Little v. Workers' Compensation Appeal Board

CONCURRING & DISSENTING OPINION BY

Senior Judge FRIEDMAN.

I agree with the majority that, under Panyko v. Workers’ Compensation Appeal *646Board (U.S.Airways), 585 Pa. 310, 322-323, 888 A.2d 724, 732 (2005), a claimant who suffers a purely physical injury, such as a heart attack, need not prove that the working conditions were abnormal to establish a compensable work injury. However, I disagree that B & L Ford/Chevrolet (Employer) ended the employment of David Little (Decedent) prior to January 30, 2006, and, thus, Janet Little (Claimant) could not prove that Decedent suffered a compensable fatal heart attack on January 30, 2006. (Majority Op. at 643^5.)

The workers’ compensation judge (WCJ) in this case specifically found that Decedent “was employed by [Employer] ... on January 30, 2006.” (Findings of Fact, No. 1.) The majority states that this finding “suggests” that the WCJ found January 30, 2006, to be “a pertinent date for the purpose of establishing that an employment relationship existed.” (Majority Op. at 643.) I submit that the finding is clear and unambiguous, not merely suggestive, that Employer employed Decedent on Monday, January 30, 2006.1

The WCJ also found that Decedent received a letter from Employer on Saturday, January 28, 2006, which “terminated the [Decedent’s2] employment.” (Findings of Fact, No. 2.) The WCJ did not include the effective date of the termination in this finding. Although the letter stated Employer’s belief that Decedent voluntarily terminated his employment as of Friday, January 27, 2006, the WCJ did not adopt either the 27th or the 28th as the effective date of the termination. Rather, the WCJ found that Decedent was still employed by Employer on Monday, January 30, 2006.3

Having established that the WCJ found that Decedent was employed by Employer on January 30, 2006, I shall address whether the WCJ erred in concluding that Decedent was not in the course of employment when he suffered a fatal heart attack on January 30, 2006.

An injury is sustained 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. Workmen’s Compensation Appeal Board (Slaugenhaupt) v. U.S. Steel Corporation, 31 Pa.Cmwlth. 329, 376 A.2d 271, 273 (1977).

Here, Decedent received a letter from Employer on Saturday, January 28, 2006, setting forth Employer’s belief that Decedent voluntarily terminated his employment because Decedent failed to provide a timely doctor’s report about his ability to work. The letter invited Decedent to contact Employer’s president or “Alice” if he had any questions regarding his employment. (See 1/27/06 Letter, Ex. C-3.) Thus, it is apparent that, when Decedent suffered a heart attack with the letter in his hand, he was considering his response to Employer’s erroneous conclusion. Because the letter involved an unresolved personnel matter and invited a response, I *647conclude that Decedent was furthering Employer’s affairs and, therefore, was in the course of his employment when he died.

Accordingly, I would reverse and remand this case to the WCAB for remand to the WCJ for consideration of the parties’ medical evidence on causation,

.The majority negates this finding, stating that January 30, 2006, only represents the "date upon which disability benefits legally could end.” (Majority Op. at 644.) However, the finding is that Decedent was employed by Employer on January 30, 2006. Thus, the date also represents the last day of Decedent’s employment.

. I note that the WCJ actually found that the letter terminated "Claimant’s" employment. However, the WCJ frequently confused Claimant and Decedent in the decision.

. To the degree there is a discrepancy between the WCJ's findings of fact regarding the last day of Decedent’s employment, I submit that the case should be remanded for clarification.