IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Starr Aviation, :
Petitioner :
: No. 659 C.D. 2016
v. :
: Submitted: October 7, 2016
Workers’ Compensation Appeal :
Board (Colquitt), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
JUDGE McCULLOUGH FILED: March 7, 2017
Starr Aviation (Employer) petitions for review of the March 30, 2016
decision of the Workers’ Compensation Appeal Board (Board), affirming the order of
a workers’ compensation judge (WCJ) that granted the claim petition filed by
Modesty Colquitt (Claimant). We affirm.
Claimant worked for Employer as a “ramp agent lead” at Pittsburgh
International Airport. (WCJ’s Finding of Fact at No. 1.) Her job duties consisted of
driving a tug with a cart (a vehicle used to transport luggage bags), unloading and
reloading baggage on to airplanes, and dropping bags off at a belt so that passengers
could retrieve them. Claimant performed most of her duties at the Airside Terminal,
apparently where airplanes depart, but sometimes had to travel to the Landside
Terminal, where travelers check in, to deliver bags to an area described as the matrix.
Id. at Nos. 1-2.
On September 2, 2014, Claimant, who was twenty-one years old at the
time, arrived at work to begin her 2:00 p.m. to 11:00 p.m. shift. Claimant had started
her menstrual cycle after she left home and realized that she had forgotten her wallet
when she arrived at work. Claimant called her mother around 2:30 p.m. and
requested that she bring feminine products and money to Claimant’s work. At
approximately 8:30 p.m. to 9:00 p.m., Claimant drove a tug from the Airside
Terminal to the Landside Terminal to meet her mother. Claimant’s supervisor had
given her permission to do so. Claimant’s mother brought feminine hygiene
products, lunch money, TV dinners, and cigarettes and parked her car near the
Landside Terminal. While Claimant was driving the tug to meet her mother, it
flipped and trapped her left leg. An ambulance transported Claimant to the hospital
where her left leg was amputated in the area above the ankle and below the knee. Id.
at Nos. 5-7.
In September of 2014, Claimant filed a claim petition alleging that she
suffered injuries while in the course and scope of her employment with Employer.
Employer issued a notice of compensation denial stating, in part, that Claimant’s
injury was not within the course of her employment. The WCJ convened a hearing.
Claimant testified to the facts recited above. In opposition, Employer
presented the testimony of Lyn Brett, Claimant’s co-worker. Brett stated that, on the
day of the accident, she saw Claimant in the break room around 6:00 p.m. and
Claimant said that she had cramps and was hungry. Brett testified that she offered
Claimant some food and money, but Claimant said that her mother was bringing her
food and money. Brett added that she believed that the restroom and break room
contained feminine products. Id. at No. 11.
Employer also presented the testimony of another co-worker, Dan
Gordon, who stated that he was working as a “wingman” with Claimant and that she
2
operated the tug “entirely too fast” on the date of the accident. Id. at No. 12. Finally,
Employer submitted the testimony of Daniel Butler, a ramp lead for a different crew.
Butler stated that, during a break, Claimant offered him crackers. Id. at No. 13.
In a decision dated January 7, 2015, the WCJ found Claimant’s
testimony credible and convincing. The WCJ found that Claimant forgot her wallet,
started her menstrual cycle on September 2, 2014, while at work, needed feminine
products and money, and called her mother to deliver such products and money to her
at the airport. Id. at No. 14(c)-(e). Notably, the WCJ found that “[C]laimant’s job
performance would be affected by her menstrual cycle and would be adversely
affected if she did not have feminine products to address the situation.” Id. at No.
14(d). The WCJ further found that Claimant asked for and received permission from
her supervisor to take a tug to meet her mother at the Landside Terminal and that
Claimant’s injury occurred on Employer’s premises. Id. at No. 14(f), (h).
Based on these findings, the WCJ determined that Claimant’s temporary
departure from performing work to administer to her personal needs did not take her
out of the course of her employment. The WCJ found that Claimant’s departure from
work was temporary, Claimant had permission to engage in this departure, and the
departure was for the purpose of attending to personal needs and comfort that would
allow her to continue her shift with Employer. Therefore, the WCJ concluded,
Claimant remained in the course of her employment pursuant to the “personal
comfort doctrine.” Id. at No. 14(g)-(i).
In rendering her decision, the WCJ made the following assessment of the
testimony of Employer’s witnesses: “While considered, I do not find [Employer’s]
witnesses testimony to be relevant to the issues in this matter.” Id. at No. 15. More
specifically, the WCJ found that Brett’s testimony regarding the availability of
feminine products for purchase in the rest and break rooms was “inconsequential;”
3
that Gordon’s testimony about Claimant using the tug “too fast” was “immaterial;”
and that Butler’s testimony that Claimant offered him snacks was also “immaterial.”
Id. at No. 15.
Having made these credibility determinations and factual findings, the
WCJ granted Claimant’s claim petition, concluding that she had been totally disabled
since the date of her injury, September 2, 2014.
On appeal, the Board affirmed, and Employer filed a petition for review
with this Court.1
In its first argument, Employer contends that the WCJ erred in
concluding that the personal comfort doctrine applies in this case because Claimant’s
conduct does not constitute a small or temporary departure from her work activities
and she was furthering her own interests. We disagree.
Section 301(c)(1) of the Workers’ Compensation Act (Act), Act of June
2, 1915, P.L. 736, as amended, 77 P.S. §411(1), provides that an injury must occur in
the course of employment and be causally related thereto in order for the injury to be
compensable. The courts have developed two tests that are used to determine
whether an injury was sustained in the course of employment. Under the first test,
which is the only one we address and apply in the present matter, the question is
whether the employee was actually engaged in the furtherance of the employer’s
business or affairs, regardless of whether the employee was upon the employer’s
premises. Kmart Corporation v. Workers’ Compensation Appeal Board
(Fitzsimmons), 748 A.2d 660, 664 (Pa. 2000); Marazas v. Workers’ Compensation
1
Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether findings of fact were supported by substantial
evidence. Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894
A.2d 214, 216 n.3 (Pa. Cmwlth. 2006).
4
Appeal Board (Vitas Healthcare Corporation), 97 A.3d 854, 862 (Pa. Cmwlth.
2014).2
The issue whether an employee is acting in the course of his or her
employment at the time of an injury is a question of law, which must be based on the
WCJ’s findings of fact. Trigon Holdings, Inc. v. Workers’ Compensation Appeal
Board (Griffith), 74 A.3d 359, 362 (Pa. Cmwlth. 2013). Typically, “[a]n activity that
does not further the affairs of the employer will take the employee out of the course
and scope of employment and serve as a basis for denial of the claim by the WCJ.”
Wetzel v. Workers’ Compensation Appeal Board (Parkway Service Station), 92 A.3d
130, 136 (Pa. Cmwlth. 2014) (citation omitted). However, “it is well established that
an employee is considered to have sustained an injury while actually engaged in the
furtherance of an employer’s business interests and affairs, where the injury occurred
during inconsequential or innocent departure from work within the regular working
hours.” US Airways v. Workers’ Compensation Appeal Board (Dixon), 764 A.2d
635, 642 (Pa. Cmwlth. 2000).
More specifically, in discussing what has been referred to as the personal
comfort doctrine, our Court has explained:
‘[C]ourse of employment’ embraces intervals of leisure
within regular hours of the working day and that
momentary departures from the work routine do not remove
an employee from the course of his employment . . . .
Breaks which allow the employee to administer to his
personal comfort better enable him to perform his job and
2
Parenthetically, under the second test, the employee need not be engaged in the furtherance
of the employer's business or affairs, however, the employee: (1) must be on the premises occupied
or under the control of the employer, or upon which the employer's business or affairs are being
carried on; (2) must be required by the nature of his employment to be present on the premises; and
(3) must sustain injuries caused by the condition of the premises or by operation of the employer's
business or affairs thereon. Kmart, 748 A.2d at 664; Marazas, 97 A.3d at 862.
5
are therefore considered to be in furtherance of the
employer’s business.
Id.
And one treatise further elucidated:
The personal comfort doctrine, common to all workers’
compensation laws, holds that the employee whether on the
premises or off, does not stray from the course of
employment for a momentary departure from active work to
attend to some ‘personal comfort’ such as using the
restroom, fixing one’s hair, or changing contact lenses or
make-up.
David Torrey and Andrew E. Greenburg, Workers’ Compensation: Law and Practice
§4:76 (3d ed. 2008); see Verizon Pennsylvania, Inc. v. Workers’ Compensation
Appeal Board (Alston), 900 A.2d 440, 445 (Pa. Cmwlth. 2006).
Here, Claimant testified that it would have taken her less than ten
minutes to meet her mother and retrieve the items she delivered. (Reproduced
Record (R.R.) at 73a-74a.) According to the WCJ’s findings of fact, the motivating
impetus for Claimant’s mother’s trip to Employer’s Landside Terminal was to deliver
feminine products to Claimant. See WCJ’s Finding of Fact at No. 14. As a matter of
fact, the WCJ found that “[C]laimant’s job performance would be affected by her
menstrual cycle and would be adversely affected if she did not have feminine
products to address the situation.” Id. at No. 14(d). The WCJ further found that “[a]t
the time of the injury, [C]laimant was attending to her personal comfort so that she
could continue to serve [Employer’s] interest.” Id. at No. 14(i). Given the
underlying nature and extent of Claimant’s departure via the tug, which was done
with Employer’s express permission, we conclude that Claimant’s conduct fits
squarely within the personal comfort doctrine. See also Kramer v. City of
Philadelphia, 116 A.2d 280, 282 (Pa. Super. 1955) (concluding that police officer
6
was in the course of his employment when he was involved in an off-duty motorcycle
accident because the officer “requested and was granted permission by his superior
officer to use the motorcycle assigned to him as a means of transportation to and from
his home and the police station to which he had to report.”).
To be sure, an apt analogy can be made to Montgomery Hospital v.
Workers’ Compensation Appeal Board (Armstrong), 793 A.2d 182, 187-88 (Pa.
Cmwlth. 2002), wherein this Court concluded that an injury occurring while a
claimant was using the bathroom facilities did not remove the claimant from his
course of employment. As a matter of logic, if a break to use the restroom is within
the parameters of the personal comfort doctrine, then so should be an authorized
break to retrieve prescription medicines or certain personal items, such as feminine
care products, that someone else delivers to the workplace for the employee. The
common thread in these instances is that the employee, upon request and permission,
is administering to his or her own health and comfort, taking measures that are
reasonably necessary to alleviate a condition that could potentially interfere with an
employee’s ability to work and make the employee more effective in resuming and/or
completing work duties. Although Claimant’s mother seized the opportunity to also
deliver money, food, and other personal items, this does not impact or alter our
analysis because the WCJ clearly gave less weight to the necessity of these items and
focused predominantly on the urgency of and need for the feminine care product. See
WCJ’s Finding of Fact at No. 14. As such, we conclude that the Board and the WCJ
did not err in determining that Claimant, by virtue of the personal comfort doctrine,
was furthering Employer’s interest and affairs at the time of the injury.
Next, Employer argues that the WCJ erred in finding that Claimant was
injured on Employer’s premises. Having already concluded that Claimant was
furthering Employer’s business or affairs at the time of the accident, it does not
7
matter whether Claimant was injured on Employer’s premises because the injury is
compensable in either event. See Workmen’s Compensation Appeal Board
(Slaugenhaupt) v. U.S. Steel Corporation, 376 A.2d 271, 273 (Pa. Cmwlth. 1977)
(stating that an injury is “in the course of employment . . . where the employee,
whether on or off the employer’s premises, is injured while actually engaged in the
furtherance of the employer’s business or affairs . . . .”)
Employer also contends that the WCJ committed reversible error in
dismissing the testimony of its witnesses as irrelevant and inconsequential. We
disagree.
In an able fashion, the Board disposed of Employer’s argument as
follows:
We do not interpret the WCJ’s ruling as finding
[Employer’s] witnesses not credible, nor their testimony
excluded from consideration due to a lack of competency
. . . . [W]e conclude the WCJ was ruling that even if she
were to fully credit the testimony of all three witnesses, as a
matter of law, it does not change the outcome. [Employer]
essentially argues that Claimant’s departure from her
employment for her personal comfort was unnecessary as
co-employees offered to Claimant money to purchase food
and the personal essentials Claimant required. [Employer]
argues that the testimony of [its witnesses are] relevant
because it establishes that Claimant was offered on site the
essentials [she] required . . . .
The WCJ fully credited Claimant’s testimony as to the
circumstances and reasons for her departure. In applying
the personal comfort doctrine, [the WCJ] found no
testimony of [Employer’s witnesses] that rebutted
Claimant’s testimony. There was no testimony from the
[witnesses] which make the reason for Claimant’s
temporary departure ‘less probable.’ Claimant’s testimony
alone, as the WCJ found, and we agree, was sufficient to
legally meet the requirements of the personal comfort
doctrine exception under the specified facts of this case . . . .
8
[Employer] would seem to have us read into the
requirement [a] judgment qualification as to whether or not
the trip to meet her mother was necessary. As workers’
compensation is ‘no-fault’ and there is no such precedent,
we decline to impose one.
(Board’s decision at 8-9.)
We agree with the Board. The WCJ expressly “considered,” (WCJ’s
Finding of Fact No. 15), the testimony of Employer’s witnesses but determined that
the substance of said testimony pertained to a collateral issue, i.e., whether it was
necessary for Claimant to meet her mother. Importantly, none of Employer’s
witnesses proffered testimony that would tend to negate, or call into question, the fact
that Claimant began her menstrual cycle while at work. Pursuant to well-settled case
law, it is immaterial whether a reasonable person in Claimant’s shoes would have
made other arrangements to meet her personal needs; indeed, any perceived fault in
Claimant’s decision to call and make arrangements with her mother is no defense to
liability under the Act. See Rox Coal Co. v. Workers’ Compensation Appeal Board
(Snizaski), 768 A.2d 384, 391 (Pa. Cmwlth. 2001) (“Employer attempts to inject fault
and simple negligence into workers’ compensation proceedings; however, the Act
clearly does not recognize negligence as a defense.”). Consequently, we find no
merit to Employer’s argument.
Finally, Employer contends that the WCJ and the Board erred in
awarding Claimant total disability benefits rather than specific loss benefits.3
However, Employer did not raise this specific issue in its appeal to the Board, nor
could this issue be considered to have been reasonably encompassed within
Employer’s assertions of error. Indeed, in its appeal to the Board, Employer does not
3
See Schemmer v. Workers’ Compensation Appeal Board (U.S. Steel), 833 A.2d 276, 278-
79 & n.5 (Pa. Cmwlth. 2003), for a discussion of specific loss benefits under the Act.
9
even mention the words “specific loss benefits,” and Employer cannot be said to have
impliedly raised this legal issue by baldly challenging the WCJ’s legal conclusion
granting Claimant’s claim petition and awarding her benefits. See R.R. at 219a (“The
[WCJ] committed an error of law by finding that Claimant has met her burden of
proof in the Claim Petition and in finding that Claimant is entitled to the receipt of
temporary total disability benefits.”). Consequently, we conclude that this issue is
waived for purposes of this appeal. See McGaffin v. Workers’ Compensation Appeal
Board (Manatron, Inc.), 903 A.2d 94, 100-01 (Pa. Cmwlth. 2006) (reiterating that, in
order to properly preserve an issue for an appeal, “a party must specifically identify
. . . the particular grounds being appealed to the Board,” and finding issue waived
where the claimant did not raise the issue “in any manner” to the Board).
Therefore, having concluded that Employer has not provided this Court
with a legal basis upon which to disturb the Board’s decision, we will affirm the
Board’s order affirming the WCJ’s decision that granted Claimant’s claim petition.4
________________________________
PATRICIA A. McCULLOUGH, Judge
4
We nevertheless note that Employer confirms that Claimant has recently filed a review
petition, alleging that she sustained injuries in addition to the amputation injury. (Employer’s reply
brief at 9.) Employer concedes that if this petition is granted, Claimant would be entitled “to
ongoing disability benefits.” Id.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Starr Aviation, :
Petitioner :
: No. 659 C.D. 2016
v. :
:
Workers’ Compensation Appeal :
Board (Colquitt), :
Respondent :
ORDER
AND NOW, this 7th day of March, 2017, the March 30, 2016 order of
the Workers’ Compensation Appeal Board is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge