A pharmacy technician’s injury during a mandatory break

Ms. Baker worked as a pharmacy technician at a Giant Eagle grocery store in Pittsburgh. On August 12, 2021, during one of her two mandatory fifteen-minute breaks, she was struck by a vehicle while crossing a busy street to get lunch, resulting in a fractured shoulder and leg. During that time, she had clocked out and was permitted to leave the premises.

Workers’ Compensation Judge (WCJ) David Torrey denied her claim initially, noting that because Ms. Baker was on a formal break, she suffered injuries while acting outside the course and scope of employment. The Workers’ Compensation Appeal Board (WCAB) reversed and remanded the claim, citing the personal comfort doctrine and noting that her injuries occurred on her customary route of ingress and egress. WCJ William Gallishen granted Ms. Baker benefits, and the WCAB affirmed. Giant Eagle appealed to the Commonwealth Court.

On appeal, the court had to decide whether a short, employer-controlled break—even one that allows an worker to briefly leave the premises—remains within the course and scope of employment. If it did not, Ms. Baker’s injuries would not be compensable.

Giant Eagle argued that the formal nature of the break and Ms. Baker’s ability to leave the premises placed her outside the personal comfort doctrine established by the Pa. Supreme Court in Dzikowska v. Superior Steel Co., 103 A. 351 (1918). Giant Eagle added that Ms. Baker crossed a public street in a manner it characterized as jaywalking, which it claimed would exceed the bounds of the personal comfort doctrine.

The personal comfort doctrine holds that when a worker suffers an injury “during an inconsequential or innocent departure from work during regular working hours,” that injury is compensable. Verizon Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Alston), 900 A.2d 440, 445 (Pa. Cmwlth. 2006). Over time, courts have ruled that these injuries are compensable because there was no break in the course of employment when they occurred, and that workers’ “acts of ministration,” as the Dzikowska court put it, during which the injuries occurred, furthered the employers’ interests.

More recently, the Commonwealth Court explained in Henderson v. WP Ventures, Inc. (Workers’ Compensation Appeal Board), 269 A.3d 1272 (2022), that while the application of the personal comfort doctrine “is a case-by-case inquiry and that each matter will depend on its evidence,” Pennsylvania precedent suggests the “personal comfort doctrine may apply when the claimant’s time away from the work premises is informal in nature, purely devoted to personal comfort of a physical nature, . . . and brief enough that the course of employment is not broken.” Examples of this in prior cases include stepping out for a cigarette, obtaining takeout food or coffee from a nearby mobile lunch truck or the building lobby in which an employer is located, and securing feminine care products.

On the other hand, the personal comfort doctrine “may not apply . . . if the worker is on a formalized break or lunch period during which an employee is likely to enjoy a degree of autonomy, however brief, and may engage in other activities in addition to immediate personal needs.” Examples of these activities from prior cases include leaving an employer’s premises to attend church, to cash a paycheck, or to go shopping.

In Giant Eagle, given this precedent, the court held, in an opinion penned by Judge Wojcik, that Ms. Baker’s injuries were compensable. The court explained that she was injured while on one of two obligatory 15-minute breaks during which she left her employer’s premises, retrieved a takeout meal, and “relieve[d] her hunger.” The court viewed this act as “a simple ‘act of ministration,’” which was compensable.

The court did not read Henderson to preclude Ms. Baker from being compensated because of the formality or autonomy of her break. The court relied on Henderson’s case-by-case approach to the personal comfort doctrine, and noted that Henderson established “a continuum between those factors which indicate a claimant remained in the course of employment at the time of their injury and those factors which indicate the claimant broke the course of employment.” Because Ms. Baker’s break was “so cursory that when she set out to undertake an act of ministration that act was all she had time for,” the court held that “the brevity of [her] break afforded to [her] diminished or tempered the autonomy that attended it.”

Notably, the majority dismissed Ms. Baker’s jaywalking as “immaterial” to its analysis. It explained that the Pennsylvania Workers’ Compensation Act (“Act”) does not allow an employer to use contributory negligence as a defense to its liability for accidents in the course of employment. The majority, ruling as it did on the personal comfort doctrine, did not express an opinion on Giant Eagle’s premises liability.

A dissenting view focused on the nature of workers’ breaks and not their length

In her dissent, Judge Fizzano Cannon, joined by Judge Covey, explained that she would have held Ms. Baker’s injury non-compensable. Judge Dumas dissented separately, without issuing an opinion.

Judge Cannon argued the majority’s approach abandoned a longstanding rule: breaks such as Ms. Baker’s, where a worker has formally clocked out, should never qualify for the personal comfort doctrine, regardless of how brief they are. In her view, once Ms. Baker punched out and left Giant Eagle’s premises, she was no different from any other member of the public crossing the street.

Judge Cannon noted that for over a century, Pa. law has recognized the distinction between injuries that occur when a worker takes a personal comfort break in the course of their employment versus injuries that occur when a worker is on their “own free time” during the workday. This distinction is not newly contrived, but dates back to the early days of workers’ compensation. She explained that Henderson’s case-by-case approach to the applicability of the personal comfort doctrine allows for flexibility, but that flexibility “does not negate the consistency of the distinction” between injuries occurring when a worker is on an informal break versus when they “formally left the course of employment,” were likely to enjoy “a degree of autonomy, however brief,” and “may engage in other activities in addition to immediate personal needs.”

According to Judge Cannon, there was no precedent to suggest that “the length of time of an assigned and unpaid break matters more than, or changes, the fact that a worker who is off work premises and on that type of break has left the course of employment.” In her view, the distinction between unpaid breaks and ad hoc breaks where the worker remains on the clock “has never been based on the length of the break, has never been erased or treated as a ‘continuum,’ and remains not just relevant, but dispositive of compensability in the absence of any other countervailing factual basis or legal theory.”

Interestingly, Judge Cannon also viewed Ms. Baker’s jaywalking to be “immaterial,” but for a different reason. For her, Giant Eagle could not claim Ms. Baker’s jaywalking violated Pennsylvania law, which per Section 301(a) of the Act would preclude her from being compensated for her injuries, because she was not convicted of jaywalking and because jaywalking is a summary offense.

When employers constrain workers’ breaks, their injuries during them are more likely to be compensable

The Commonwealth Court’s decision here casts the personal comfort doctrine as a continuum on which a worker’s likelihood of being entitled to compensation for an injury suffered while on a break will turn on the length of that break, their employer’s control over it, and whether the worker’s activity is tied to an immediate personal need. The decision reinforces that when a worker briefly steps off their employer’s premises during a short, mandatory break to obtain food or other necessities, the activity is treated as part of the workday, and a worker’s clocking out does not necessarily bar recovery.

(That the majority did not view Ms. Baker’s alleged contributory negligence as a factor in its decision should not come as a surprise. When agreeing to the Grand Bargain and giving up their right to sue their employers in court and to try their cases before a jury of their peers in exchange for the promises made to them in the Act, one of those promises was that the commonwealth’s workers’ compensation scheme would be a no-fault scheme.)

Giant Eagle’s significance lies less in any single fact and more in the Commonwealth Court’s insistence on a fact-specific approach. Had the dissent’s bright-line rule prevailed, any formally clocked-out break—no matter how brief or tightly controlled by the employer—would automatically fall outside the personal comfort doctrine. That all-or-nothing approach would treat a worker on a rigid, employer-dictated fifteen-minute break the same as one on a leisurely, self-directed hour off.

Judge Cannon warned that trading a bright line for a “continuum” leaves compensability to no “true standards other than the views of the adjudicator.” This is a fair concern, as predictability is a good thing when it comes to a remedial statute like the Act, which both workers and employers rely on.

The bright-line rule the dissent advocates for, however, is no more grounded in the text of the Act than the majority’s approach. The majority pointed out that the clocked-out/clocked-in distinction “hails not from the text of the Act itself” but from a “century-plus of precedent.” Thus, both approaches are the work of adjudicators.

But only one better serves the Act’s humanitarian purpose. The majority’s approach turns on concrete, provable facts: the length of a break, who controlled its timing and duration, and whether the worker’s activity answered an immediate personal need. These factors give workers’ compensation attorneys on both sides of the aisle a specific record to develop and give WCJs a principled basis for decision.

In contrast, a mechanical rule could deny benefits to a worker whose 15-minute break afforded no meaningful autonomy because their timecard said they had “clocked out.” This appears to be the same elevation of form over substance that the personal comfort doctrine exists to prevent. Faced with a choice between a predictable rule that produces the wrong result and a fact-specific one that reaches the right one, the court here chose fidelity to the Act’s purpose over administrative convenience.

The Pa. Supreme Court may weigh in on that choice, as Giant Eagle filed a Petition for Allowance on Appeal with the court on August 12. But for now, with Giant Eagle now on the books, when fielding inquiries from workers injured on the job while on a break seeking assistance with their workers’ compensation claim, claimants’ firms would be wise to document a worker’s break length, who controlled its duration and timing, and whether the activity they engaged in during their break was of an immediate necessity. Giant Eagle suggests those facts, rather than how the break is labeled, will determine whether the injury was compensable.

Melissa R. Chandy and Stephen R. Miller are partners at Pond Lehocky Giordano Inc. Taylor Trusky is the Chair of Pond Lehocky Giordano’s Washington State Workers’ Compensation practice. Stephen was the handling attorney on this matter, Taylor argued the case, and Melissa handled the appellate brief. They can be reached at mchandy@pondlehocky.com, smiller@pondlehocky.com, and ttrusky@pondlehocky.com, respectively.

Reprinted with permission from the October 1, 2026 edition of The Legal Intelligencer © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.