Pennsylvania: 5-Minute Deviation Defeated Workers’ Comp Claim

Some years ago, my mentor, Arthur Larson, when commenting upon the issue of deviations within the workplace, wrote that courts generally recognize “that human beings do not run on tracks like trolley cars” [Larson’s Workers’ Compensation Law, § 17.06[3]]. That is to say most courts have understood that during the normal work day, a worker does not move into and out of the course of the employment merely because he or she ceases–for a short duration of time–to perform the worker’s assigned specific work duties. Accordingly, benefits are generally awarded for injuries sustained while going to the lavatory, getting a sip of water, sitting down to take a rest break, daydreaming, reading a personal letter, and the like.

It Isn’t the “Shortness” of the Deviation That Controls

There is sometimes a tendency to distill the rule down a bit, to say that short, temporary departures from the work routine do not amount to a sufficient deviation to defeat compensability of an workers’ compensation claim. Practitioners should be careful with such a distillation, however. It isn’t so much the shortness of the time that controls; it’s the fact that such departures from the work routine are generally insignificant in nature. Where the departure, although short, is abrupt and where the employee’s true attentions are turned elsewhere, the result can be quite different. This important point is illustrated in a recent Pennsylvania decision, Trigon Holdings, Inc. v. Workers’ Comp. Appeal Bd. (Griffith), 2013 Pa. Commw. LEXIS 312 (Aug. 7, 2013), in which the Commonwealth Court held that under the circumstances of the case, an on-the-premises departure from the work routine lasting just five minutes was still significant enough to bar recovery of workers’ compensation benefits to an injured worker. It is the nature of the worker’s activity during the deviation and the direction of his or her attention that controls–not the duration of time spent within the departure.

The Recent Pennsylvania Case

Trigon Holdings employed claimant for some 7 1/2 years as a gang leader. Its business exclusively involved the finishing of medical or aerospace industry parts. Claimant’s job was to make sure that the employer’s machines were operating properly during his work shift. Approximately two hours into the midnight shift one evening, after ensuring that the employer’s machines were running smoothly, Claimant told some of his fellow employees in the machine shop that he would be in the tool and die room for “a couple of minutes” if they needed him. He walked a distance of 20 to 25 yards from the machine shop to a separate part of the employer’s premises that contained several lathes. Within roughly 5 minutes, while polishing a bolt for his child’s go-cart with an emery cloth, Claimant’s left thumb was drawn into a lathe, resulting in the skin and tissue being removed down to the bone. He was taken to the emergency room and thereafter underwent procedures to rebuild and rehabilitate his thumb. He sought workers’ compensation benefits and the employer denied the claim.

After a hearing, the workers’ compensation judge granted Claimant’s petition for benefits and the Appeal Board affirmed. The employer appealed, contending that there was no evidence that Claimant’s injuries had occurred within the course of the employment. The employer contended in pertinent part that Claimant had deviated from his employment at the time of the injury and that he should not, therefore, recover. Reversing the Appeal Board, the Commonwealth Court held that regardless of whether the employer permitted Claimant to conduct personal work on its machinery during work hours, and regardless of whether Claimant was gone from his post for only five minutes, the departure from the course of his employment was “strongly marked and not trivial.” It was neither “insignificant” nor “minor in influence,” and the WCJ erred, therefore, in awarding benefits.

The Commonwealth Court’s Reasoning

The Commonwealth Court initially observed that under § 301(c)(1) of the state’s Workers’ Compensation Act, in order to be compensable, an injury must have occurred within the course of the Claimant’s employment, and must be causally related thereto. Quoting the Pennsylvania Superior Court, Henry v. Lit Bros., the court continued:

An employe is entitled to compensation for every injury received on the premises of his employer during the hours of employment, regardless of whether he is actually required to be at the particular place where the injury occurred, so long as there is nothing to show that he had abandoned the course of his employment or was engaged in something wholly foreign thereto.

193 Pa. Super. 543, 165 A.2d 406, 409 (Pa. Super. 1960) (emphasis added by the Commonwealth Court).

The Commonwealth Court added that the WCJ found that Claimant “had a couple of minutes to spare[,] so he went back to the tool and die department to polish a bolt for his child’s go-cart ….” Claimant’s injury, therefore, occurred after he made a decision to leave his work responsibilities and while he was performing a personal task unrelated to his job duties and while using a dangerous piece of equipment on the employer’s premises during work hours. In order to be compensable, Claimant’s activity at the time of his injury had to be either “in furtherance of” the employer’s business or affairs, or “caused by” the operation of the employer’s business or affairs (quoting U.S. Airways v. Workers’ Comp. Appeal Bd. (Dixon), 764 A.2d 635, 640 (Pa. Cmwlth. 2000)). According to the Commonwealth Court, Claimant could meet neither requirement.

Acknowledging that “course of employment” embraced intervals of leisure within regular hours of the working day, as well as “momentary departures from the work routine,” the court indicated that there was no fixed standard by which to make such a determination. In spite of that lack of standard and in spite, further, of the liberal interpretation allowed under the state’s Workers’ Compensation Act, the Commonwealth Court nevertheless held the WCJ’s conclusion that Claimant’s injury occurred during “a small temporary departure from work [that did] not break the course of employment” was baseless. “Temporary” or not, according to the Commonwealth Court, at the moment of his injury, Claimant had abandoned his work responsibilities and was deliberately engaged in an activity wholly foreign thereto. The Board, therefore, had erred in affirming the WCJ’s determination.

Take-away

This was a close case. Important to the Commonwealth Court’s decision was the fact that the WCJ had found that prior to taking the short break to polish his child’s go-cart part, Claimant had carefully checked the employer’s machinery. His work for the moment done, Claimant was free to turn to something completely outside those duties.

The court did not state this, but implicit in many so-called “personal comfort doctrine” cases–those that involve short rest breaks, snacks, visiting the toilet, and the like–the employee’s ability to work is enhanced. Freed from the “growling stomach” or the parched throat, the employee can redirect his or her attention with vigor. Such was not the case for the departure in the instant case. The child’s project had nothing to do with the employment. The employee’s decision to pursue that enterprise, while short in duration, was a departure from the course of the employment in the mind of the Commonwealth Court.