State News : Pennsylvania

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By Kevin L. Connors, Esquire


Hamlet beware!


In Wetzel v. WCAB, decided by the Pennsylvania Commonwealth Court on May 27, 2014, the Court reversed the Decision of the Pennsylvania Workers’ Compensation Appeal Board, which had reversed a Decision of the Workers’ Compensation Judge, who had granted a Claim Petition filed on behalf of the Claimant, Wetzel, who sustained severe and serious injuries, rendering him comatose and permanently disabled, in the course of attempting to stop a thief from leaving the Employer’s premises, during an attempted robbery of the Employer’s store.


The Claimant, now Decedent, was employed by Parkway Service Station as a Management Employee.


In his Claim Petition, he alleged that he sustained a work-related severe traumatic brain injury, rendering him comatose, permanently disabled, and incapacitated, as a result of being struck by a vehicle, while the Claimant was attempting to stop a thief, who was fleeing the store after attempting to rob the store.


In the course of the Claim Petition being presented to the Workers’ Compensation Judge, the Claimant died, and the Petition was modified to assert claims for burial and medical expenses.


The Employer contended that the Claimant’s death was not causally related to his employment, that his injuries did not occur within the course and scope of employment, and that the Claimant was not, therefore, entitled to workers’ compensation benefits.


In defending the Claimant’s Petitions, the Employer contended that the Claimant violated a positive work order, as the Claimant was carrying a gun while on the Employer’s premises, as the Claimant had previously used a firearm, several years before, to stop an attempted robbery of the Employer’s store.


The evidence presented to the Workers’ Compensation Judge was that the Claimant had carried a gun at work before, that the Employer knew that the Claimant carried a gun, that there was no specific policy against Employees carrying guns, and that the Claimant had never received an Employee Handbook, during the 27 years that he worked for the Employer.


The evidence also established that the Claimant had shot a robber during a robbery attempt in 2007, and that he continued to carry a gun after that incident.


As for how the Claimant was injured, the Claimant was injured during a nightshift in November of 2009.


While working that shift, the thief entered the store, reached over the counter, attempted to grab cash out of the cash drawer, when another store Employee shouted at the thief, and the thief ran out the door, with the Claimant, and 2 others, chasing the thief.


The thief jumped into a car, and the Claimant leaned into the thief’s car, attempting to stop the thief from getting away.


The thief continued driving, dragging the Claimant with him, with the Claimant jumping onto the thief’s car, as the car sped towards the parking lot exit.


Unfortunately, the Claimant fell off the car, the thief’s car then ran over the Claimant’s head, and the thief got away.


In reliance upon those facts, the Workers’ Compensation Judge found that the Decedent had not violated a positive work order, by carrying a firearm, or by attempting to stop the robber, and the Judge found that the Decedent was furthering the business interests of the Employer, as he was injured as a result of being struck by the thief’s car, when the thief fled the premises, and the Claimant was attempting to stop a robbery in progress.


In reliance upon those facts, the Workers’ Compensation Judge concluded that the Claimant established that he sustained work-related injury, with the workers’ compensation benefits being awarded to the Claimant.


Before the Appeal Board, the Board concluded that the Claimant was not furthering the Employer’s interests, when the Claimant pursued and attempted to stop the thief, as the Board held “we cannot agree that the duties of the convenience Store Manager include the pursuit and apprehension of a criminal suspect”, holding that the Claimant did not meet his burden of proof, and that it was not, therefore, necessary for the Employer to establish a violation of a positive work order.


The Appeal Board further held that the Claimant’s premeditated, deliberate, extreme, and inherently high-risk actions were sufficient to remove him from the course and scope of his employment, in reliance uponPenn State University v. WCAB (Smith), 15 A.3d 949 (Pa. Cmwlth. 2011).


Affirming the granting of the Claimant’s Claim Petition by the Workers’ Compensation Judge, the Commonwealth Court found that the Claimant was required to be on the Employer’s premises, and that the Claimant’s attempt to stop the robbery in progress was not an abandonment of his employment, as the only interest in doing so was that of the Employer, to include securing the safety of fellow Employees and Customers, such that the Claimant had not abandoned his course and scope of employment, and that his injuries did, in fact, occur within the course and scope of his employment.


Although the violation of a positive work rule is an affirmative defense to a Claim Petition, the Employer must prove that the injury was caused by the rule violation, that the Employee actually knew of the rule, and that the rule implicated an activity not connected with the Employee’s job duties, with the Commonwealth Court finding that the Claimant’s pursuit of the thief was not removed from his job duties as a convenience Store Manager.


Did the slings and arrows of outrageous fortune swing in favor of the Claimant in this case, where the Claimant was where he was supposed to be, on the Employer’s premises, doing what he was paid to do, protecting the store, Employees, and Customers, in the course of which the Claimant sustained horrific injuries that became life-ending, making the Appeal Board’s reversal of the Workers’ Compensation Judge’s Decision quixotic at best, when, more often than not, the Appeal Board is typically affirming the Workers’ Compensation Judge’s Decisions, rarely reversing or overturning, in the course of benefits either being granted or denied.


There is no question that this case screamed for sympathetic overlay, where an Employee reacts to an extreme and high-risk situation, heroically placing personal safety over “that is not what I get paid to do.”


ConnorsLaw LLP


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