In Donald Werner v. WCAB (Greenleaf Service Corporation), the Commonwealth Court affirmed the denial of a Fatal Claim Petition brought by the Decedent’s widow, who alleged that the Decedent had sustained a work-related injury in the nature of a massive intracranial hemorrhage, ultimately resulting in the Decedent dying ten (10) days post-hemorrhage.
In between the Decedent initially sustaining the hemorrhage, at which time he was not technically a Decedent, and the Decedent becoming a Decedent, the Employer denied the claim, formally issuing a Notice of Compensation Denial. In the course of litigating the Fatal Claim Petition before the Workers’ Compensation Judge, the parties had bi-furcated the proceedings, asking the Workers’ Compensation Judge to first address the issue of whether the Decedent had been in the course and scope of his employment, at the time of the initial hemorrhage.
Key facts involved in the fatal claim were that the Decedent had been employed by the Employer as an International Sales Manager, requiring the Claimant to travel, as well as to work out of his New Jersey home, and at the Employer’s offices in Pennsylvania. The Decedent would work Monday through Friday in Pennsylvania, and the Decedent then maintained an office in the basement of his New Jersey home, equipped with a computer, fax machine, cell phone, and printer, all of which were owned by the Employer. The Decedent also had his own personal computer.
Just before the Decedent sustained his ultimately fatal hemorrhage, the Decedent had injured his right hand on a personal vacation in Texas. That injury resulted in the Decedent cancelling a business trip to Europe, as the Decedent was not able to handle his baggage and other things, and the Decedent had to undergo medical treatment for the hand injury.
On the date of the ultimately fatal hemorrhage, the Decedent’s widow testified that the Decedent, when working from home, began work at 8:00 a.m. On the date in question, the Decedent’s widow had called the Decedent at 11:30 a.m., to indicate that she was leaving, for errands, with the Decedent acknowledging her departure. The Decedent’s widow then returned home at about 12:30 p.m., although she stayed in her car, talking on her cell phone, until almost 1:00 p.m.
When she finally entered the house, she called out to the Decedent, and she assumed that the Decedent was on the telephone, when she did not receive any response.
The Decedent’s widow then watched television for another full hour, before again calling downstairs to the Decedent, to tell him that she was going to the grocery store. When the Decedent did not answer, the Decedent’s widow went downstairs to ask him if he needed anything, finding the Decedent sitting in his chair, and being unresponsive when she attempted to communicate with him. Immediately recognizing that there was something wrong, the Decedent’s widow called her son, and then called 911. The Decedent’s widow was never again able to communicate with the Decedent, before he finally became a decedent at his death.
Testifying before the Workers’ Compensation Judge, the Decedent’s widow testified that she believed that the Decedent had initially fallen at the front door to their house, as she found blood on the sidewalk, and the Decedent’s glasses were off to the side. She also testified that the Decedent often used the front door, to step outside their home to smoke in that area, and that when she had come home that day the home burglar alarm had been on, requiring her to disengage it.
The Decedent’s son was also called to testify, with his testimony being that he found blood on the ground at the bottom of two (2) exterior steps leading to the front door of the house, and that he also found blood coming up the front stairs into the foyer, as well as finding it in the bathroom floor and in the bathroom sink.
Also presented in support of the Fatal Claim Petition was a death certificate, indicating that the cause of death was blunt force head injuries. The Decedent’s widow also submitted, into evidence, copies of email messages from the Employer, with her also having an electronic printout indicating that the Decedenthad sent seven emails, which appeared to be work-related between 7:52 a.m. and 10:12 a.m., on the date of the Decedent’s hemorrhage.
In defense of the fatal claim, the Employer’s President testified, providing background as to the Employer’s business as well as its procedures. The President’s testimony was that the Decedent had been directed to work from the Employer’s Pennsylvania offices, if the Decedent was not making in-person calls on Employer clients.
Testimony from the Employer’s Treasurer established that the Employer had reimbursed the Decedent for costs associated with his home office, to include the telephone line and internet access, as the Employer did with all of its salesmen.
Undisputed evidence established that the Decedent was paid an annual set salary, regardless of hours worked.
Under a Decision issued by the WCJ in 2009, the Fatal Claim Petition was denied, with the WCJ finding that the Decedent’s widow had failed to produce sufficient evidence to establish that the Decedent had been in the course and scope of his employment, at the time of his 2007 hemorrhage. Finding that the Employer had allowed its salesmen substantial overlap between personal and business matters, the WCJ found it impossible to determine what the Decedent had been doing when the hemorrhage occurred as the Decedent had received both business and personal communications over the course of that morning.
Moreover, the Workers’ Compensation Judge found that the fact that the Decedent was sitting in a chair in his home office when discovered by his wife did not alone prove that the Decedent had been in the course and scope of his employment when the hemorrhage occurred. Appealing the WCJ’s Denial to the Appeal Board, the Appeal Board affirmed the WCJ’s Denial with the Decedent’s widow then appealing the Denial of the Fatal Claim to the CommonwealthCourt.
In an opinion authored by the Honorable Judge Brobson, the Commonwealth Court affirmed the rulings of the Appeal Board and the WCJ, as the Commonwealth Court agreed that the specific circumstances surrounding the Decedent’s “injury” were essentially unknown, with the record evidence only proving that the Decedent had been injured sometime between 11:30 a.m. and 2:00 p.m., with there being no direct or circumstantial evidence proving what the Decedent had been doing, when the Decedent sustained his injury, such that the Commonwealth Court was unable to determine whether the Decedent had been injured in the course and scope of his employment.
A respectful dissent was authored by Honorable Senior Judge Friedman, and this dissent warrants review, as Judge Friedman would have found that the Employer’s approval of the Decedent having been authorized to work from home, rendered the home office as the equivalent of the Employer’s premises, thereby triggering the “personal comfort” rule, that a minor deviation from “furthering the Employer’s business interests”, does not mean an abandonment of work, but means, simply, that the injured employee should still be considered to be within the course and scope of employment, if an injury occurs during “an inconsequential or innocent departure from work during regular working hours”.
There is no question but that technology has significantly expanded the scope and reach of what was once considered to be the “office” and/or the “workplace”.
The effect of allowing the dissent to become the consensus is that the “workday” would not have a “terminus”, as there would be no Rubicon-like demarcation, effectively establishing a distinction between the business day ending and the resumption of personal non-business related activities.
For salaried employees, who are not required to use a time clock, or other device, to clearly delineate the beginning and end of each workday, the line between business and personal can be an extremely fact-dependent matrix.
Accessibility is, by now, a relatively tenuous extension of the modern “office”, as the evolution of smartphones effectively eclipses, in one sense, muddying, in another, the blurred lines between “business” and “personal”.
Right or wrong, in terms of the initial assessment of whether a claim like the Werner claim is compensable or not, there is simply no easy way for an employer, or, for that matter, an insurer or administrator, to be able to gather enough facts, from those who may or may not know, as to how the injury might have occurred, absent there being full evidentiary proceedings, with any initial denial being insulated, even if the fatal claim is eventually granted by a Worker’s Compensation Judge, by there being but one conclusion, that in the contest of a claim like the Werner claim, it should absolutely result in a reasonable contest being found to any denial issued by an Employer.
– By Kevin L. Connors
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