                3IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Meshoppen Transport, Inc.,                      :
                Petitioner                      :
                                                :
                v.                              : No. 334 C.D. 2018
                                                : Submitted: July 13, 2018
Workers’ Compensation                           :
Appeal Board (Pfister),                         :
                  Respondent                    :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                        FILED: October 17, 2018

                Meshoppen Transport, Inc. (Employer) petitions for review of an
adjudication of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of the Workers’ Compensation Judge (WCJ) to grant Jean Marie Pfister’s
(Claimant) fatal claim petition. The sole issue before this Court is whether the Board
erred in determining that Claimant’s husband, Robert Pfister (Decedent), was acting
in the course and scope of his employment with Employer at the time of his heart
attack. Discerning no error, we affirm the Board.
                Claimant filed a fatal claim petition pursuant to the Workers’
Compensation Act (Act),1 alleging that Decedent suffered a fatal heart attack on
September 23, 2015, following an Employer-required medical examination.
Employer denied all allegations, and hearings were held before the WCJ.



1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.4, 2501–2708.
             With the agreement of the parties, the WCJ bifurcated the proceeding
to decide first whether Decedent was acting within the course and scope of his
employment at all relevant times. The parties stipulated that Decedent worked for
Employer as a truck driver and that this job required him to maintain a valid
commercial driver’s license. Stipulation of Facts, ¶2; Reproduced Record at 16a
(R.R. __). On September 23, 2015, Decedent went to WorkWell Occupational
Services (WorkWell) to undergo a medical examination for his commercial driver’s
license. Employer scheduled the examination for Decedent. Id., ¶3; R.R. 16a.
             As part of the examination, Decedent was asked to perform “vigorous
exercise for one minute.” Id., ¶4; R.R. 17a. As a result, his heart rate went from 76
at rest to 100. WorkWell’s report indicates that Decedent had a “regular heart rate
post exercise.” Id. The examination took 15 to 25 minutes.
             Following the examination, Decedent drove his company truck to Dr.
Edward G. Zurad’s office so that Dr. Zurad could sign his driver’s license
paperwork. Decedent then drove to one of Employer’s locations to pick up a load
for delivery. As he exited his truck, Decedent fell and landed on his elbows. He
reported to a co-worker that he felt dizzy and nauseous. Decedent “passed out” for
a minute or two. Id., ¶8; R.R. 17a. His co-workers dialed 911 but cancelled the call
after Decedent insisted that “he was okay.” Id. Decedent stated that he had not eaten
breakfast and was given water and a muffin. A co-worker drove Decedent back to
Dr. Zurad’s office, where he collapsed and was admitted to the hospital. Decedent
was diagnosed with an acute myocardial infarction, and he died two days later.
             Claimant testified that Decedent did not exercise regularly. He worked
over the weekend, and “[s]ometimes he’d be gone two, three weeks at a time.” Notes
of Testimony (N.T.), 5/23/2016, at 11-12; R.R. 54a-55a.         Claimant described


                                         2
Decedent’s lifestyle as “sedentary”; he spent most of his free time at home sitting
and relaxing. Id. at 11; R.R. 54a.
             Employer presented the testimony of Patrick Musheno, its safety
director. He stated that Decedent worked for Employer as an “over-the-road” truck
driver for 10 to 12 years, transporting goods “anywhere in the 48 states.” N.T.
7/11/2016, at 10; R.R. 68a. To do this work, Decedent was required to undergo a
“[United States] Department of Transportation physical” every year. Id. at 18; R.R.
76a. Musheno testified that Employer scheduled and paid for the September 23,
2015, physical examination for Decedent. Employer selected WorkWell as its
medical provider to conduct physical examinations for its employees and report the
results to Employer. Musheno explained that Decedent was free to schedule an
examination at a place and time of his choosing; however, Employer would
reimburse Claimant for the cost of the examination only if it was done at WorkWell.
Id. at 27; R.R. 85a. Musheno testified that Decedent was not paid for his time while
attending the examination.
             By interlocutory order of September 9, 2016, the WCJ concluded that
Decedent was acting within the course and scope of his employment at the time he
suffered the heart attack. By order of March 2, 2017, the WCJ granted Claimant
fatal claim benefits. The WCJ found, inter alia, that Decedent was required as a
condition of his employment to maintain a commercial driver’s license. The WCJ
noted that Musheno “acknowledge[d] and agree[d] that [D]ecedent was required to
attend the [physical] examination at WorkWell – paid for by the [E]mployer herein
– in order for the [D]ecedent to maintain his [commercial driver’s] license and
remain a truck driver for [E]mployer [].” WCJ Decision at 5; Findings of Fact, ¶8.




                                         3
Further, Employer scheduled the examination for Decedent.2 Employer appealed to
the Board. Affirming the WCJ’s decision, the Board held that Decedent was
furthering Employer’s business by attending the medical examination. Employer
then petitioned for this Court’s review of the Board’s adjudication.
              On appeal,3 Employer argues that the Board erred in concluding that
Decedent’s heart attack occurred during the course and scope of his employment.
Decedent attended the medical examination outside his work hours, and he was not
paid for his time at the examination. Citing Reichert v. Workers’ Compensation
Appeal Board (Foxdale Village), 126 A.3d 358 (Pa. Cmwlth. 2015), Employer also
observes that Decedent “could have refused to take the [] exam and opt not to
continue his work as an over the road truck driver.” Employer Brief at 12. Further,
Decedent was free to schedule an examination with any medical provider. Employer
maintains that it was the federal regulations, not Employer, that required Decedent
to take the physical examination to maintain his commercial driver’s license.
Employer asserts that the Board and the WCJ mischaracterized Musheno’s
testimony in finding that Employer required Decedent to attend the examination.
              To be eligible for compensation, an injured employee must establish
that his injury occurred in the course of employment and that it was related thereto.



2
  The WCJ further found Decedent’s fatal heart attack was caused by the vigorous exercise he
performed during the medical examination at WorkWell. The WCJ credited the testimony of Dr.
Raphael Bonita, M.D., who opined that Claimant’s physical exertion during the vigorous exercise
caused a plaque rupture, which led to an occlusion and caused Decedent’s fatal myocardial
infarction. The Board affirmed the WCJ’s finding, which Employer does not challenge before this
Court.
3
  This Court’s review of a workers’ compensation adjudication determines whether an error of law
or a constitutional violation was committed or whether the findings of fact are supported by
substantial, competent evidence. Myers v. Workers’ Compensation Appeal Board (University of
Pennsylvania and Alexsis, Inc.), 782 A.2d 1108, 1110 n.1 (Pa. Cmwlth. 2001).
                                               4
Section 301(c) of the Act, 77 P.S. §411.4 Injuries sustained by an employee while
“actually engaged in the furtherance of the business or affairs of the employer” are
compensable whether the injuries occurred upon the employer’s premises or
elsewhere. 77 P.S. §411; Penn State University v. Workers’ Compensation Appeal
Board (Smith), 15 A.3d 949, 952 (Pa. Cmwlth. 2011). The operative phrase
“actually engaged in the furtherance of the business or affairs of the employer” is
given a liberal construction. Southeastern Pennsylvania Transportation Authority
v. Workers’ Compensation Appeal Board (McDowell), 730 A.2d 562, 564 (Pa.
Cmwlth. 1999). Whether an employee is acting in the course of employment at the
time of an injury is a question of law, which must be determined based on the
findings of fact made by the WCJ. Id.
                 When determining whether an employee is furthering an employer’s
business or affairs when he sustains an injury during non-work hours, we consider
whether the employer encouraged the activity at issue; whether the activity furthered
a specific interest of employer; and whether the activity was necessary to maintain
the skills required by the employer’s job. Pinn v. Workers’ Compensation Appeal
Board (Hemlock Girl Scout Council), 754 A.2d 40, 43 (Pa. Cmwlth. 2000).
                 Precedent on course and scope of employment informs our analysis. In
Hemmler v. Workmen’s Compensation Appeal Board (Clarks Summit State


4
    Section 301(c) provides in pertinent part:
        The terms “injury” and “personal injury,” as used in this act, shall be construed to
        mean an injury to an employe, regardless of his previous physical condition, except
        as provided under subsection (f), arising in the course of his employment and
        related thereto…. The term “injury arising in the course of his employment,” as
        used in this article … shall include all … injuries sustained while the employe is
        actually engaged in the furtherance of the business or affairs of the employer,
        whether upon the employer’s premises or elsewhere….
77 P.S. §411.
                                                 5
Hospital), 569 A.2d 395 (Pa. Cmwlth. 1990), a hospital employee was injured during
his lunch break while playing basketball with co-workers in a gym on the employer’s
premises. The evidence demonstrated that the employer encouraged its employees
to participate in these physical activities to improve their health, relieve work-related
stress and to promote a better mental attitude in the performance of their work. The
employer posted information on the bulletin board encouraging employees to engage
in sports activities, and employees regularly used the employer’s gymnasium during
breaks to play basketball. Based upon this evidence, this Court held that the claimant
was engaged in an activity in furtherance of the employer’s business or affairs, and,
therefore, was in the course of his employment when he was injured.
             In Mann v. City of Philadelphia, 563 A.2d 1284 (Pa. Cmwlth. 1989), a
lifeguard employed by the city drowned while he was swimming during his lunch
break in the city pool, which was closed at the time. Because the claimant was
required to maintain his swimming skills for the purpose of Red Cross certification
and was permitted to use the pool at the time of his drowning, this Court concluded
that he was furthering the employer’s interest at the time of the incident regardless
of whether the swimming activity also “furthered his personal interest.” Id. at 1287.
             Here, it is undisputed that Decedent was required to undergo an annual
physical examination to maintain his commercial driver’s license. Musheno testified
that the physical examination was necessary for Decedent to remain an interstate
driver for Employer. Although Decedent was free to schedule an examination at a
place and time of his choosing, Employer would pay for the examination only if
done by WorkWell. Further, Musheno testified that Employer received a copy of
Decedent’s examination results from WorkWell. These facts show that Decedent
attended the physical examination at WorkWell because Employer encouraged it so


                                           6
that he could renew his commercial driver’s license. We conclude that Decedent
was engaged in an activity in furtherance of Employer’s business during the physical
examination at WorkWell and, therefore, the course of his employment when he had
his heart attack.
             Employer contends that Decedent attended the physical examination
not “solely” in the furtherance of Employer’s business but, rather, to allow “the
[D]ecedent to continue working as a truck driver for any employer willing to hire
him.” Employer Brief at 13, 17. In Mann, 563 A.2d 1284, the lifeguard was required
to meet certain physical fitness standards to maintain his Red Cross certification.
Likewise, here Decedent had to attend the physical examination to maintain his
commercial driver’s license, which was a condition of his continued employment as
an interstate truck driver. As we held in Mann, the relevant inquiry is whether
Decedent furthered Employer’s business or affairs at the time he suffered the heart
attack; it is immaterial whether the activity also furthered Decedent’s personal
interest in continued employment. Id. at 1287.
             Employer further argues that the Board erred by distinguishing the
subject case from Reichert, 126 A.3d 358. In that case, the claimant was required to
undergo a functional capacity evaluation to be allowed to return to work following
a period of non-work-related disability.     The claimant was injured during the
evaluation. The Board denied the claimant workers’ compensation benefits, and this
Court affirmed. We stated that “an injury that arises while participating in a pre-
requisite for employment is only work-related insofar as the event has the potential
to alter the employment relationship by allowing the claimant to return to
employment, but it does not arise in the course of employment.” Reichert, 126 A.3d
at 364.    Employer argues that, similar to the functional capacity evaluation,


                                         7
Claimant’s physical examination was a prerequisite for employment. Decedent did
not have to take the examination if he “opt[ed] not to continue his work.” Employer
Brief at 12.
               Reichert is inapposite. The claimant in Reichert had been out of work
for a significant period of time. She was held ineligible for workers’ compensation
benefits because she did not prove that she was an employee at the time of her injury.
We emphasized that, to be entitled to workers’ compensation benefits, the claimant
must prove that an employer/employee relationship exists. Reichert, 126 A.3d at
361. This is not an issue in the instant case. Employer does not dispute that
Decedent was an active employee and had been for over a decade at the time he
suffered the heart attack. Decedent took the physical examination not to “return to
employment” but, rather, to remain employed as a truck driver for Employer. Id. at
364. We reject Employer’s argument based on Reichert.
               For all of the foregoing reasons, we affirm the Board’s order.
                                     ________________________________________________
                                     MARY HANNAH LEAVITT, President Judge




                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Meshoppen Transport, Inc.,             :
                Petitioner             :
                                       :
            v.                         : No. 334 C.D. 2018
                                       :
Workers’ Compensation                  :
Appeal Board (Pfister),                :
                  Respondent           :


                                  ORDER


            AND NOW, this 17th day of October, 2018, the order of the Workers’
Compensation Appeal Board dated February 14, 2018, in the above-captioned matter
is hereby AFFIRMED.
                                 _______________________________________________
                                 MARY HANNAH LEAVITT, President Judge
