bleachers, other than to say they were within the vicinity of the Lexus Tent. Claimant was unable to state whether said bleachers were in the direction of the golf course or the front gate, from the Lexus Tent, but he maintained his walk was in a line between his station and leaving for the end of the day.
Claimant testified that after he fell, he walked around in search of help because he was bleeding and in pain. He did not know where he walked or how long he walked, but he did not feel he walked far or walked for long.
When Claimant testified at a later hearing, he identified a structure he referred to as grandstands and which employer referenced as "Corporate Tents," as the structure he was on when he fell. He explained he was able to later ascertain the location of his fall because he and his attorney went back to the site with a map, a copy of which was entered into evidence. The Court noted its belief that the "Corporate Tents" were not in the direction of where Claimant would have exited the golf course at the end of his shift, as they were located along the third hole of the golf course. The Corporate Tents are on the opposite side of the Lexus Tent from where Claimant was found (see below).
Claimant testified he had been hired as a security guard, and his job was to ensure that the Lexus vehicle and its surroundings were secure. He disputed that his job was to sit inside the Lexus Tent and contact someone by using a security radio if he felt the Lexus vehicle was in danger of being harmed or if an unauthorized person entered the Lexus Tent. Claimant also testified he was never informed that he was supposed to stay in the Lexus Tent, and that he was not issued a security radio.
Claimant testified he was aware that his treatment records indicated he had informed hospital personnel that he had been drinking alcohol during the night of his injury, and that he consumed alcohol on a daily basis. When questioned, Claimant could not testify to any treatment he received for alcohol withdrawal, or for his lower back, during his ten-day hospital admission (although this type of treatment was documented by the medical records). He denied drinking on the evening in question, and denied having a history of daily alcohol use; instead, he contended that this history contained in the hospital records was incorrect.
Several witnesses testified from the employer. Mr. Clayton, the employer's owner, testified Claimant was hired as an event ambassador, a stationary position with "observe-and-report" responsibilities, meaning the individual in this position is to report any incidents so that licensed security personnel or law enforcement could respond appropriately. Event ambassadors are issued security radios. Mr. Clayton also stated that the closest bleachers to the Lexus Tent were five or six hundred feet away on the other side of a fence, and that there were absolutely no bleachers in the vicinity of the Lexus Tent. When he heard that an individual had been injured on the bleachers, he assumed this did not involve one of his employees because they would have no reason to be around the bleachers.
Mr. Dennison, employer's Managing Director of Special Events, testified he was in charge of hiring and training employees for special events, such as the U.S. Open. He said the event ambassador position is traditionally a non-security job, which may involve checking credentials or controlling interior access within the perimeter of the facility. Generally, the event ambassador is at an interior fixed-post location, responsible for a specified limited area, and not to be out patrolling the grounds. Mr. Dennison testified that the employer hired Claimant as an event ambassador, and that he had conducted Claimant's training himself. Mr. Dennison said that he and Mr. Johnson had informed Claimant that his post was inside the Lexus Tent, he was to remain there during his shift, and that he was to report any unusual activity; Claimant was to check the credentials of anyone who wanted to enter the Lexus Tent. Claimant was informed that if he needed lunch or to take a break, he should call the overnight supervisor on the radio, and someone would provide the necessary relief for that post. Mr. Dennison disagreed that Claimant was instructed to patrol the surrounding area and report any suspicious activities. In fact, Mr. Dennison testified that such conduct would be detrimental to the employer, because there would then be nobody inside the Lexus Tent to ensure the proper coverage there, as Claimant was not supposed to leave the Lexus Tent before 7 a.m. for any reason, unless relieved by another person. Mr. Dennison confirmed that he gave Claimant a security radio the first night he worked at the Lexus Tent. He said that after Claimant left the grounds on June 10, he found Claimant's radio inside the Lexus Tent. Mr. Dennison also testified there were no bleachers in the area from the Lexus Tent through the main entrance and back to the point where Claimant was found. The closest bleachers to the Lexus Tent were near the second hole green (as Mr. Clayton had testified), on the other side of a fence.
Mr. Johnson, employer's night supervisor for the U.S. Open, also testified that Claimant was hired as an event ambassador, a non-security position. He considered the duties of an event ambassador to stay in the Lexus Tent, to observe persons coming into the tent and check if they had proper credentials, and to make sure nobody disrupted the car on display or other materials inside the tent. He said all event ambassadors on the night shift were issued radios. Event ambassadors attended training, where their job duties were explained, as well as how to operate the radio. The radios were to be used by the event ambassadors in the event of an emergency, to notify supervisory personnel or the command center, and to request a break or additional equipment. He also explained that every night beginning at 9 p.m., the employer would perform periodic radio checks to every post position to verify the radios were working and to confirm that the event ambassadors were awake and performing their jobs. He said he and Mr. Dennison accompanied Claimant to the Lexus Tent on the first evening Claimant worked there, that they had made it clear to Claimant that his only job was to remain within the Lexus Tent, and that he was not to leave the tent because the employer had security officers in the surrounding areas. Mr. Johnson indicated it would be detrimental to employer if Claimant left the tent, because the employer had contracted to supply an event ambassador twenty-four hours daily within the Lexus Tent. During the shift at issue, Mr. Johnson had radio contact with Claimant. In addition to such contact during the periodic radio checks, Claimant had radioed twice during the shift to report noises and lights. Mr. Johnson further indicated that the nearest bleachers to the Lexus Tent were at the second tee, roughly fifty to seventy yards away, and that there were no bleachers in the general area of the Lexus Tent or between that tent and the check-out tent. He said the grandstands were located along a fence near the second and third holes.
Mr. Storer, employer's Director of Operations for Special Events, provided similar testimony in regard to the event ambassador's duties. He was present when Claimant was trained, and he was the first person to respond to Claimant in regard to the injury. On the morning of the incident at issue, Mr. Storer received a report that one of his employees was bleeding and walking around near the corporate gate. He arrived there around 7 a.m. to find Claimant bleeding from his head. Claimant was unable to advise him what had happened. Mr. Storer also stated that there were no bleachers in the area of or within close proximity to the Lexus Tent, saying that the closest ones would be near the second tee on the other side of a fence. He indicated no bleachers were near the route that one would take from the Lexus Tent to the check-out tent.
Employer's testimony established that Claimant was found near the bus loop, headed in the direction of where he was to report when his shift was over, and presumably, that Claimant had left through the main entrance.
Employer's witnesses made it clear that Claimant was to remain inside the Lexus Tent during his shift, unless relieved by the employer.
The Workers' Compensation Judge (WCJ) bifurcated the proceedings to initially address the limited issue of whether Claimant was within the course of his employment at the time of the injury. The WCJ concluded that:
The WCJ ultimately held that Claimant had not met the burden of proof necessary to establish he was within the scope of his employment at the time of his fall injury. Furthermore, at the time of the injury, he was in violation of a positive work order, which mandated a forfeiture of any entitlement to workers' compensation benefits. The WCJ therefore denied the Claim Petition.
Claimant appealed to the Workers' Compensation Appeal Board (WCAB), which affirmed the WCJ's decision. Claimant then appealed to the Commonwealth Court.
The Commonwealth Court's Holding
The Commonwealth Court first cited Section 301(c)(1) of the Pennsylvania Workers' Compensation Act, which indicates that a compensable injury must arise in the course of one's employment and be related thereto, and:
...shall include all other 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.
The Court then reviewed the evidentiary record and transcribed testimony. The Court agreed with the WCJ's observations and impressions about Claimant's testimony. The Court affirmed the WCJ's credibility determinations, based upon substantial evidence. It was further held that the bleachers where the injury apparently occurred were neither near nor in the area of the Lexus Tent, based upon credited testimony and maps. Besides, Claimant's job was supposed to be restricted to the inside of the Lexus Tent.
The Court next examined whether the injury was sustained while Claimant was engaged in the furtherance of employer's business or affairs, or while he was in the course of his employment. In other words, was Claimant injured while carrying out the job activities he was hired to perform? Claimant was not injured while stationed inside the Lexus Tent. Instead, he left his specific worksite and apparently wandered around the golf course, abandoning his position. As his job was to be performed specifically at a fixed post, his presence away from that position, and significantly beyond the immediate area of the Lexus Tent, was held not to be in furtherance of his employer's business. Therefore, the Court agreed that Claimant was not within the course of his employment at the time he was injured, and that under these circumstances, it was proper to deny benefits.
The Court also held there was no need to then even address whether Claimant was violating a direct order when he was injured, which would have constituted yet another reason why he would not be considered within the course of his employment. In other words, there was no need to further consider whether the injury was caused by a violation of a work order of which Claimant was aware, and which involved an activity unconnected to employee's specific work duties. (The Court did note that to establish violation of a work order would be an affirmative defense on employer's part.)
At any rate, since Claimant was not authorized to be away from the Lexus Tent, and his specific job duties did not entail him being in the bleachers area, it was held that Claimant's injury at the bleachers was not incurred while in the course of his employment, and was therefore non-compensable.
Using the guidance that the Commonwealth Court has provided above, for any reported injury, ascertain and then analyze the circumstances under which it was incurred to determine if the Claimant was legitimately undertaking appropriate job activities for his position, at the specific location where he was supposed to be working, in order to decide, as a threshold issue, if said injury genuinely qualifies to be compensable.
If you would like a copy of Lewis v. WCAB (Andy Frain Services, Inc.), issued by the Commonwealth Court of Pennsylvania on September 22, 2011, or if you are interested in discussing this case and its implications, please do not hesitate to contact any of the members of the Firm's Workers' Compensation Group.