714 A.2d 1143 | Pa. Commw. Ct. | 1998
The issue before this Court is whether a traveling employee who removes debris blocking his passage and then is struck by a passing vehicle when attempting to remove additional debris hampering other motorists, has abandoned his employment, making him ineligible for workers’ compensation benefits.
Buckeye Pipe Line Company (Employer) appeals from the order of the Workers’ Compensation Appeal Board (WCAB) that affirmed, but modified the Workers’ Compensation Judge’s (WCJ) grant of benefits to Alan A. Abt (Claimant). We affirm.
Claimant worked as an electronic technician for Employer traveling to various job sites.
Claimant filed for workers’ compensation benefits. Employer did not dispute that Claimant’s conduct in removing the debris from the ramp blocking the van was in the course of his employment. However, Employer argues that Claimant abandoned his “employment” when he decided to remove debris from the highway, as this was not within the scope of Employer’s business. However, the WCJ granted benefits.
On appeal, the WCAB concluded that Claimant’s conduct in “removing the rest of the boxes from the highway did not constitute an abandonment of employment that would take him totally out of the scope of employment.” Opinion at 5. The WCAB held that Claimant’s action was “merely an innocent departure from his course of employment and not enough to deny benefits.” Id.
On appeal to this Court,
In order to overcome the presumption that Claimant’s injuries occurred within the scope of his employment, Employer needed to present evidence that the accident occurred during a “very distinctive break” from Claimant’s job duties and that the removal of the highway debris was so “foreign and removed” from Claimant’s usual employment to constitute an abandonment of that employment. The problem with Employer’s position that Claimant abandoned his employment is that the WCJ found Claimant had to stop his van to remove debris that impeded his path. This conduct, thus, was found necessary and in furtherance of Employer’s business. The WCAB recognized that the removal of the rest of the highway debris that was causing an immediate traffic hazard was also not so foreign and removed as to constitute an abandonment of Claimant’s employment. The WCAB held that Claimant’s conduct was at most an innocent departure likening Claimant’s actions to those cases where employees have been injured while stopping for personal comfort reasons. See Carr v. Workmen’s Compensation Appeal Board (May Department Store), 671 A.2d 780 (Pa.Cmwlth.1995); Lenzner Coach Lines v. Workmen’s Compensation Appeal Board (Nymick, Sr.) 158 Pa.Cmwlth. 582, 632 A.2d 947 (1993); Port Authority of Allegheny County v. Workmen’s Compensation Appeal Board (Stevens), 70 Pa.Cmwlth. 163, 452 A.2d 902 (1982).
Employer asserts, however, that Claimant’s conduct was not merely an innocent departure but was reckless, imprudent or dangerous, likening Claimant’s conduct to leaning over the edge of a cliff. (Employer’s Brief at 12). While this Court has denied benefits in cases where the claimant engaged in “reckless, imprudent or dangerous” activity, Evans v. Workmen’s Compensation Appeal Board (Hotwork, Inc.), 664 A.2d 216 (Pa.Cmwlth.1995), the WCJ here, did not find that Claimant’s conduct was reckless or imprudent. This finding is supported by substantial evidence
A number of courts have gone to considerable lengths in upholding awards for injuries occurring in the course of miscellaneous “good Samaritan” activities by employees, on the theory that the employer ultimately profited as a result of the goodwill thus created.
Accordingly, we affirm.
ORDER
AND NOW, this 10th day of July, 1998, the order of the Workers’ Compensation Appeal Board in the above-captioned matter is hereby affirmed.
. Claimant also worked at the same time for Pennsylvania Commuter Airlines, for whom he serviced communications equipment.
. Claimant observed traffic swerve and come to a near stop, including a tractor-trailer that zigzagged and hit debris, including a large 30-cup coffee percolator that flew through the grill and headlight of a car. (Finding of Fact No. 7). Claimant also observed another car almost stop on the highway to try to get around the debris. Claimant believed the driver motioned to him to do something. Id.
.Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial competent evidence. 2 Pa.C.S. § 704.
. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Grabish v. Workmen’s Compensation Appeal Board (Trueform Foundations, Inc.) 70 Pa.Cmwlth. 542, 453 A.2d 710 (1982).
. In Lewis v. Kentucky Central Life Insurance Co., 20 N.C.App. 247, 201 S.E.2d 228 (1973), an insurance salesman was struck by an out-of-control automobile after helping a policy-holder whose automobile had stalled. The court granted benefits stating that the test was whether the employee was acting for the benefit of his employer or for his own benefit. There, specific personal relations essential to the industry were promoted, as was general goodwill.
Further, in Howell v. Kash & Karry, 264 S.C. 298, 214 S.E.2d 821 (1975), a supermarket employee was sent to a parking lot across from the
. Employer’s second argument that Claimant should be denied benefits because the act of walking on the highway is illegal was waived because it was not presented to the WCJ.