Gunter v. WCAB (City of Philadelphia)

• Decision Date: 16 June 2003
• Citation: 825 A.2d 1236,573 Pa. 386
• Parties: Rosalyn GUNTER, Appellant v. WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), Appellee.
• Court: Pennsylvania Supreme Court

825 A.2d 1236

573 Pa. 386

Rosalyn GUNTER, Appellant v. WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), Appellee.

Supreme Court of Pennsylvania.

Argued April 9, 2002.

Decided June 16, 2003.

Richard Raymond Budney, W. Michael Mulvey, Philadelphia, for Rosalyn Gunter, appellant. Martin Gerard Malloy, Philadelphia, Janet Marie Tarczy, Carlisle, for W.C.A.B., appellee.

Before: ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION OF THE COURT

JUSTICE CASTILLE.

This Court granted review in this case to address the effect of the payment of injured on duty ("IOD") benefits to a Philadelphia police officer, under authority of Philadelphia's Civil Service Regulation 32, upon the City/employer's right to oppose the police officer's later petition for workers' compensation benefits. The Commonwealth Court held that the payment of IOD benefits is not the workers' compensation equivalent of an employer issuing a notice of compensation payable ("NCP") and, for that reason, held that the City could properly challenge the petition for benefits. We affirm the Commonwealth Court's determination that the City properly could challenge the petition for benefits, albeit on different grounds than those specified by the Commonwealth Court.

The facts pertinent to the legal issue before this Court are undisputed. The Workers' Compensation Judge ("WCJ") found the following facts: Appellant was employed as a police officer with the City of Philadelphia. She was assigned as a Captain's Aide, which required her to perform clerical work, although she could at any time be assigned to patrol duty. On February 14, 1995, appellant left work at approximately 6:30 p.m., got into her own private automobile while still wearing her uniform shirt under an open leather jacket, and drove to her home. As appellant pulled her car into the driveway that she shared with the adjoining house, she noticed a black male enter the driveway, proceed to the gates behind her and begin tampering with the locks on the gates. Appellant remained in her car with the window halfway down. Becoming suspicious, she turned toward her pocketbook to retrieve her handgun. When she turned from her pocketbook, the man was at her car window.

Appellant asked the man what he was doing in her yard and told him to leave. The man responded that he wanted to ask appellant a question. Without warning, he punched appellant in the face and reached into the car and grabbed one handle of appellant's pocketbook. Appellant held onto the other handle of the pocketbook because her gun, which was not her service revolver but was a personal weapon, was still in the pocketbook. The car door opened, and appellant struggled with the man and fell to the ground. Appellant's pocketbook ripped, spilling the contents onto the ground. Her attacker scooped up some of the items from appellant's pocketbook and ran away. Appellant testified that she twice identified herself as a police officer during the assault; however, the investigation report of the incident, which contained information supplied by appellant, does not indicate that appellant so identified herself. As a result, the WCJ did not credit this particular testimony.

Appellant suffered an ankle fracture as a result of the assault, which required surgical repair and a four-day hospitalization. Appellant did not work from February 16, 1995 through August 8, 1995, when she returned to her job as a Captain's Aide. She was unable to perform patrol duty. Appellant's supervisor, Captain Lawrence Kirkland, approved IOD benefits for appellant, and she received those benefits from February 16, 1995 to June 16, 1995. At that point, the Police Safety Office determined that Capt. Kirkland did not have authority to approve IOD benefits and stopped the payments. From June 16, 1995 until appellant's return to work on August 8, 1995, Capt. Kirkland placed her on sick leave. Appellant then filed a workers' compensation claim and a penalty petition based upon the termination of her IOD benefits.

The City of Philadelphia opposed appellant's workers' compensation claim on the ground that she was not injured in the course and scope of her employment. The WCJ dismissed appellant's claim and penalty petitions, finding that appellant had failed to meet her burden of proving that she was acting in the course and scope of her employment when she was attacked outside her home after her shift was completed. The WCJ further found that appellant had failed to demonstrate that the City had violated the Workers' Compensation Act.

On appeal to the Workers' Compensation Appeal Board ("WCAB"), appellant argued that the WCJ's decision was not supported by the evidence because the WCJ had erred in disregarding the fact that appellant had previously received wages, in the form of IOD benefits, in lieu of workers' compensation. Appellant claimed that the City was estopped from denying liability for compensation benefits by virtue of its previous payment of IOD benefits to appellant. The WCAB affirmed the WCJ's decision, holding that IOD benefits are not the equivalent of workers' compensation benefits, but instead are "distinctly dissimilar benefits." WCAB Op. at 6. The WCAB found that the City's payment of IOD benefits was not in lieu of workers' compensation, but rather was payment for "an injury ostensibly compensable under [the City's] own internal rules and regulations governing the eligibility for and disbursement of IOD benefits." Id. at 6-7 (footnote omitted). Having determined that IOD benefits are not the equivalent of workers' compensation benefits, the WCAB found that the City had not admitted liability under the Act by making IOD payments and, therefore, the City was not barred or estopped from challenging appellant's entitlement to workers' compensation benefits. The WCAB further found that appellant was not performing her duties as a police officer at the time she was assaulted. Instead, she was found to be an unfortunate, off-duty victim of a crime. Thus, the WCAB held that appellant was not entitled to workers' compensation benefits.

Appellant further appealed to the Commonwealth Court, contending that the WCAB erred in holding that the City did not admit liability under the Act by paying IOD benefits. Appellant noted that, under the Act, an employer who either pays compensation to an employee or issues a notice of compensation payable ("NCP") is generally estopped from contesting liability for the injury. Appellant further noted that Commonwealth Court precedent had equated the Philadelphia Civil Service Regulation under which IOD benefits are paid to equivalent compensation paid pursuant to an NCP. Accordingly, appellant argued that the payment of IOD benefits should be considered the equivalent of payments pursuant to an NCP for purposes of determining an employer's liability under the Act.

The Commonwealth Court affirmed the WCAB in a published opinion. Gunter v. Workers' Compensation Appeal Board (City of Philadelphia), 771 A.2d 865 (Pa. Cmwlth.2001). The court held that the standard of proof for the award of IOD benefits differs from the "in the course of employment" standard applicable to an award of workers' compensation benefits; therefore, payment of IOD benefits is not the equivalent of the issuance of an NCP. Thus, the Commonwealth Court found that the City's initial payment of IOD benefits to appellant did not preclude the City from later opposing appellant's workers' compensation claim and arguing to the WCJ that appellant's injuries were not work-related.

This Court's scope of review in workers' compensation matters is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of a Commonwealth agency was not followed, and whether the WCJ's findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704; Udvari v. Workmen's Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 322, 705 A.2d 1290, 1291 (1997). The WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight; the WCJ's decision, however, must be based on substantial evidence. Thompson v. Workers' Compensation Appeal Board (USF&G and Craig Welding Equipment Rental), 566 Pa.420, 781 A.2d 1146, 1150 (2001) (citing LTV Steel v. Workers' Compensation Appeal Board (Mozena), 562 Pa. 205, 754 A.2d 666, 676 (2000) and Bethenergy Mines v. Workmen's Compensation Appeal Board (Sebro), 132 Pa. Cmwlth.288, 572 A.2d 843, 844-45 (1990)).

Here, the facts are for the most part undisputed, and no party has alleged any constitutional violation or that an agency practice or procedure was not followed. Therefore, the sole issue is whether the lower courts committed an error of law in finding that the City's initial payment of IOD benefits did not preclude or estop the City from later contesting appellant's claim for workers' compensation benefits. As with all questions of law, our review is plenary. See Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (2001) (citation omitted); Thompson, 566 Pa. 420, 781 A.2d 1146, 1150 (2001) (citing Universal Am-Can, Ltd. v. Workers' Compensation Appeal Board (Minteer), 563 Pa.480, 762 A.2d 328, 331 n.2 (2000)).

Philadelphia Civil Service Regulation 32.0231 sets forth the criteria for an award of IOD benefits:¹

Disability Salary for Police Officer Injured on Duty. Notwithstanding any other provisions of these regulations, a Police Officer who is injured on duty as (1) an immediate result of the violent conduct of a third party that was directed towards the officer or a member of the public, or (2) an immediate result of performing other heroic action in an emergency situation in the line of duty, shall receive IOD pay at 100% of the officer's pre-injury base pay, including longevity. This regulation shall not cover injuries resulting from vehicular accidents in which

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