PPL v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Senior Judge FRIEDMAN.

Because I disagree with the majority’s conclusion that Carol Kloss (Claimant) failed to establish that the Linden Street Parking Deck (Linden Deck) was integral to PPL’s (Employer) business and failed to establish that her injuries resulted from a condition of the premises, I respectfully dissent. Accordingly, I would affirm the order of the Workers’ Compensation Appeal Board (WCAB).

Initially, the majority holds that Employer’s subsidization of parking at the Linden Deck is immaterial to determining whether the Linden Deck constituted Employer’s premises. To me, this holding unnecessarily restricts our inquiry to whether an area is “on the employer’s premises” within the meaning of the Workers’ Compensation Act (Act).1 See Epler v. North American Rockwell Corporation, 482 Pa. 391, 393 A.2d 1163, 1167 (1978) (“[T]he critical factor is not the employer’s title to or control over the area, but rather the fact that [the employer] had caused the area to be used by [] employees in performance of their assigned tasks.”). While not dispositive of the issue, the availability of parking subsidies is relevant to whether the parking facilities are an integral part of an employer’s business. One can easily imagine a situation in which the parking subsidies provided by an employer are an economic enticement sufficient to compel the employee to park at the subsidized location. How would such a subsidy be different in function than a policy mandating where the employee should park, such as the directive in Epler? See id. at 1167 (“It is sufficient if the employee is required to be in the area because of the employment.”).

*1289Unfortunately, this court’s decisions in Ortt v. Workers’ Compensation Appeal Board (PPL Services Corp.), 874 A.2d 1264 (Pa.Cmwlth.2005), and Waronsky v. Workers’ Compensation Appeal Board (Mellon Bank), 958 A.2d 1118 (Pa.Cmwlth.2008), have foreclosed any inquiry into this potentially relevant detail. In those cases, this court lost sight of the basic principles that “[t]he automobile has become the universal means of transportation,”2 Epler, 393 A.2d at 1165, and that “all employer[-]provided parking programs are, to some extent, optional,” Ortt, 874 A.2d at 1269 (Kelley, S.J., dissenting). An employee must get to work. When an employee drives to work, he or she must park the car and enter the workplace. While I understand that this is a problem of line-drawing, given the liberal and humanitarian construction of the Act, I would not define premises so narrowly that it excludes an essential part of every workday.

Examining the totality of the circumstances, including the parking subsidies that Employer offered, I would find that the Linden Deck was integral to Employer’s business and, therefore, part of Employer’s premises. Several factors distinguish the present case from Ortt and Waronsky: (1) the Linden Deck is physically connected via a skyway to the Employer’s North Building and access to the Linden Deck requires a magnetic swipe card; (2) the Linden Deck is not open to the public and Employer’s personnel utilize the vast majority of the spaces, with a few remaining spaces occupied by employees of Keystone Bank and Trust Company; and (3) the Linden Deck was one of only two lots for which Employer provided parking subsidies.

This case is more comparable to ICT Group v. Workers’ Compensation Appeal Board (Churchray-Woytunick), 995 A.2d 927 (Pa.Cmwlth.2010), wherein this court found that the parking lot in question was part of the employer’s premises. See id. at 931 (“[T]he parking lot in question was an integral part of Employer’s business because it was a reasonable means of access to the workplace.”). Thus, I would find that the Linden Deck was integral to Employer’s business.

I also disagree with the majority’s determinations that Claimant failed to establish that her injuries resulted from a condition of the premises and that a condition of the premises must contribute to the cause of the injury. Claimant was not required to show that her injury resulted from a faulty condition or Employer’s negligence. See Good Shepherd Workshop v. Workmen’s Compensation Appeal Board (Caffrey), 124 Pa.Cmwlth. 262, 555 A.2d 1374, 1378 (1989) (“[Cjoncepts of fault and negligence are foreign to the purpose of workers’ compensation legislation to afford compensation to injured workers regardless of the employer’s fault.”). Rather, Claimant was merely required to show “that (1) the injury [ ] occurred on the employer’s premises, (2) the employee’s presence thereon was required by the nature of [her] employment, and (3) the injury was caused by the condition of the premises or by the operation of the employer’s business thereon.” Thomas Jefferson University Hospital v. Workmen’s Compensation Appeal Board (Cattalo), 144 Pa.Cmwlth. 302, 601 A.2d 476, 478 (1991). Claimant’s injuries occurred because her head and shoulder struck the ground inside the Linden Deck, and the ground is a “condition of the premises.” See Good Shepherd, 555 A.2d at 1378-79 (finding that the workplace floor was a “condition of the premises”).

Because I believe that the WCAB correctly determined that Claimant was on Employer’s premises and was injured by a *1290condition of the premises, I would affirm the WCAB’s order.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.

. Although Epler was decided in 1978, I believe that this sentiment is no less true today.