One of the critical elements of proving a Claim Petition in Pennsylvania Workers Compensation is whether the injury occurred in the course and scope of employment. The course and scope element has been heavily litigated over the years and the rules are a bit clearer today. However, at times, course and scope issues still arise.
Recently the Pennsylvania Commonwealth Court addressed the course and scope issue on a dig bite incident that occurred at work. The facts are quite simple. In this case, a part-time employee at a restaurant was injured when he was bitten by a co-worker’s dog. The employer’s contended that the incident occurred while the employee was on break and occurred off the business property in a public alley. Additionally, the Defendant averred that the employee was warned that the dog had a tendency to snap. On the other hand, the employee asserted that the employer had two approved smoke breaks, that the employer actually provided an ashtray tower at the location of the incident, and that no positive work order was instructed to not take the break and pet the dog.
The Court upheld the WCJ decision that the course and scope element was met. The Court’s opinion stated,
Thus, in finding that Claimant was injured in the course and scope of his employment, the WCJ considered the events surrounding the incident and the location where the injury occurred.
The employer also contended that the employees actions were more than a mere, temporary departure from work duties. Essentially, the employer contended that the act of petting the dog was the act that exceeded more than temporary departure from work activities. The Court rejected that argument.
This departure from Claimant’s work is not comparable to the departure in Trigon Holdings. Claimant did not make a pronounced departure from his work; 12 rather, he was on a break expressly permitted by Employer in an area designated by Employer as the break area. In addition, Claimant did not feel the need to inform his co-workers that he would be departing from his normal duties as a line cook. Claimant testified that at some point during the smoke break all of the employees on duty that night were outside with him. (2010 FOF ¶ 6; Hr’g Tr. at 8, R.R. at 79a.) Therefore, the WCJ did not err in finding that Claimant’s act of petting the dog was a temporary departure from his work duties.
Finally, the Court rejected the notion that the employee was willful because he was warned that the dog was aggressive.
Here, before petting the dog, Claimant held out his hand to determine whether the dog would be receptive to him. (Hr’g Tr. at 7, R.R. at 78a.) After determining that the dog would be receptive, Claimant got down on his knee and the dog began to lick his face. (Hr’g Tr. at 7, R.R. at 78a.) Claimant also testified
that he did not do anything to antagonize the dog into biting him. (Hr’g Tr. at 10, R.R. at 81a.) Therefore, Claimant’s act of petting the dog was not “premeditated,deliberate, extreme, and inherently of a high-risk nature,” Penn State University,
15 A.3d at 954, so as to remove him from his course of employment.
The Court wrapped up its affirming opinion by recognizing prior case law that confirmed that smoking during intervals, smoke breaks, do not interfere with work duties and are therefore not deviations from the course and scope of employment.