Case Law Update

May 30, 2014

Positive Work Order/Course and Scope:

Wetzel v WCAB (Parkway Service Station), __ A.3d __ (Pa. Cmwlth., No. 1693 C.D. 2013, filed May 27, 2014).

A convenience store manager suffered a traumatic brain injury, after attempting to stop an armed robber from leaving his employer’s premises. He later died as a result of his injuries. The issues before the WCJ were: (1) whether the decedent violated a positive work rule, by possessing a gun on the employer’s premises and (2) whether he was in the course and scope of his employment when he was struck and severely injured by the thief’s vehicle.

On the positive work rule issue, the WCJ found that the decedent did not violate a positive work order by carrying a firearm or by attempting to stop the robber, based on the following factors: the employer was aware that the decedent carried a gun; the decedent was not the only person who carried a gun at the store; there was no policy in effect prohibiting employees from carrying guns; the decedent was never given a handbook in his 27 years of employment; and the decedent had previously shot a robber and had not been fired. 

On the issue of whether the decedent was acting within the course of his employment, the WCJ found that the decedent was furthering the business affairs of the employer because he had been called in early to take care of matters in the store on the date of the work incident, the decedent had remained on the premises to work, and the decedent was injured as a result of being struck by the thief’s car, as the thief fled the scene.

The Board reversed the granting on the claim, finding that decedent had abandoned his employment,  taking him out of the course and scope of his employment  when he was injured after pursuing and attempting to stop the thief.

The Commonwealth Court reversed. The Court noted that the decedent did not actively disengage himself from his work responsibilities when he attempted to stop the thief, given that the employer had previously allowed him to both carry a firearm and to stop a robbery attempt without consequence. The Court observed that the WCJ’s findings supported the conclusion that the decedent’s job duties, as a night manager, included securing the safety of fellow employees and customers at the employer’s store. The record also confirmed that the decedent reacted immediately to the situation, and had been struck within moments of leaving the store to stop the thief.  As a result, the Commonwealth Court affirmed the WCJ’s original finding that the decedent was acting in furtherance of the employer’s interests, and not his own; the decedent’s actions did not remove him from his job duties as a store manager, so as to constitute an abandonment of his employment.

The Board’s Order was reversed and the claim petition was affirmed.

Because the claimant failed to prove that Pennsylvania had jurisdiction over his claim, and because he admitted that he failed to present proof as to the applicability of New York workers’ compensation law, the Court rejected the claimant’s request for a remand for findings as to the applicability of New York workers’ compensation law.

Accordingly, the denial of the claim petition was affirmed.

 

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