Miller v. Workers' Compensation Appeal Board
2012 Pa. Commw. LEXIS 180
| Pa. Commw. Ct. | 2012Background
- Claimant filed a claim petition on September 1, 2009 alleging an August 12, 2009 foot injury arising in the course and scope of employment with Millard Refrigerated Services.
- A hearing was held on November 16, 2009, where Claimant testified about his work duties, his lack of forklift certification, and unauthorized forklift use.
- Claimant testified he drove an uncertified forklift on August 12, 2009 after finishing his work and staying until 1:30 a.m.; he crashed the forklift at 1:15 a.m. injuring his foot.
- Employer’s lead man, Butz, testified Claimant was hired to operate a pallet jack, not a forklift, and that employees must be certified to operate equipment; Claimant was not certified.
- The WCJ found Claimant not credible on key points and found Butz credible; the WCJ concluded the injury occurred outside the course and scope of employment and was caused by violating a positive work rule.
- The WCAB affirmed the WCJ’s denial and dismissal of the claim, and the reviewing court affirmed the WCAB.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the injury occurred in the course and scope of employment | Claimant argues the injury was work-related and within the course and scope of employment. | Employer argues the injury resulted from violating a positive work rule and was outside the course and scope. | Affirmed that injury not in course and scope due to rule violation. |
| Whether the positive-rule violation removed Claimant from course and scope | Claimant contends the rule violation did not remove him from course and scope. | Employer asserts the violation and uncertified operation removed Claimant from course and scope. | Affirmed removal due to violation of a positive order/rule. |
| Whether the WCJ’s credibility findings are supported by substantial evidence | Claimant challenges the WCJ’s credibility determinations. | Employer relies on the WCJ’s credibility findings crediting Butz’s testimony. | Upheld credibility determinations; credibility is for the WCJ. |
| Whether driving a forklift unrelated to duties constitutes employment outside course and scope | Driving the forklift was incidental to work duties and within course and scope. | Driving the forklift was outside job duties and not connected to employment. | Driving forklift was outside the course and scope; not a duty-based activity. |
| What is the appropriate standard of review | Not specifically argued; standard is to review for credible evidence and law. | Standard confirms deference to WCJ findings supported by substantial evidence. | Review limited to substantial evidence and legal conformity; affirmance appropriate. |
Key Cases Cited
- Dickey v. Pittsburgh & Lake Erie R.R. Co., 297 Pa. 172 (Pa. 1929) (example of removing oneself from course and scope for disobedience of rules)
- Nevin Trucking v. Workmen’s Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa.Cmwlth.1995) (employer burden for rule violation defense requires proof of three elements)
- Cittrich v. Workmen’s Compensation Appeal Board (Laurel Living Center), 688 A.2d 1258 (Pa.Cmwlth.1997) (credibility determinations reside with the WCJ)
- Lombardo v. Workers’ Compensation Appeal Board (Topps Co.), 698 A.2d 1378 (Pa.Cmwlth.1997) (weight and credibility of witnesses reviewed for substantial evidence)
- Inglis House v. Workmen’s Compensation Appeal Board (Reedy), 535 Pa. 135 (Pa.1993) (claimant must prove injury within course and scope and causally related)