One of the critical elements of proving a Claim Petition in Pennsylvania Workers Compensation is whether the injury occurred in the course and scope of ย employment. The course and scope element has been heavily litigated over the years and the rules are a bit clearer today.ย However, at times, course and scope issues still arise.
Recently the Pennsylvania Commonwealth Court addressed the course and scope issue on a dog bite incident that occurred at work. The facts are quite simple. In this case, a part-time employee at a restaurant was injured when he was bitten by a co-worker’s dog. The employers contended that the incident occurred while the employee was on break and occurred off the business property in a public alley.ย Additionally, the Defendant averred that the employee was warned that the dog had a tendency to snap. On the other hand, the employee asserted that the employer had two approved smoke breaks, that the employer actually provided an ashtray tower at the location of the incident, and that no positive work order was instructed to not take the break and pet the dog.
The Court upheld the WCJ decision that the course and scope element was met. The Court’s opinion stated,
Thus, in finding that Claimant was injured in the course and scope of hisย employment, the WCJ considered the events surrounding the incident and theย location where the injury occurred.
The employer also contended that the employees actions were more than a mere, temporary departure from work duties.ย Essentially, the employer contended that the act of petting the dog was the act that exceeded more than temporary departure from work activities. The Court rejected that argument.
This departure from Claimantโs work is not comparable to the departure inย Trigon Holdings. Claimant did not make a pronounced departure from his work; 12ย rather, he was on a break expressly permitted by Employer in an area designatedย by Employer as the break area. In addition, Claimant did not feel the need toย inform his co-workers that he would be departing from his normal duties as a lineย cook. Claimant testified that at some point during the smoke break all of theย employees on duty that night were outside with him. (2010 FOF ยถ 6; Hrโg Tr. at 8,ย R.R. at 79a.) Therefore, the WCJ did not err in finding that Claimantโs act ofย petting the dog was a temporary departure from his work duties.ย
Finally, the Court rejected the notion that the employee was willful because he was warned that the dog was aggressive.
Here, before petting the dog, Claimant held out his hand to determineย whether the dog would be receptive to him. (Hrโg Tr. at 7, R.R. at 78a.) Afterย determining that the dog would be receptive, Claimant got down on his knee andย the dog began to lick his face. (Hrโg Tr. at 7, R.R. at 78a.) Claimant also testified
that he did not do anything to antagonize the dog into biting him. (Hrโg Tr. at 10,ย R.R. at 81a.) Therefore, Claimantโs act of petting the dog was not โpremeditated,deliberate, extreme, and inherently of a high-risk nature,โ Penn State University,
15 A.3d at 954, so as to remove him from his course of employment.
The Court wrapped up its affirming opinion by recognizing prior case law that confirmed that smoking during intervals, smoke breaks, do not interfere with work duties and are therefore not deviations from the course and scope of employment.