IN THE COMMONWEALTH COURT OF PENNSYLVANIA
BC Food Market, :
: No. 2100 C.D. 2015
Petitioner : Argued: October 17, 2016
:
v. :
:
Workers' Compensation Appeal :
Board (Shah Mahar-Ullah and :
Uninsured Employer Guaranty Fund), :
:
Respondents :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 31, 2017
BC Food Market (Employer) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board), which affirmed the decision of a
workers’ compensation judge (WCJ) awarding benefits to Shah-Mahar-Ullah
(Claimant).1 We affirm.
On May 28, 2008, shortly after closing Employer’s store, Claimant
was sitting in his supervisor’s car, which was parked outside Employer’s business,
1
The order appealed from was rendered by the Board on February 27, 2014, and made
final by the Board’s order of October 8, 2015. See Shuster v. Workers’ Compensation Appeal
Board (Pennsylvania Human Relations Commission), 745 A.2d 1282, 1287 (Pa. Cmwlth. 2000)
(holding that when the Board remands a case to a workers’ compensation judge and a new
decision is issued, a party must follow normal procedure and appeal to the Board before seeking
review from this Court).
and was shot by unknown assailants. Claimant filed claim petitions against
Employer, which is uninsured, and the Uninsured Employer Guaranty Fund
(UEGF),2 alleging that he was totally disabled as a result of a work-related injury.
Employer responded that Claimant was not in the course and scope of his
employment when he was injured and raised the affirmative defense of personal
animus.3 After the defendants filed answers, the parties requested that the matter
be bifurcated to first address the issue of whether Claimant was in the course of his
employment at the time of his injury.
Claimant and Employer’s co-owner, Mohammed Rahman, testified by
way of deposition. The WCJ summarized Claimant’s testimony as follows.
Claimant, who was born in Bangladesh, first worked for Rahman in 2003 as a
cashier at Enterprise Gas Station and subsequently became a cashier and manager
with Employer. Claimant’s duties included operating the cash register, paying for
deliveries with company checks, and supervising another employee, Mohammed
Mojalm Hussein. Claimant worked from 1:00 p.m. to 11:00 p.m., six days a week,
for $8.00 an hour. He was paid approximately $1,200.00 in cash every two weeks
regardless of how many hours he actually worked. WCJ’s Findings of Fact, June
30, 2010, (FF) No. 1.
2
UEGF is a separate fund in the state treasury, established in Section 1602 of the
Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act
of November 9, 2006, P.L. 1362, 77 P.S. §2702, for the exclusive purpose of paying workers’
compensation benefits due to claimants and their dependents where the employer liable for the
payments was not insured at the time of the work injury.
3
An injury “caused by an act of a third person intended to injure the employe because of
reasons personal to him, and not directed against him as an employe or because of his
employment,” is excluded from “the course of employment” by Section 301(c )(1) of the Act, 77
P.S. §411(1).
2
At the relevant time, Employer had a shoplifting problem. There were
sixteen surveillance cameras at the store, twelve indoors and four outside, and
customers had been seen putting items in large purses. Claimant had called the
police on many occasions. Id.
On May 24, 2008, Claimant watched a woman on a surveillance
camera and saw her place several items in a large purse. He stopped the woman
and called the police, who found the items in the woman’s purse and took her to
the police station. The woman and her family were regular customers at the store,
and, shortly after the incident, eight to ten of the woman’s relatives came to the
store, kicked the door, and told Claimant that they would watch how he went home
on the bus after the store closed. The family members returned the following day
and threatened Claimant again. Instead of taking the bus home on those two
nights, Claimant stayed in an apartment with Rahman’s brother-in-law. Id.
On May 26, 2008, Rahman helped Claimant close the store and
offered him a ride home. Hussein was already in the car. The store does not have
a parking lot, and the car was parked on the street in front of the store’s door.
After Claimant got in the passenger seat, two people with their faces covered stood
in front of the car and started shooting. Claimant was shot multiple times, and he
awoke in the hospital four or five days later. He was released from the hospital on
July 8, 2008. At the time of his June 22, 2009 deposition, Claimant was still
undergoing medical treatment for his injuries, and Employer had not paid
compensation for wage loss or medical benefits. Id.
Rahman’s account differed. Rahman testified that he offered
Claimant a ride home that night because buses were running on a limited holiday
schedule. He estimated that his car was parked twenty to thirty feet from the door
3
of the store. He said that the car had already moved about ten feet when two men
began running toward the car and shot at the three occupants. Claimant and
Rahman were both shot; Rahman was able to drive to the emergency room.
According to Rahman, Claimant said at the time that he did not believe the
shooting was related to the shoplifting incident, and he told Rahman that he was
having domestic problems. FF No. 2. Rahman acknowledged that one of the
assailants moved around to his side of the car and that the assailants shot at him as
well as Claimant. FF No. 4.
On February 24, 2010, Claimant testified before the WCJ with the
assistance of an interpreter. He stated that Rahman’s car was not twenty to thirty
feet from the store but was right in front of the door. Claimant did not know who
the assailants were. He said he believed they were related to the woman whom he
caught shoplifting because her relatives had threatened him on the two previous
days and he had no enemies. He denied telling Rahman that he thought the
shooting was related to marital problems. FF No. 3.
The WCJ credited Claimant’s testimony and rejected the testimony of
Rahman where it conflicted with Claimant’s version of events. The WCJ noted
that Employer did not submit evidence from the surveillance cameras, that
Rahman’s testimony was inconsistent, and that Rahman admitted that the assailants
shot at both him and Claimant, with one of them moving around to Rahman’s side
of the car. FF No. 4.
The WCJ stated that the shooting of both men, rather than just
Claimant, supported Claimant’s testimony, and he found that the incident occurred
in retaliation for the shoplifting arrest. The WCJ also observed that while
4
Employer bore the burden of proving personal animus as an affirmative defense,
Employer offered no evidence on that issue.
The WCJ found that the incident occurred only minutes after Claimant
left work and that the public street was part of Employer’s premises because it was
the means of entrance and exit from the store. The WCJ further found that
Claimant’s injury was not the result of personal animosity but instead was related
to the May 24, 2008 shoplifting incident. FF Nos. 4-6. Accordingly, the WCJ
concluded that Claimant was in the course and scope of his employment when he
was injured. By order dated June 30, 2010, the WCJ granted Claimant’s claim
petition “within the confines of the requested bifurcation.” WCJ’s June 30, 2010
decision, p. 6.
Both parties appealed to the Board, which dismissed the appeals as
interlocutory and remanded the matter for the WCJ to take evidence and make
findings of fact and conclusions of law on the merits of the claim petition. In a
footnote, the Board stated that it agreed with the WCJ’s determination that
Claimant was injured in the course of his employment. Board’s decision, July 20,
2011.
On remand, the WCJ considered evidence concerning the nature of
Claimant’s work injuries and the extent of his disability. The WCJ granted the
claim petition in a June 6, 2012 decision and order, and Employer appealed. The
Board specifically affirmed the WCJ’s conclusion that Claimant was injured in the
course of his employment when he was shot on May 26, 2008, but agreed with
Employer that the WCJ did not make necessary findings regarding the description
of Claimant’s work injury. By order dated February 27, 2014, the Board affirmed
the WCJ’s determination that Claimant was injured in the course of his
5
employment and remanded for specific findings regarding the description of
Claimant’s work injuries.
On remand,4 WCJ Lawrence reviewed the evidence credited by WCJ
Lorine and issued specific findings as to the diagnoses related to Claimant’s work
injury.5 The WCJ’s decision of April 23, 2015, noted that the undisturbed findings,
conclusions of law, and orders previously issued remained in effect.
Employer appealed. Employer did not challenge the description of
the injury but asked for an order making the Board’s prior opinion of February 27,
2014, final and appealable. The Board granted the request by order dated October
8, 2015.
4
The Board’s remand of February 27, 2014 was assigned to WCJ Geoffrey Lawrence,
following the retirement of WCJ Carl Lorine.
5
The WCJ found that Claimant suffered the following as a result of the work injury:
a) right brachial plexopathy;
b) multiple gunshot wounds: right chest, right humerus, left thumb;
c) liver laceration;
d) chest wall pain secondary to multiple gunshot/surgical
procedures including 5th right rib resection;
e) emphysema requiring chest tube/chest tube thoracostomy;
f) laceration right upper extremity;
g) open fracture left thumb secondary to gunshot;
h) bilateral ductal disruption requiring bilateral stent placement
(6/15/2008-12/02/2008);
i) shortness of breath/dyspnea secondary to chest wall pain;
j) adjustment disorder with major depression features/aggravation
of pre-existing depression;
k) abdominal disfiguring scar formation and ventral incisional
hernia status post abdominal laporatomy procedure (5/26/2008).
WCJ’s decision, April 23, 2015, FF 9, 25.
6
On appeal to this Court,6 Employer argues that the Board erred in
affirming the WCJ’s determination that Claimant’s injuries occurred in the course
and scope of his employment.7 Whether a claimant’s injury occurred in the course
of his employment is governed by Section 301(c)(1) of the Act, which states:
The terms “injury” and “personal injury,” as used in this
act, shall be construed to mean an injury to an employe,
regardless of his previous physical condition . . . arising
in the course of his employment and related thereto . . . .
The term “injury arising in the course of his
employment,” as used in this article, shall not include an
injury caused by an act of a third person intended to
injure the employe because of reasons personal to him,
and not directed against him as an employe or because of
his employment; nor shall it include injuries sustained
while the employe is operating a motor vehicle provided
by the employer if the employe is not otherwise in the
course of employment at the time of injury; but 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.
6
Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law, or whether necessary findings
of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2
Pa. C.S. §704.
7
By way of a single-judge memorandum and order dated January 5, 2016, Employer’s
request for supersedeas was denied.
7
77 P.S. §411(1) (emphasis added). Thus, under Section 301(c)(1), an injury will
be found compensable where the employee, although not actually working, is on
the premises under the employer’s control; is required by the nature of his
employment to be there; and sustains injuries as a result of the condition of the
premises or the operation of the employer’s business. Workmen’s Compensation
Appeal Board (Slaugenhaupt) v. U.S. Steel Corporation, 376 A.2d 271, 273 (Pa.
Cmwlth. 1977).
Citing Mansfield Brothers Painting v. Workers’ Compensation Appeal
Board (German), 72 A.3d 842 (Pa. Cmwlth. 2013), Employer argues that the facts
of this case fall under the “coming and going” rule, the principle that employees
generally are not eligible for benefits when they are commuting to or from work.
Employer asserts that Claimant admittedly had finished work for the day and was
not furthering Employer’s business when he was shot. Relying on Waronsky v.
Workers’ Compensation Appeal Board (Mellon Bank), 958 A.2d 1118 (Pa.
Cmwlth. 2008), and Ortt v. Workers’ Compensation Appeal Board (PPL Services
Corp.), 874 A.2d 1264 (Pa. Cmwlth. 2004), Employer also contends that the WCJ
erred in determining that the location of the injury - the public street – was part of
Employer’s “premises.” Finally, Employer argues that the WCJ’s finding that
Claimant was injured as a consequence of the shoplifting incident is not supported
by substantial evidence.
In response, Claimant relies on Kandra v. Workmen’s Compensation
Appeal Board (Hills Department Store), 632 A.2d 1069 (Pa. Cmwlth. 1993), and
Fashion Hosiery Shops v. Workmen’s Compensation Appeal Board (Kurta), 423
A.2d 792 (Pa. Cmwlth. 1980), and argues that an employee does not have to be on
8
the clock for his injury to be in the course of his employment so long as he is on
the premises at a reasonable time before or after his shift.8
Further, Claimant relies on ICT Group v. Workers’ Compensation
Appeal Board (Churchray-Woytunick), 995 A.2d 997 (Pa. Cmwlth. 2010),
Allegheny Ludlum Corp. v. Workers’ Compensation Appeal Board (Hines), 913
A.2d 345 (Pa. Cmwlth. 2006), and Williams v. Workers’ Compensation Appeal
Board (City of Philadelphia), 850 A.2d 37 (Pa. Cmwlth. 2004), to argue that an
employer’s premises includes reasonable means of access to the workplace.
Claimant also asserts that the WCJ’s finding that the incident was in retaliation for
the shoplifting arrest of a female customer is supported by Claimant’s credible
testimony that (1) the customer’s family came to the store on two separate
occasions and threatened him; and (2) one of the assailants moved to Rahman’s
side of the car to shoot him, which negated Employer’s assertion of personal
animus against Claimant.
Whether an employee is injured in the course of his employment is a
question of law to be decided based on the WCJ’s findings of fact. Mansfield
Brothers Painting, 72 A.3d at 845. Having reviewed the cases cited by Employer,
we conclude that they are factually distinguishable from the matter before us.
In Mansfield, the claimant was a union painter assigned to work for an
employer painting dormitory rooms at the Quadrangle Building on the University
of Pennsylvania campus. The claimant fell as he was walking from the
8
As noted in Kandra, “we have consistently held that even though not actually engaged
in the employer’s work, an employee will be considered to have suffered an injury in the course
of employment if the injury occurred on the employer’s premises at a reasonable time before or
after the work period.” 632 A.2d at 1071 n.2 (citing Brind Leasing Corp. v. Workmen’s
Compensation Appeal Board (Dougherty), 584 A.2d 1102 (Pa. Cmwlth. 1990), and Fashion
Hosiery Shops).
9
Quadrangle Building to the train station after work. At the time, he was about 150
feet from the Quadrangle Building on a walkway owned by the university. The
Board affirmed the WCJ’s decision that the claimant was injured in the course of
his employment, reasoning that he was on the employer’s premises when he fell
and that a condition of the employer’s premises, an uneven walkway, contributed
to the work injury. In reversing, we explained that the “premises” in that case
encompassed only the employer’s work site, and that when the claimant fell, he
was on the university’s premises, but not the employer’s.
The claimant in Waronsky worked for Mellon Bank (employer) at a
service center located at Sixth Avenue in downtown Pittsburgh. The employer
administered a transportation program under which employees were reimbursed for
parking and public transportation. The claimant parked in the Mellon Garage, on
the opposite side of Sixth Avenue. She was injured while she was crossing the
four-lane street and was struck by a motorist. Noting that employees were not
required to park at the Mellon Garage but were free to park wherever they desired
or to use public transportation, we concluded that neither the garage nor Sixth
Avenue was an integral part of the employer’s premises. Therefore, we held that
the claimant was not injured in the course of her employment.
In Ortt, the claimant left work, walked approximately one block to the
lot where her car was parked, and was injured when she slipped on ice. The
employer did not own the parking lot, although it gave employees the opportunity
to rent spaces there at a reduced cost. This Court affirmed the WCJ’s conclusion
that the lot was not so connected with the employer’s business as to be an integral
part of that business. We reasoned that the claimant was not required to park there;
10
the injury occurred on property that was owned and operated by a private entity;
and the private entity, not the employer, was responsible for maintaining the lot.
In contrast to facts of those cases, here the WCJ found that Rahman’s
car was parked on the public street in front of Employer’s store, which area was a
reasonable means of access and exit from the workplace, and Pennsylvania courts
have repeatedly held that an employer’s “premises” includes reasonable means of
access to the situs of an employer’s business. See, e.g., Epler v. North American
Rockwell Corporation, 393 A.2d 1163 (Pa. 1978); ICT Group; Newhouse v.
Workmen’s Compensation Appeal Board (Harris Cleaning Service, Inc.) 530 A.2d
545 (Pa. Cmwlth. 1987).
In ICT Group, the claimant worked in an office park where the
employer leased multiple buildings. The claimant regularly parked her car in a
parking lot situated between her workplace and another building leased by the
employer. The claimant was walking to her car during her lunch break when she
slipped on ice and fell. The WCJ concluded that the claimant sustained her injuries
on the employer’s premises while in the course and scope of her employment, and
the Board affirmed. On appeal, the employer argued that the parking lot was not
part of its premises, noting that: it neither owned nor leased the parking lot; it
shared the parking lot with other tenants of the office park; employees’ use of the
parking lot was optional; and employees had a number of public transportation
options at their disposal.
We held that the parking lot was an integral part of the employer’s
business and, thus, part of the employer's premises, because it was a reasonable
means of access to the claimant’s workplace. We explained that “[i]t is well
established in Pennsylvania that ‘any injury occurring to an employee up until the
11
time he leaves the premises of the employer, provided that it is reasonably
proximate to work hours, is compensable.’ The rationale behind this rule is that
‘once an employee is on the [e]mployer’s premises, actually getting to or leaving
the employee’s work station is a necessary part of that employee’s employment.’”
ICT Group, 995 A.2d at 932 (quoting Allegheny Ludlum, 913 A.2d at 349).
In this case, the WCJ found that the injury occurred right after
Claimant and Rahman closed the store, as Claimant was leaving work, and at a
location that was a reasonable means of access and egress to Employer’s store.
The WCJ’s findings in this regard are supported by substantial evidence,9 and
based on these findings, the WCJ properly concluded that Claimant was injured in
the course of his employment.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
9
Employer complains that the WCJ’s finding that the shooting was related to the
shoplifting incident is not supported by substantial evidence. We have repeatedly held that a
WCJ’s authority over determinations of witness credibility and evidentiary weight includes the
prerogative to make reasonable inferences based on circumstantial evidence. LeDonne v.
Workers’ Compensation Appeal Board (Graciano Corp.), 936 A.2d 124, 131 (Pa. Cmwlth.
2007); Armak-Akzona v. Workmen's Compensation Appeal Board (Naylor), 613 A.2d 640, 642
(Pa. Cmwlth. 1992).
Additionally, we agree with the Board that in light of the circumstances and, in particular,
Employer’s failure to prove personal animus, the WCJ’s finding that Claimant was injured as a
consequence of the shoplifting incident is irrelevant.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
BC Food Market, :
: No. 2100 C.D. 2015
Petitioner :
:
v. :
:
Workers' Compensation Appeal :
Board (Shah Mahar-Ullah and :
Uninsured Employer Guaranty Fund), :
:
Respondents :
ORDER
AND NOW, this 31st day of January, 2017, the order of the Workers’
Compensation Appeal Board, dated October 8, 2015, is affirmed.
__________________________________
MICHAEL H. WOJCIK, Judge