Cook Bitten by Dog in Scope and Course of Job for PA Workers’ Comp

We often see cases addressing whether a work injury in Pennsylvania was suffered while the injured worker was in the “scope and course” of his or her job. Usually, this situation falls into one of two categories – either whether it is part of the commute to or from work, or whether it is taking a break during the work day. Each of these situations has been addressed by the PA appellate courts, and by this blog, on many occasions. One thing all of these cases have in common is how specific each case, and each decision, is to the facts of the individual case.

A nice example of how the cases are so specific to the facts of each injury can be seen in 1912 Hoover House Restaurant v. Workers’ Compensation Appeal Board (Soverns). Here, a cook was taking a “smoke break.” The employer had put an ashtray outside the restaurant for these smoke breaks, and the injured worker was within a few feet of that ashtray when he was hurt. The employer allowed these breaks, and had no specific policy regarding the details. When taking his break, the father of a co-employee brought his dog over. The injured worker carefully offered his hand to the dog, and then petted the dog. Unfortunately, the dog proceeded to bite the injured worker’s face, causing permanent facial injury.

After a Claim Petition was litigated, the Workers’ Compensation Judge (WCJ) granted the Petition, finding that the injured worker was in the scope and course of his job at the time of the injury. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB) [after being first sent back to the WCJ for a clarification on the wages earned by the injured worker].

The Commonwealth Court of Pennsylvania also affirmed the decision. Though the injured worker had been warned the dog was prone to snapping at people, the action of petting the dog was not so inherently dangerous to remove him from the scope and course of working. The injured worker testified credibly that he asked permission of the owner, and then offered his hand carefully before actually petting the dog.

The Court also rejected the contention that petting the dog was such a departure from the injured worker’s job that he could not have remained in the scope and course of the job. Citing a past case, the Court noted:

“However, it is well established that ‘neither small temporary departures from work to administer to personal comforts or convenience, nor inconsequential or innocent departures break the course of employment.'”

It was found by the Court that the act of petting the dog, on a relatively short break, within three feet of the ashtray provided by the employer for that specific purpose, was nothing more than this brief, inconsequential, departure, leaving the injured worker still in the scope and course of his employment.