Mitchell v. Workmen's Compensation Appeal Board

Opinion by

Judge MacPhail,

Marian S. Mitchell (Claimant) appeals from the decision and order of the Workmen’s Compensation Appeal Board (Board) reversing a referee’s decision granting compensation to Claimant. We affirm the decision of the Board.

Claimant’s husband, Garner P. Mitchell (Decedent), died in his garage at home on Saturday, December 5, 1981. The Decedent, an employee of 4-J Harvestore Systems, Inc. (Harvestore), served as a consultant/salesman of Harvestore products to farmers. The referee found that Decedent’s work required him to call on the farmers during the evening and on weekends. The referee also found that Harvestore supplied the Decedent with a car for both work and personal use and paid the maintenance and repair costs for the vehicle.

With respect to the circumstances of the fatal accident, the referee found the following facts: Decedent had hacked the car into his garage to change a tire; Decedent let the engine run in order to heat the garage; the Decedent was under the car for the purpose of checking the differential or otherwise examining the underside of the car; Claimant found Decedent lying on his back under the rear of the car; and Decedent died as a result of carbon monoxide poisoning. On the basis of these findings, the referee concluded as a matter of law that the Deceased suffered a work-related injury and that his fatal injury was compensable.

Harvestore appealed the referee’s decision to the Board. Without taking additional evidence, the Board reversed, holding that there was no causal connection between Decedent’s employment as a farm advisor and sales consultant and his death. Claimant’s appeal to this Court followed.

Section 301(c)(1) of the Pennsylvania Workmen’s Compensation Act1 states:

(1) The terms “injury” and “personal injury, ’ ’ as used in this act, shall he construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, . . . and wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury. . . . The term “injury arising in the course of his employment,” . . . shall include all other injuries .sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere. . . .

Our scope of review is limited to a determination of whether the findings of fact made by the referee are supported by substantial evidence and whether there has been a constitutional violation or error of law. Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 439 A.2d 627 (1981). It was Claimant’s burden to establish that Decedent’s death was related to his employment. Marincov v. Workmen’s Compensation Appeal Board (City of Washington), 71 Pa. Commonwealth Ct. 194, 454 A.2d 670 (1983). Claimant need only show that Decedent’s injury arose in the course of employment and was related thereto. Krawchuk. Where, as here, the Board has taken no additional evidence, the referee is the ultimate fact finder. Crouse v. Workmen’s Compensation Appeal Board, 57 Pa. Commonwealth Ct. 430, 426 A.2d 749 (1981). Whether Decedent was in the course of employment at the time of his fatal injury is a question of law to be determined on the basis of the findings of fact, William F. Rittner Co. v. Workmen’s Compensation Appeal Board (Rittner), 76 Pa. Commonwealth Ct. 596, 464 A.2d 675 (1983), and the determination of that issue is subject to our review. Setley v. Workmen’s Compensation Appeal Board (Kawecki Berylco Ind.), 69 Pa. Commonwealth Ct. 241, 451 A.2d 10 (1982).

An examination of the record convinces ns that the referee’s finding that Decedent suffered a fatal work-related accident while engaged in the furtherance of his employer’s business is not supported by the evidence. Our review of the record discloses that Decedent died on a Saturday after returning in the afternoon from a personal visit to his brother’s home. Although Decedent was frequently required to call on farmers on the weekend, this was not for emergency purposes but rather as a convenience to the farmers who were more readily available then and in the evenings than at other times. Decedent had not used the company car for work on the day he died. The Decedent and Claimant planned to spend Saturday evening at home watching television. Decedent had no business calls scheduled for Saturday or Sunday. His next scheduled business activity was a sales presentation to be made on the Tuesday following his death. Significantly, although the referee found that Decedent occasionally worked on the car himself, he also found that all maintenance and repair costs were paid by Harvestore. Decedent also had a personal car available for his use. The record simply does not support the conclusion that the Decedent was in the course of his employment when he changed the tire. He had no immediate need for the car to carry out his employer’s business. We cannot construe an injury occurring at an employee’s own home following Decedent’s pursuit of personal affairs as having arisen in the furtherance of the business of his employer. See Hepp v. Workmen’s Compensation Appeal Board (B. P. Oil Co.), 67 Pa. Commonwealth Ct. 330, 447 A.2d 337 (1982).

Claimant cites three cases in our Superior Court in support of her contention that she met her burden of proof here. In all three cases, the employee was found dead while repairing a vehicle in a closed garage. In Stevens v. C. B. Parker Co., Inc., 108 Pa. Superior Ct. 520, 165 A. 665 (1933), the Superior Court reversed a trial court decision affirming the grant of benefits by the referee and Board. The decedent was a traveling salesman using his own car. His death occurred on a regular work day. The Court held that since there was no evidence that the decedent actually started or even intended to conduct the employer’s business on the day he died, he was not furthering his employer’s business. That result is not helpful to the Claimant here, of course. In Green v. Hiestand, 103 Pa. Superior Ct. 515, 157 A. 44 (1931) and Beck v. Ashton, 124 Pa. Superior Ct. 307, 188 A. 368 (1936), the decedent in each case was clearly involved in the employer’s business when the accidental deaths occurred. In Green, the decedent had made some customer calls and intended to make more when his car gave him trouble and he stopped to repair it. In Beck, the decedent had called his office in the morning for someone to come to his home to repair his car to enable him to get to work. Before that employee arrived, the decedent undertook to repair the car himself. It is patently clear that both cases are factually distinguishable from the one now before us.

Having decided that Decedent’s fatal injury is not compensable because it did not occur in the course of his employment, we need not consider whether Decedent’s death was work related. See Capitol International Airways, Inc. v. Workmen’s Compensation Appeal Board, 58 Pa. Commonwealth Ct. 551, 428 A.2d 295 (1981).

Order

The order of the Workmen’s Compensation Appeal Board, dated December 1, 1983, No. A-85472, is affirmed.

This decision was reached prior to the resignation of Judge Williams, Jr.

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411(1).