Wormley v. Air Wis. Airlines, 89 C.D. 2022

CourtCommonwealth Court of Pennsylvania
Writing for the CourtMARY HANNAH LEAVITT, PRESIDENT JUDGE EMERITA
PartiesBarbara Wormley, Petitioner v. Air Wisconsin Airlines (Workers' Compensation Appeal Board), Respondent
Docket Number89 C.D. 2022
Decision Date22 November 2022

Barbara Wormley, Petitioner
v.

Air Wisconsin Airlines (Workers' Compensation Appeal Board), Respondent

No. 89 C.D. 2022

Commonwealth Court of Pennsylvania

November 22, 2022


OPINION NOT REPORTED

Submitted: August 12, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge

MEMORANDUM OPINION

MARY HANNAH LEAVITT, PRESIDENT JUDGE EMERITA

Barbara Wormley (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that denied her claim petition. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant was not acting in the course and scope of her employment when she sustained an injury traveling to work and in uniform. Claimant asserts that the Board erred because her travel by train was a reasonable way for her to access her employer's premises. We affirm the Board.

Background

Claimant works as a flight attendant for Air Wisconsin Airlines (Employer). On December 5, 2019, Claimant fell on a Southeastern Pennsylvania Transportation Authority (SEPTA) train platform attempting to get on a train on her way to work. She sustained injuries to her left shoulder, left leg, left hip, upper back, lower back, and right knee.

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On January 8, 2020, Claimant filed a claim petition alleging a work injury. The claim petition was assigned to a WCJ.

In support of her claim petition, Claimant presented her testimony by deposition and before the WCJ via video. Claimant testified that she has worked as a flight attendant for Employer for approximately 13 years. For 12 of those years, she was based out of Philadelphia International Airport. In early 2019, Claimant's hub changed from Philadelphia to Chicago O'Hare. She had the option to relocate to Chicago, but she chose to stay in Philadelphia. Consequently, Claimant had to commute from Philadelphia to Chicago.

Claimant testified that she would book a flight from Philadelphia to Chicago, but if the flights were full, she would fly standby. Her preference was to fly to Chicago the day before she was scheduled to work and get a hotel or sleep in a chair at the airport. Claimant was not paid for her time commuting.

Claimant testified that she lives in northeast Philadelphia. To get to the Philadelphia Airport, she usually boarded the SEPTA train at Forest Hills, which was approximately two blocks from her house, and took the train to Jefferson Station in Center City Philadelphia. From there, she would board another train to the airport.

Claimant testified that she was scheduled to work in Chicago on December 6, 2019. Because she could not find any flights departing Philadelphia to Chicago early on December 6, 2019, she decided to fly to Chicago the day before, on a 3:20 p.m. or 4:56 p.m. flight.

On December 5, 2019, Claimant had a doctor's appointment at Jefferson Hospital and then visited her niece, who was a patient at the hospital. From the hospital, she walked to Jefferson Station to get a train to the airport for the 3:20 p.m. flight to Chicago. Claimant was wearing her uniform because "[it is] just much

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easier to get through [security at the airport]." Claimant Deposition at 31; Reproduced Record at 142a (R.R.___). Moving out of the way of another passenger, Claimant stepped into the gap between the train and the platform and fell. Claimant testified that she "screamed" because "[t]he pain was excruciating" in her shoulder, arm, lower back, thigh, and buttock. Claimant Deposition at 33; R.R. 144a. Claimant was taken to the emergency room at Jefferson Hospital for treatment. Afterwards, she had to use a walker to get around her house for three weeks.

Claimant testified that on December 11, 2019, she saw Dr. Simon Newsom, who referred her to Dr. Okon, a sports medicine doctor. Dr. Okon advised Claimant that the injury had to run its course. Claimant also treated with Dr. Scott Pello, who prescribed Gabapetin and Lidocaine for Claimant's pain.

Claimant testified that she has only achieved partial relief. As a result of the injury to her left shoulder, her left arm will not raise up all the way. She cannot reach her right arm to her back, and she has pain in her shoulder down into her right arm. She also has soreness in her left elbow. Her low back pain leaves her unable to sit or stand long, and she cannot walk more than three blocks. Claimant testified that she does not sleep and cannot lift anything. As a consequence, Claimant does not believe she can return to her job as a flight attendant. She began receiving retirement social security as of November 18, 2018.

On cross-examination, Claimant stated that Employer did not reimburse her for hotels or flights, but it has agreements with other airlines for flight attendants. This allows her to fly out of different airports, other than Philadelphia. Claimant agreed that it is up to her to figure out the logistics of getting to Chicago, and Employer does not assist her with that. Further, Employer does not reimburse

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Claimant for any expenses related to her train or cab fares to the airport. Claimant testified that she could have driven to Chicago to go to work, had she so desired.

Claimant acknowledged that her job as a flight attendant never changed. Rather, her commute changed. Claimant acknowledged that she could have traveled to Chicago without wearing her uniform, but she chose to wear it because "[it is] much easier to get through [the Transportation Security Administration's] known crew member [screening], which is where crew members check in through." Notes of Testimony, 11/16/2020, at 44 (N.T.___); R.R. 100a.

Robert Frish, Chief Operating Officer, testified for Employer. He explained that Employer provides service for other airlines by contract. When Employer's contract work for American Airlines ended, Employer began providing service to United Airlines, which required Employer to change its hub and crew locations. Employer closed its bases in Philadelphia and Norfolk, Virginia, and opened bases in Milwaukee, Chicago O'Hare, Washington Dulles, and Columbia, South Carolina.

Frish testified that the collective bargaining agreement allows crew members to be reimbursed for moving expenses. Had Claimant decided to relocate to Chicago, she would have been reimbursed for the expense of that move. Since she decided not to relocate, "no arrangements [were] made." N.T. 17; R.R. 73a. In other words, it was up to Claimant to get herself to work. Frish testified that "[i]t does not matter to us how [crew members] get [to their hub] as long as [they are] at work when scheduled[.]" N.T. 24; R.R. 80a.

Frish explained that flight attendants report to duty 45 minutes prior to their first scheduled flight for the day. On December 5, 2019, the day of Claimant's injury, she was not on the clock. Frish stated that many flight attendants and pilots

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prefer to travel in uniform to bypass security protocol and to access certain parts of the airport.

On cross-examination, Frish stated that Employer does not "control where people live." N.T. 28; R.R. 84a. Employer does not mandate that crew members live near their base airport. Commuting is accepted in the industry. Frish did not agree that commuting was at "no cost" to Claimant, explaining that it depended on how Claimant traveled. Id. He explained that if Claimant bought a ticket on American Airlines, she would pay the price of the ticket. If she used a cabin reciprocal jump seat agreement, there was a cost. Likewise, if she used "non-[reciprocal] travel benefits," e.g., to upgrade to first class, there was an added cost. Id.

With regard to the wearing of the uniform, Frish testified that flight attendants often wear their uniform for personal travel because it makes it easier to move around the airport. Wearing the uniform has nothing to do with commuting, and Employer does not require its employees to wear uniforms when commuting.

WCJ Decision and...

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