U.S. Airways v. Workers' Compensation Appeal Board

764 A.2d 635, 2000 Pa. Commw. LEXIS 607
Commonwealth Court of Pennsylvania·Decided November 15, 2000·Published·Cited by 41 cases

Opinions

MIRARCHI, Jr., Senior Judge.

U.S. Airways (Employer) and its insurance earner appeal from the order of the Workers’ Compensation Appeal Board (Board) that affirmed, as modified, the decision of the workers’ compensation judge (WCJ) awarding Glenda Dixon (Claimant) total and partial disability benefits for a closed period and suspending her benefits thereafter. Claimant also filed a cross-appeal from the Board’s decision.1

On appeal, we are asked to determine (1) whether Claimant established that she sustained an injury in the course of her employment; (2) whether the WCJ’s decision to suspend Claimant’s benefits is supported by the record; and (3) whether Claimant’s benefits may be suspended based on her acceptance of a severance package offered by Employer as part of its reorganization plan. We affirm the order of the Board to the extent that it affirmed the WCJ’s grant of total and partial disability benefits for the closed period; vacate the order affirming the WCJ’s suspension of Claimant’s benefits as modified; and remand this matter to the WCJ to determine if and when Claimant’s benefits should be suspended.

I.

Claimant was employed as a unit supervisor at Employer’s Reservations Service which occupied the fifth floor of Building Seven, Parkway Center (Parkway Center) located in Pittsburgh, Pennsylvania. On November 27, 1996, a day before Thanksgiving Day, Claimant sustained an injury when she slipped and fell on the wet tile floor in the first floor hallway of the Parkway Center between the lobby area and a Chinese restaurant located at the real’ corner of the first floor. At the time of the injury, Claimant was returning to her office on the fifth floor of the building after picking up takeout lunch from the Chinese restaurant.

On June 17, 1997, Claimant filed a claim petition, alleging that she sustained a work-related injury in the nature of contusions, strain and sprain of buttocks, a back injury, sciatica pelvic trauma, S-l radiculi-tis and myofascial pain syndrome. In its answer, Employer denied Claimant’s allegations and asserted, inter alia, that Claimant did not sustain the injury in the course of her employment.

To support the claim petition, Claimant testified as follows at hearings held before the WCJ. As the unit supervisor, which is the first level management position, Claimant was responsible for overseeing and monitoring activities of fifteen to twenty reservation agents, keeping track of their payroll and time record, serving on work teams when necessary, and attending management classes. She usually worked in the dayshift for ten to twelve hours a day, five days a week. As the unit supervisor, Claimant was expected to be present and visible in the office during the entire shift to assist the agents and handle any problems they may encounter.

[638] Due to the nature of the operation of the Reservations Service, the supervisors did not have a fixed schedule for lunch break. Moreover, under Employer’s policy the supervisors were prohibited from leaving the building for lunch break, if no other supervisor was on duty on a particular day. There was a lunchroom on the fifth floor of the building occupied by the Reservations Service, but Employer did not operate a cafeteria or a dining facility in the building. When the supervisors could not take regular lunch break due to their work schedule or work load, they were permitted to order takeout lunch from one of two restaurants located on the first floor of the building and continue to work or be available to assist the agents, while eating lunch in the lunch room.

On November 27, 1996, the rainy day before Thanksgiving, Claimant was busy at work because of the approaching holidays. Claimant decided to continue to work without taking lunch break because she had some pressing matters on her desk needed to be taken care of over the noon hour. After asking her coworker if she wanted to order lunch, Claimant called the Chinese restaurant on the first floor of the building and ordered takeout food. Claimant then went down to the first floor to pick up the ordered food. After getting off the elevator in the lobby of the first floor, she walked down a long hallway, turned right at the end of the hallway and then went through a small open doorway to reach the Chinese restaurant.

After picking up the takeout lunch, Claimant began walking toward the elevator in the lobby to return to her office. Claimant then slipped and fell on the wet tile floor in the hallway, landing directly onto her left buttock. After the fall, Claimant immediately experienced pain. Upon her return to her office, she could not eat lunch due to the pain. Later that day, Employer’s office manager filled out an occupational injury report with Claimant. Despite the sharp pain in her buttocks radiating down her legs to her toes, Claimant continued to work until December 2, 1996. On December 3, 1996, Claimant saw her physician, Nathan Bennett, M.D., who stated in the medical report given to Employer that she was not able to return to work due to the injury. Claimant was thereafter treated by Dr. Bennett and other physicians.

On February 18, 1997, Claimant returned to work on a part-time basis working for four hours a day, five days a week. Claimant’s condition worsened after her return to work, and she stopped working on April 14, 1997 after seeing Dr. Bennett and continued to receive medical treatment thereafter. At that time, Employer was in the process of reorganization. On May 31, 1997, Claimant decided to accept a severance package offered by Employer as part of its reorganization plan and received severance benefits in the amount of $26,052.01. As of the hearing on August 26, 1997, Claimant was forty-three years old.

After leaving her employment with Employer, Claimant began working at a craft store opened by her husband on February 25, 1997 and jointly owned by her and her husband. Her activities at the store were very limited and did not involve lifting or a lot of bending. She could stand and sit as she chose. Claimant worked at the store for up to sixteen hours a week at first and up to twenty hours a week by October 1997. The business did not generate any profits, and Claimant and her husband did not draw any compensation from the business. Claimant’s husband testified corroborating Claimant’s testimony regarding her limited activities at the store.2 He testified that Claimant could no longer do household chores or enjoy active lifestyle after the work injury.

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U.S. Airways v. Workers' Compensation Appeal Board, 764 A.2d 635, 2000 Pa. Commw. LEXIS 607 (Pa. Ct. App. 2000).

764 A.2d 635 (U.S. Airways v. Workers' Compensation Appeal Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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