94 Pa. Commw. 156 | Pa. Commw. Ct. | 1986
Opinion by
This is an appeal by the City of Pittsburgh (Employer) from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed a referee’s decision granting temporary total disability benefits to Charles Schiller (Claimant). We reverse. .
Claimant was injured while employed as a rodent control worker by Employer. Claimant’s job required that he travel around the City of Pittsburgh in a van with his supervisor and a crew of four or five. coworkers. On May 14, 1981, Claimant was working his usual 9:00 a.m. to 5:00 p.m. shift. At approximately 4:00 p.m., his supervisor directed that the crew take a break at a local park. During this break, Claimant, with his supervisor’s knowledge but without her.explicit consent, rode on a child’s merry-go-round. As he was getting off he fell and injured his knees. Claimant ’s injury prevented him from working.
Claimant timely filed a claim for workmen’s compensation. After a hearing, the referee concluded that Claimant was injured in the course of his employment and granted benefits. The Board affirmed. Employer now appeals to this Court, asserting that, as a matter of law, Claimant’s injury did not occur within the course of his employment. We agree. ■
We first note that the question of whether an employee is in the course of his employment at the time of the injury is a question of law subject to review by this Court. Bethlehem Steel, Corp. v. Workmen’s Compensation Appeal Board, 56 Pa. Commonwealth Ct. 438, 425 A.2d 473 (1981). In support of their posi
We conclude that this case is controlled by Weaver v. Workmen’s Compensation Appeal Board (Ribstone Silos of Pennsylvania), 90 Pa. Commonwealth Ct. 262, 494 A.2d 882 (1985). In Weaver, an employee was drowned while walking in the Susquehanna River during a break. The referee in Weaver found that the decedent’s supervisor was aware that the employees would go swimming during breaks but that he was not in favor of this practice. We stated in Weaver:
If the act in which the employee was engaged when injured off the [employer’s] premises was not connected with the employer’s business, it must appear that the employer ordered or directed the act; and merely permitting the employee to do the act without directing or ordering its performance will not support an award.
Id. at 267, 494 A.2d at 884 (citation omitted). See also Harris v. Workmen’s Compensation Appeal Board, 51 Pa. Commonwealth Ct. 470, 414 A.2d 765 (1980).
In the case at bar, Claimant’s conduct in riding the merry-go-round was not in furtherance of the business or affairs of Employer. The fact that Claimant’s supervisor was aware of Claimant’s conduct is not relevant. What is relevant is that the supervisor did not order or direct the conduct. Weaver; Harris.
Because we conclude that Claimant was not injured in the course of his employment, we reverse the Board’s order.
Order
And Now, January 10,1986, the order of the Pennsylvania Workmen’s Compensation Appeal Board, No. A-87342, dated August 2,1984, is reversed.