1912 Hoover House Rest. v. Workers' Comp. Appeal Bd., 309 C.D. 2014

• Decision Date: 10 November 2014
• Docket Number: No. 309 C.D. 2014,309 C.D. 2014
• Court: Pennsylvania Commonwealth Court
• Parties: 1912 HOOVER HOUSE RESTAURANT, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (SOVERNS), Respondent.

103 A.3d 441

1912 HOOVER HOUSE RESTAURANT, Petitioner

v.WORKERS' COMPENSATION APPEAL BOARD (SOVERNS), Respondent.

No. 309 C.D. 2014

Commonwealth Court of Pennsylvania.

Submitted Aug. 29, 2014.

Decided Nov. 10, 2014.

Eugene N. McHugh, Harrisburg, for petitioner.

Bradley R. Bolinger, Chambersburg, for respondent.

BEFORE: RENÉE COHN JUBELIRER, Judge, and ROBERT SIMPSON, Judge, and JAMES GARDNER COLINS, Senior Judge.

Opinion

OPINION BY Judge COHN JUBELIRER.

1912 Hoover House Restaurant (Employer) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) Decision granting Sean Soverns's (Claimant) Claim Petition. The WCJ concluded, in relevant part, that Claimant was injured during the course and scope of his employment when he sustained facial lacerations

and permanent scarring when he was bitten by a co-worker's dog. On appeal, Employer argues that: (1) the WCJ's Decision is not reasoned; (2) the WCJ's findings of fact do not support the conclusion that Claimant was in the course and scope of his employment at the time he was injured; and (3) the WCJ erred by making this conclusion. Discerning no error, we affirm.

Claimant was primarily employed in the paint department of a manufacturer averaging 60–65 hours per week. (WCJ 2010 Decision, Findings of Fact (2010 FOF) ¶ 2.) Claimant was also employed part-time by Employer as a line cook one evening each week. (2010 FOF ¶ 1.) Claimant filed a Claim Petition on April 19, 2010 alleging that, as a result of being bitten by a co-worker's dog on March 16, 2010, he sustained facial lacerations

in the course of his employment. (Claim Petition at 1, R.R. at 23a.) Claimant sought payment for disfigurement, medical bills, and counsel fees.

(Claim Petition at 2, R.R. at 24a.) Employer timely filed an answer denying that Claimant's injuries were sustained in the course and scope of his employment. (Employer's Answer to Claim Petition, R.R. at 26a–27a.) Hearings before the WCJ ensued.

In support of the Claim Petition, Claimant presented his own testimony and submitted photographs, medical records, and unpaid medical bills into the record. In opposition, Employer presented the testimony of its owner, Barbara Persun (Owner). Based on the evidence presented, the WCJ found as follows.

When Claimant arrived at work on March 16, 2010, he got the line going and reviewed the specials with the chef. (2010 FOF ¶ 3.) One of Claimant's coworkers stated that her father would be stopping by with her dog. (2010 FOF ¶ 3.) Claimant went outside to have a cigarette after the dog had arrived at the restaurant. (2010 FOF ¶ 4.) While on his smoke break, Claimant had a conversation with the co-worker's father. (2010 FOF ¶ 4.) Claimant petted the dog and let the dog lick his face. (2010 FOF ¶ 4.) “When ... [C]laimant went to stand up, the dog growled and bit” Claimant's lower lip. (2010 FOF ¶ 4.)

Claimant was permitted to take smoke breaks “while he was working for [Employer].” (2010 FOF ¶ 6.) At the time of the incident, Claimant “was in an approved area where everybody smoked.” (2010 FOF ¶ 5.) Employer “had supplied an ashtray tower for the employees' use.” (2010 FOF ¶ 5.) Claimant was “approximately three [feet] away from the ashtray tower,” and “was actually smoking a cigarette when he was bitten by the dog.” (2010 FOF ¶¶ 5, 8.) Claimant testified that, “at the time he was bitten, there was no written or oral rule from [Employer] that prevented any employee from bringing a dog to the break area.” (2010 FOF ¶ 7.) As a result of the dog bite, “[C]laimant has a permanent visible scar on the lower right ... part of his lower lip,” and a second “permanent visible scar on the center part of his chin directly below his lower lip.” (2010 FOF ¶ 11.) In addition, “[C]laimant missed six days of work” and “incurred numerous unpaid medical bills.” (2010 FOF ¶ 13.)

Owner testified, in relevant part, that she was not present when Claimant's injury occurred. (2010 FOF ¶ 15.) Owner also testified that “employees are allowed two smoking breaks per shift,” and that “[t]here is no exact amount of time that employees are allowed to be outside for their break.” (2010 FOF ¶ 17.) In addition, Owner admitted that there was no employee handbook or posted list of rules notifying the employees what is required or expected of them. (2010 FOF ¶ 18.)

On December 2, 2010, the WCJ issued a Decision and Order granting the Claim Petition. The WCJ concluded that Claimant met his burden of proof and sufficiently established that he sustained an injury to his face on March 16, 2010, while in the course and scope of his employment, “resulting in serious, permanent, and unsightly disfigurement.” (WCJ 2010 Decision, Conclusions of Law (2010 COL) ¶¶ 2–3.) Accordingly, the WCJ awarded Claimant 63 weeks of workers' compensation (WC) “benefits based on the permanent scarring of his lower lip and chin.” (2010 COL ¶ 5.) In calculating Claimant's Average Weekly Wage (AWW), the WCJ accepted Employer's evidence that Claimant's AWW was $31 per week and Claimant's testimony that he earned $900 per week from his concurrent primary employment at the time of his injury. (2010 FOF ¶¶ 1–2; 2010 COL ¶ 4.) Therefore, the WCJ determined that Claimant's AWW was $931.00. (2010 COL ¶ 4.)

Employer filed a timely appeal to the Board. Employer argued that the WCJ erred in determining that Claimant was in the course and scope of his employment at the time of the injury. Employer also argued that the WCJ's disfigurement award exceeded the typical range for such injuries, and that there was not substantial evidence to base Claimant's AWW on concurrent employment. Upon review, the Board affirmed the WCJ's Order that Claimant was in the course and scope of his employment at the time of the injury and the WCJ's award of 63 weeks of WC benefits. (Board 2012 Op. at 5–8.) However, the Board concluded that the WCJ's findings regarding Claimant's AWW were not supported by substantial evidence. (Board 2012 Op. at 9–10.) Accordingly, the Board remanded the matter to the WCJ for the limited purpose of establishing and recalculating Claimant's AWW. (Board 2012 Op. at 10.)

On remand, the WCJ recalculated Claimant's AWW and restated the conclusion that Claimant had established that his March 16, 2010 injury was sustained in the course and scope of his employment. Accordingly, the WCJ again granted Claimant's Claim Petition by Decision and Order circulated November 9, 2012. (WCJ 2012 Remand Decision). Employer appealed the WCJ 2012 Remand Decision to the Board. The sole issue presented on appeal to the Board by Employer was whether Claimant was in the course and scope of his employment when he suffered the March 16, 2010 injury. Because the Board had already addressed and affirmed the WCJ on this issue, the Board affirmed the WCJ 2012 Remand Decision. (Board 2014 Op. at 3.) Employer now petitions this Court for review.¹

On appeal, Employer raises three issues: (1) whether the WCJ's findings of fact are so incomplete and limited that the WCJ's 2010 Decision is not reasoned; (2) whether the WCJ's findings support the conclusion that Claimant's actions were merely a temporary departure and furthered Employer's business interests; and (3) whether the WCJ's conclusion that Claimant was injured in the course and scope of his employment is contrary to well established case law.

In support of the first issue, Employer asserts that the WCJ's 2010 Decision is not reasoned because the findings do not incorporate all the evidence admitted into the record. Employer asserts that, pursuant to Section 422(a) of the Workers' Compensation Act (Act),² the WCJ is required to adequately explain the reasons for rejecting or discrediting competent evidence. Employer contends that the WCJ's 2010 Decision does not satisfy Section 422(a) because the WCJ failed: (1) to consider the “undisputed evidence and admissions by ... Claimant that he left the premises of the business without specific permission to pet the dog and the dog bite occurred in a public alley and parking lot area off the business premises;” and (2) to make a finding with respect to Claimant's admission “that he was warned not to pet the dog because the dog snapped at people.” (Employer's Br. at 12–13.)

Under Section 422(a) of the Act, the WCJ must issue “a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decision ....” 77 P.S. § 834. However, “Section 422(a) does not require the WCJ to discuss all of the evidence presented.” Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Company), 893 A.2d 191, 194 n. 4 (Pa.Cmwlth.2006). “The WCJ is only required to make the findings necessary to resolve the issues raised by the evidence and relevant to the decision.” Id. Moreover, “[a] reasoned decision does not require the WCJ to give a line-by-line analysis of each statement by each witness, explaining how a particular statement affected the ultimate decision.” Acme Markets, Inc. v. Workers' Compensation Appeal Board (Brown), 890 A.2d 21, 26 (Pa.Cmwlth.2006).

We conclude, based on our review of the evidence presented and the WCJ's findings based on that evidence, that the WCJ's 2010 Decision is reasoned. By asserting that the WCJ should have made certain findings, Employer is essentially arguing that the WCJ should have weighed the evidence in its favor and found that Claimant was not in the course and scope of his employment because he was not on Employer's premises at the time Claimant was bitten by the dog. However, “[t]he WCJ, as fact finder, has exclusive province over questions of credibility and a reviewing court is not to reweigh the evidence or review the credibility of witnesses.” City of Philadelphia v. Workers' Compensation Appeal Board (Reed), 785 A.2d 1065, 1068 (Pa.Cmwlth.2001). Here, the WCJ determined that Employer's premises...