Defense Digest

Course Of Employment: Personal Comforts And Intervals Of Leisure

The Pennsylvania Workers’ Compensation Act states, in pertinent part:

Pennsylvania Workers' Compensation Act, Sections 301(a) and 301(c)(1), 77 P.S. §§ 431, 411(1).

When a claimant has sustained an injury while deviating from his employment, the question of "course of employment" becomes an issue, and it must be determined whether that deviation was large enough to take the employee outside of the furtherance of the employer’s business.

Pennsylvania courts take a case-by-case, fact-based approach in determining whether a departure from work has broken the course of employment. Generally, the relevant question for determining whether the injury occurred within the course and scope of employment is whether the claimant was in furtherance of the employer’s business. However, wider latitude is typically given to employees who are deemed to be traveling employees, employees whose duties include travel or who have no fixed place of work. If an employee is a traveling employee, he is within the scope of his employment unless what he was doing at the time of injury was so foreign and removed from his usual employment that it would be considered an abandonment of his duties. Furthermore, under the personal comfort doctrine, breaks allowing an employee to tend to his personal comfort, which help him to better perform his job, are considered to be within the furtherance of the employer’s business. This doctrine applies to both the traveling employee and the stationary employee but, again, will be applied more broadly to the traveling employee.

A recent Pennsylvania case dealing with course and scope of employment is The Baby’s Room v. W.C.A.B (Stairs), 860 A.2d 200 (Pa. Cmwlth. 2004). The claimant was a furniture delivery person who, upon finishing a delivery to a customer’s home, jumped up to touch a basketball rim that was on the property of the delivery. The rim was wet from the rain, causing his fingers to slip off. The claimant fell backwards, hit his head, and suffered a traumatic brain injury as a result. He filed a claim for workers' compensation benefits, alleging injury while in the course and scope of employment and seeking total disability benefits.

The completed furniture delivery had been the last one of the day for the claimant, who was accompanied by his supervisor. At the hearing, the supervisor had testified that their deliveries for the day were over and they were going to return the truck to the warehouse, sign their time sheets, and proceed home. Based on this testimony, the Workers' Compensation Judge concluded that the claimant was in the course and scope of his employment when he was injured and granted the Claim Petition. The Worker’s Compensation Appeal Board agreed and affirmed the Workers' Compensation Judge's decision. The employer appealed the Board’s decision to the Commonwealth Court.

The Commonwealth Court noted first that, since the claimant’s job duties required daily travel from his employer’s warehouse to different locations to deliver furniture, he was a traveling employee. Focusing on the personal comfort doctrine, the employer admitted that course of employment included personal comforts and conveniences but argued that the claimant's actions extended beyond this. However, the court pointed out that course and scope of employment also embraces "intervals of leisure," for which it turned to Webster's Dictionary for a definition. According to Webster's, "leisure" means "freedom or spare time provided by the cessation of activities" and "free time as a result of temporary exemption from work or duties." The court found these definitions to be descriptive of the claimant's actions when he ran and jumped up to touch the rim of the basketball hoop.

The Commonwealth Court also relied on a 1959 case in which the Pennsylvania Superior Court held that a much more serious departure from work duties, which ultimately caused the claimant's death, was within the course and scope of employment. Mitchell v. Holland Furnace Company, 149 A.2d 662 (Pa. Super. 1959) involved a door-to-door salesman who took a break to pick fruit from a customer's cherry tree. The claimant fell to the ground from the ladder he was using to climb the tree, fractured his skull, and died. The Superior Court agreed with the Workers' Compensation Board that the claimant was a traveling employee and, therefore, "course of employment" was given a more liberal construction than it would have been under a stationery employee analysis.

The court held that the Board's finding that the fall from the cherry tree occurred in the course of employment was supported on two theories. First, the cherry picking on the premises of the employer's customer and in the presence of his sales manager made the act an integral part of the claimant's duties and functions as a salesman. Second, even if the act of cherry picking was not part of his employment, the act was such a slight departure from employment that it could not be said to have broken the course of employment.

If cherry picking and jumping up to touch a basketball rim strike the employer as behavior that should fall outside of the course of employment, consider the following cases in which the claimants' activities were held to be within the course of employment under either the personal comfort doctrine or the intervals of leisure theory.

In Montgomery Hospital v. W.C.A.B (Armstrong), 793 A.2d 182 (Pa. Cmwlth. 2002), the claimant alleged that his injury occurred when he felt a sharp pain shoot from his lower back to his right leg while he rose from the toilet during a bathroom break at work. The Commonwealth Court agreed with the Workers' Compensation Judge that the claimant's momentary departure from work to use the bathroom did not remove him from the course of employment. In U.S. Airways v. W.C.A.B (Dixon), 764 A.2d 635 (Pa. Cmwlth. 2000), the claimant was returning to her office after picking up lunch at a restaurant located in her employer's building when she slipped and fell on the floor in the lobby and was injured. The Commonwealth Court agreed with the Workers' Compensation Judge that her "momentary and inconsequential" departure from the work area during the regular working hour did not break the course of employment. Finally, in D'Agata National v. W.C.A.B (D'Agata), 479 A.2d 98 (Pa. Cmwlth. 1984), the claimant entered a luncheonette on his way to meet with potential customers, interrupting a robbery, and was shot six times. The luncheonette happened to be located on the employer's premises. However, the Commonwealth Court noted that, whether or not the claimant was on employer's premises, the claimant was in the course and scope of employment because he was furthering the employer's business and his momentary deviation into the luncheonette to have a cup of coffee did not break the chain of employment.

When considering whether an alleged work-related injury occurs within the course of employment, the employer should keep in mind that the rule is not that an injured worker must prove that the injury arose out of the employment itself. In other words, an employee does not have to be actually engaged in employment at the time of injury. He must only establish that the injury occurred in the course of his employment, which will include personal comforts or conveniences and intervals of leisure. Employers should be aware of this when an employee alleges a work-related injury and there is a question about whether the employee was in the course and scope of his employment at the time.

Of course, there are cases in addition to those cited above in which the courts have found that a claimant was, in fact, not within the course and scope of his employment at the time of the alleged work-related injury. However, the cases cited are meant to inform and to remind employers that the courts will take a case-by-case, fact-based approach to course of employment questions. Therefore, an employer should look at each and every fact of a case-whether an employee is a traveling or a stationary employee and what exactly the employee was doing at the time of the alleged injury-when developing a course of employment defense.

*Lauren is an associate in our Philadelphia, PA office. She can be reached at (215) 575-2653 or lwellborn@mdwcg.com.