“Dog Bites Man”: Pennsylvania Court Affirms Award for Worker Bitten By Co-Worker’s Canine

Yesterday, a Pennsylvania appellate court affirmed an order by the state’s Workers’ Compensation Appeal Board awarding workers’ compensation benefits to a worker who sustained facial lacerations and permanent scarring when he was bitten in the face by a co-worker’s dog [1912 Hoover House Restaurant v. Workers’ Comp. Appeal Bd. (Soverns), No. 309 C.D. 2014, 2014 Pa. Commw. LEXIS 530 (Nov. 10, 2014)]. The appellate court indicated that in spite of the fact that (a) the worker was on a smoke break at the time of his injury, and (b) petting the co-worker’s dog had nothing to do with the injured worker’s normal duties as a part-time line cook, the Board could conclude that the injuries arose out of and in the course of the employment since the employer’s premises included a break area where employees regularly smoked cigarettes, the injured employee was within three feet of an ashtray tower supplied by the employer, and that although petting the dog was not part of the line cook’s employment, small temporary departures from work did not break the course of the employment rule.

Distinguishable Earlier Trigon Holdings Decision

The appellate court distinguished the instant case from Trigon Holdings, Inc. v. Workers’ Comp. Appeal Bd. (Griffith), 74 A.3d 359 (Pa. Commw. Ct. 2013), where the worker sustained injuries while polishing a bolt for his child’s go-cart, while he was within the employer’s premises using the employer’s tools. In Trigon Holdings, the injured worker checked to determine that all his work was complete, told his co-workers that he was going to the tool and die room for a few minutes, walked the 20 to 25 feet to the room and polished the bolt, sustaining injuries. The court there held that his departure was a “pronouced and significant” divergence from his duties.

Similar to Situation in The Baby’s Room Case

In the instant case, said the court, the line cook did not actively disengage from his work to pet the dog. The facts of the case were similar to those in The Baby’s Room v. Workers’ Comp. Appeal Bd. (Stairs), 860 A.2d 200 (Pa. Commw. Ct. 2004), wherein the claimant was injured while working as a furniture delivery person when, after delivering furniture at a residence, he “suddenly jumped up to touch a basketball rim that was on the driveway of the property of the delivery.” The claimant’s hand slipped off the rim and he fell backwards, hitting his head on the concrete payment. As a result, he suffered a traumatic brain injury. The court there agreed that claimant’s actions were “an inconsequential departure from delivering furniture” for his employer.

Petting the dog was similar to touching the rim, indicated the court. The departure was not comparable to that in Trigon Holdings. The initial smoke break did not interfere with the line cook’s work duties and had been found to be acceptable by the employer. The additional step of petting the dog was an inconsequential departure for the cook.

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