Keiter v. Workmen's Compensation Appeal Board

654 A.2d 629, 1995 Pa. Commw. LEXIS 98
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 7, 1995
StatusPublished
Cited by5 cases

This text of 654 A.2d 629 (Keiter v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keiter v. Workmen's Compensation Appeal Board, 654 A.2d 629, 1995 Pa. Commw. LEXIS 98 (Pa. Ct. App. 1995).

Opinion

COLINS, President Judge.

Michael Keiter (Keiter) petitions for review of an order of the Workmen’s Compensation Appeal Board (Board), which reversed an order of a worker’s compensation referee (referee) that granted Keiter benefits under the Workers’ Compensation Act (Act).1 For the reasons set forth herein, we reverse.

Keiter, a member of the Avondale Borough Fire and Ambulance Companies, was injured just after midnight on January 1, 1990, while on call for the Dial-A-Ride Program (program).2 Keiter received his injuries when he was thrown from the back of his pickup truck during his lunch break. Keiter sustained multiple injuries, including a broken back, broken right leg, and broken left ankle.

Keiter filed a claim petition on August 10, 1990. After a series of hearings at which both parties were represented by counsel and presented evidence, the referee issued findings of fact and conclusions of law. The referee concluded that Keiter’s injuries were sustained in the scope of his employment as a volunteer fireman and emergency medical technician for Avondale Borough (employer) and that timely notice was given to employer.

Employer appealed to the Board, arguing (1) that the referee’s findings of fact were not supported by substantial evidence and that the referee committed an error of law in concluding that Keiter was engaged in activities furthering the affairs of his employer at the time of his injury, and (2) that Keiter’s notice was not effective until April 27, 1990. The Board reversed the referee and determined that no compensation was due because the evidence of record did not support the referee’s conclusion that Keiter’s voluntary separation from his duties in order to take a lunch break left him within the course and scope of his employment; no decision was rendered on the issue of notice. This petition for review followed.

Keiter raises two issues for this Court’s consideration. Keiter questions: (1) whether the Board erred in reversing the referee’s conclusion that the petitioner sustained his injuries within the course and scope of his employment; and (2) whether the referee’s finding that Keiter gave employer notice of his injuries fifteen days after sustaining his injuries is supported by substantial evidence. Employer, in response, argues that the referee’s conclusions regarding course and scope of employment were not supported by the evidence of record, and that the referee’s finding of notice should be reversed as that finding is not supported by substantial evidence.3

This Court’s scope of review in appeals from administrative agencies, as dictated by Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, is limited to determining whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. “Whether an employee is in the course of his employment at the time of his injury is a question of law which must be based on the findings of fact.” Roman v. Workmen’s Compensation Appeal Board (Department of Environmental Resources), 150 Pa.Commonwealth Ct. 628, 682, 616 A.2d 128, 130 (1992). In reviewing a referee’s findings of fact, we must always be mindful that it is solely within the referee’s discretion to find facts and, if these facts are grounded in substantial evidence, neither the Board nor this Court may disturb them. Hess Brothers v. Workmen’s Compensation Appeal Board (Gomiek), 128 Pa.Commonwealth Ct. 240, 568 A.2d 236 (1989). Substantial evidence is “such relevant evidence which a reasonable mind might accept as adequate to support a finding.” York Terrace/Beverly Enterprises v. Work[632]*632men’s Compensation Appeal Board (Lucas), 140 Pa.Commonwealth Ct. 75, 79 n. 5, 591 A.2d 762, 764 n. 5 (1991). The test of sub-stantiality will fail only when it is clear that the evidence contested is so inadequate and contradictory that administrative findings based upon it become mere conjecture. Yockey v. Workmen’s Compensation Appeal Board (Pacemaker Driver Service), 79 Pa.Commonwealth Ct. 250, 468 A.2d 1199 (1983). The referee, as fact finder, has exclusive power over questions of credibility and evidentiary weight and thus may accept or reject the testimony of any witness, in whole or in part. Mardee Sportswear v. Workmen’s Compensation Appeal Board (Franglo, Inc.), 98 Pa.Commonwealth Ct. 327, 511 A.2d 905 (1986).

Since our legal conclusion must be based on the referee’s findings, a recitation of the referee’s findings of fact is mandated:

4. Claimant testified on his own behalf that on 12/31/89, he was a member of the Avondale Borough Fire and Ambulance Companies as a volunteer firefighter and EMT.
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6. On 12/31/89 and 1/1/90, the Avondale Fire and Ambulance Companies participated in the Dial-A-Ride Program sponsored by the Southern Chester County Medical Center whereby local fire and ambulance company personnel would be on call New Year’s Eve and New Year’s Day to take party goers and inebriated individuals home safely.
7. Claimant volunteered for duty with the Dial-A-Ride Program and began his duty at the firehouse at 11:00 p.m. on 12/31/89. Claimant’s shift was scheduled to last until 6:00 a.m. on 1/1/90.
8. At midnight, 12/31/89, Claimant and another crew member drove in Claimant’s father’s pickup truck to Perkins Restaurant, located approximately one mile from the firehouse, so that they could eat lunch.
9. Claimant was required to use his own vehicle since the ambulance and fire company vehicles were not authorized to be used, except for emergencies or for the Dial-A-Ride transports.
10. While on lunch break, Claimant carried with him a portable two-way radio and a pager since he was on-call for the Dial-A-Ride Program.
11. Shortly after he arrived at Perkins Restaurant, Claimant met Pax Spruntz, a volunteer fireman with West Grove Fire Company who also worked at Perkins Restaurant.
12. Mr. Spruntz asked Claimant to drive him to Penn Supreme convenience store, located approximately % to !/¿ mile from Perkins Restaurant, in order for Mr. Spruntz to look for his lost pager that he thought he left in the convenience store.
13. Claimant intended to immediately return to the restaurant to eat his lunch after he finished helping Mr. Spruntz locate the pager at the convenience store.
14. Claimant took his portable radio and pager with him to the convenience store.
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16. After waiting for about five minutes, Claimant got out of the truck with the engine still running and went to the doorway of the store to show the storekeeper what a pager looked like in an effort to assist Mr. Spruntz in finding his pager.
17.

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654 A.2d 629, 1995 Pa. Commw. LEXIS 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keiter-v-workmens-compensation-appeal-board-pacommwct-1995.