          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Eric Hayes,                                     :
                              Petitioner        :
                                                :
               v.                               :   No. 1053 C.D. 2019
                                                :   Submitted: January 24, 2020
Workers’ Compensation Appeal                    :
Board (US Airways Inc.),                        :
                        Respondent              :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: July 28, 2020


      Eric Hayes (Claimant) petitions for review of an order of the Workers’
Compensation Appeal Board (Board), dated July 30, 2019. The Board affirmed the
order of a Workers’ Compensation Judge (WCJ), denying Claimant’s claim petition
against US Airways, Inc. (Employer) based upon a finding that Claimant failed to
prove that he was injured in the course and scope of his employment as required by
Section 301(c)(1) of the Workers’ Compensation Act (Act).1 We now affirm.
      Claimant worked for Employer as a customer service representative at
Philadelphia International Airport (Airport). (Reproduced Record (R.R.) at 51a,
61a.) In order to get to work, Claimant would drive his own vehicle to the Airport

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
and would park in one of several parking lots. (Id. at 60a-61a.) Two of those parking
lots—the Bartram Avenue lot and the Cargo City lot—are owned, operated, and
maintained by the City of Philadelphia/Division of Aviation (DOA) and are
designated for the use of all Airport employees free of charge. (Id. at 122a.) A
public shuttle bus transports individuals who park at those designated lots to and
from the Airport’s terminals. (Id. at 53a, 62a.) Instead of parking at one of those
designated lots, Claimant would often park at a third lot—the International Plaza
lot—because, as Claimant explained, it is within walking distance of the Airport’s
Terminal A, where Claimant would clock in for work. (Id. at 53a.) The International
Plaza lot is privately owned and is not affiliated with the Airport or designated for
Airport employee parking. (Id. at 122a.)
      On May 13, 2017, Claimant was walking from the International Plaza lot to
report to work at the Airport when he tripped and fell, injuring his right elbow.
(Id. at 52a, 56a.) The injury required surgery and prevented Claimant from working
until July 11, 2017. (Id. at 58a.) On August 2, 2017, Claimant filed his claim
petition, alleging that he sustained a right arm sprain and elbow fracture while
working for Employer on May 13, 2017, and that he was disabled as a result thereof.
(Id. at 2a-4a.) Employer filed an answer in which, as it clarified during an initial
hearing before the WCJ, Employer denied that Claimant was injured in the course
and scope of his employment with Employer. (Id. at 7a-9a.; Certified Record (C.R.),
Item No. 11 at 4.)
      In support of his claim petition, Claimant presented his own deposition
testimony. During his deposition, Claimant testified that his assigned shift on
May 13, 2017, required him to clock in for work at 3:30 a.m. at Terminal A.
(R.R. at 52a.) Claimant explained that he typically parked in the International Plaza


                                           2
lot instead of the designated Airport employee lots served by the public shuttle bus,
because the shuttle bus’s unreliable schedule often caused him to report late to work
and from the International Plaza lot he could just walk to Terminal A to clock in.
(Id. at 53a.) He stated that the walk from the International Plaza lot to Terminal A
was “about a block” and that he did not park in the general public lot that is even
closer to his workplace because it would require him to pay the parking cost himself.
(Id.)
        Claimant testified further that he understood the International Plaza lot to be
open to all Airport employees but not to the general public. (Id.) He stated that “it
was . . . common knowledge that if you had a [sic] early start, . . . [you would] use
that lot because it was the most convenient lot.” (Id. at 54a.) He testified that he
observed Employer’s managers and supervisors parking in the International Plaza
lot for work “every single day.” (Id. at 65a.) Claimant identified those managers
and supervisors based on their distinctive attire and, in a few instances, based on
recognizing specific individuals with whom he worked. (Id. at 54a.) He also stated
that “[e]verybody . . . [f]rom customer service to the ramp, and even TSA,”2 parked
at the International Plaza lot. (Id. at 65a.) Claimant confirmed that two unpaved
footpaths are “carved out from the [International Plaza] lot through the trees to the
roadway,” where each footpath meets a guardrail running along the street.
(Id. at 55a.) The first footpath has a section of the guardrail cut away to allow
pedestrians to pass through to the street, whereas pedestrians using the second
footpath must climb over the guardrail to reach the street. (Id.)
        Claimant explained that, at around 3:25 a.m. on May 13, 2017, he parked his
vehicle in the International Plaza lot and began walking toward Terminal A via the

        2
            TSA refers to the Transportation Security Administration.

                                                  3
second unpaved footpath. (Id. at 56a, 63a.) As he attempted to climb over the
guardrail onto the roadway, his right foot caught on the guardrail and his left foot
slipped, causing him to fall and sustain the disabling injury at issue in this case.
(Id. at 56a.) Claimant emphasized that the footpath he used was “the [footpath]
that most people . . . take” to walk from the International Plaza lot to Terminal A.
(Id. at 55a.) In fact, Claimant described several photographs that show a person
climbing over the same guardrail to access the footpath on the way to the
International Plaza lot. (Id. at 55a-56a.)
      On cross-examination, Claimant acknowledged that the DOA provided him
access to the Bartram Avenue and Cargo City lots for his use free of charge,
including use of the public shuttle bus from those lots to the Airport. (Id. at 62a-63a.)
He also confirmed that the DOA issued him a SIDA3 badge allowing access to those
employee lots and that Employer never provided him with any means of parking in
other lots. (Id. at 62a.) He stated that, to his knowledge, Employer neither provides
a parking program nor pays for his parking. (Id.) He reiterated, however, that he
usually parked in the International Plaza lot to avoid difficulties with the public
shuttle bus. (Id. at 61a.) He stated that it was only after the May 13, 2017 injury
that he became aware that the International Plaza lot was designated only for
employees working in adjacent office buildings, not those employees working in
Terminal A, and that he was not permitted to park there. (Id. at 61a, 65a.) He denied
that anyone, including Employer and the DOA, had ever given him or other
employees specific directives about where to park. (Id. at 65a.)
      In opposition to Claimant’s claim petition, Employer presented the affidavit
of Anthony Stanley, Employer’s director of planning and administration.

      3
          “SIDA” stands for “Secure Identification Display Area.” (R.R. at 62a.)

                                                4
(Id. at 122a.) He stated that the DOA has provided and designated the Bartram
Avenue and Cargo City lots for Airport employees to use free of charge, but
employees may choose to park “in any of the ‘paid’ parking lots in and around the
[A]irport, albeit at their own cost.” (Id.) He emphasized that the International Plaza
lot is a private lot that is not affiliated with the Airport in any way and that signs at
the entrance to the International Plaza lot (which were present on the date of
Claimant’s injury) provide that only employees working in the adjacent office
buildings may use that lot. (Id.) Mr. Stanley claimed that Employer had not
permitted its supervisors or managers to use the International Plaza lot and that there
would be “no reason for them to do so” because they were provided with parking
elsewhere. (Id. at 122a-23a.) Finally, he stated that, at some time in 2016, Employer
became aware that its employees were unlawfully parking in the International Plaza
lot and verbally instructed them not to do so. (Id. at 123a.) On June 9, 2017, after
Claimant’s May 13, 2017 injury, Employer sent an email to all of its employees with
the same instruction. (Id.)
      By decision and order dated August 28, 2018, the WCJ denied Claimant’s
claim petition, concluding that Claimant failed to prove that he sustained the subject
injury in the course and scope of his employment. (WCJ Decision at 8.) In so doing,
the WCJ reasoned that the location where Claimant’s injury occurred was not within
the ownership, control, or business operation area of Employer.              (Id. at 7.)
Recognizing that this alone is not determinative, however, the WCJ went on to
conclude that the location of Claimant’s injury was not “integral” to Employer’s
workplace because Claimant had several parking options—including officially
designated options—and was not compelled to use the International Plaza lot.
(Id. at 8.) The WCJ explained:


                                           5
              The evidence was conflicting as to whether [E]mployer
              expressly prohibited [use of the International Plaza lot]
              prior to the work injury. This [WCJ] finds that they [sic]
              did not and that in fact [E]mployer here tacitly allowed
              their [sic] employees to park there. But this was not the
              equivalent of “causing” employees to use that lot.
                     Employer’s specific designation of the two lots at
              Bartram Avenue and Cargo City, and the availability of a
              shuttle bus to and from those lots, indicates that those two
              areas were the preferred and “official” parking options.
              Since the International Plaza lot was one of several
              available for use, and not one that was expressly
              sanctioned, that lot cannot be considered ‘integral’ to [the]
              work[]place.

(Id.) Claimant appealed to the Board, and, by opinion and order dated July 30, 2019,
the Board affirmed. Claimant then petitioned this Court for review.
       On appeal,4 Claimant argues that the Board committed an error of law by
affirming the WCJ’s conclusion that Claimant’s injury did not occur in the course
and scope of his employment, because, Claimant contends, the location where he
was injured is an integral part of Employer’s premises. Specifically, Claimant
contends that the International Plaza lot and the footpaths leading from it to
Terminal A are reasonable means of access to Employer’s premises, which the
record demonstrates were actually used by Employer’s employees, such that they
constitute an integral part of Employer’s premises. In response, Employer argues
that the Board properly affirmed the WCJ’s decision to deny Claimant’s claim
petition because Claimant was not acting in the course and scope of his employment
at the time of his injury. Employer first contends that Claimant was traveling to


       4
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.

                                               6
work—and was not on property owned or controlled by Employer—when he was
injured. Employer further claims that the International Plaza lot and associated
footpaths are not an integral part of Employer’s premises because Employer did not
require Claimant to park his vehicle at the International Plaza lot. Rather, Employer
insists that the DOA designated the Bartram Avenue and Cargo City lots for Airport
employees’ use, and, instead of using one of those lots, Claimant independently
chose to park in the privately owned International Plaza lot because it was more
convenient for him.
      Pursuant to Section 301(c)(1) of the Act, an injury is compensable if it
“(1) arises in the course of employment and (2) is causally related thereto.”
U.S. Airways v. Workers’ Comp. Appeal Bd. (Dixon), 764 A.2d 635, 640
(Pa. Cmwlth. 2000), appeal denied, 788 A.2d 382 (Pa. 2001). Injuries may arise in
the course of employment in two distinct situations:
              (1) where the employee is injured on or off the employer’s
              premises, while actually engaged in furtherance of the
              employer’s business or affairs; or (2) where the employee,
              although not actually engaged in the furtherance of the
              employer’s business or affairs, (a) is on the premises
              occupied or under the control of the employer, or upon
              which the employer’s business or affairs are being carried
              on, (b) is required by the nature of his employment to be
              present on the employer’s premises, and (c) sustains
              injuries caused by the condition of the premises or by
              operation of the employer’s business or affairs thereon.

Id. Whether an injury occurred in the course of employment is a question of law to
be determined based on the WCJ’s findings of fact. PPL v. Workers’ Comp. Appeal
Bd. (Kloss), 92 A.3d 1276, 1283 (Pa. Cmwlth.), appeal denied, 104 A.3d 6
(Pa. 2014).



                                          7
       As there is no dispute that Claimant was not actually engaged in the
furtherance of Employer’s business when he was injured, Claimant’s injury is
compensable under the Act if he establishes that (1) the injury occurred on
Employer’s premises, (2) Claimant’s presence thereon was required by the nature of
his employment, and (3) the injury was caused by the condition of the premises or
by operation of Employer’s business thereon. See Workmen’s Comp. Appeal Bd.
(Slaugenhaupt) v. U.S. Steel Corp., 376 A.2d 271, 273 (Pa. Cmwlth. 1977)
(en banc). Under the first prong of the Slaugenhaupt test—i.e., whether the injury
occurred on the employer’s “premises” as that term is defined in Section 301(c)(1)
of the Act—the determinative question is whether the site of the accident is so
connected with the employer’s business as to form an integral part thereof. Epler v.
N. Am. Rockwell Corp., 393 A.2d 1163, 1165-67 (Pa. 1978). In this analysis, “the
critical factor is not the employer’s title to or control over the area, but rather the fact
that [the employer] had caused the area to be used by [its] employees in performance
of their assigned tasks.”5         Id. at 1167.       Thus, Employer’s contention that the
International Plaza lot could not be part of its premises because it did not own,
maintain, or control that lot is not dispositive of whether the injury occurred on
Employer’s premises. Rather, we must also consider whether the International Plaza
lot, or, more specifically, the footpath leading to/from the International Plaza lot
upon which Claimant was injured, is an integral part of Employer’s business.
       This Court has held that reasonable means of access to the workplace are
considered an integral part of the employer’s business and, therefore, are part of the


       5
          While the question of whether an employer required a particular claimant to be at the
location of injury constitutes a separate and distinct prong of the Slaugenhaupt test, it is also the
central factor in determining whether an area not under an employer’s ownership or control is part
of an employer’s premises.
                                                  8
employer’s premises. Newhouse v. Workmen’s Comp. Appeal Bd. (Harris Cleaning
Serv., Inc.), 530 A.2d 545, 546 (Pa. Cmwlth. 1987), appeal denied, 538 A.2d 879
(Pa. 1988). In Interstate United Corporation v. Workmen’s Compensation Appeal
Board, 424 A.2d 1015 (Pa. Cmwlth. 1981), the claimant worked as a cafeteria
worker inside a plant. Interstate United Corp., 424 A.2d at 1016. The employer
leased the cafeteria from the plant owner. Id. The claimant sustained injuries after
falling on the steps of a footbridge that connected the plant to a public street. Id.
The plant owner, not the employer, owned and controlled the footbridge. Id. This
Court, in concluding that the footbridge comprised the employer’s premises for the
purposes of the Act, opined that “a reasonable means of access to . . . an employer’s
business operation is such an integral part of an employer’s business as to be
encompassed within the definition of ‘premises’ as that term is used in
Section 301(c)(1) of the Act.” Id. at 1017.
      We have also held that, where an employer’s premises has multiple routes of
access, more than one of those routes may be deemed integral to the employer’s
business and part of its premises. See Fashion Hosiery Shops v. Workmen’s Comp.
Appeal Bd., 423 A.2d 792, 796-97 (Pa. Cmwlth. 1980). In Fashion Hosiery Shops,
a claimant sustained injuries after she slipped and fell while approaching an entrance
to her workplace. Id. at 794. The employer maintained three separate points of entry
and indicated no preference about which entrance the claimant should use.
Id. at 793-94, 797. The employer did not own, lease, or control the walkway upon
which the claimant fell. Id. at 797. On appeal to this Court, the employer essentially
argued that the claimant’s injury did not occur on its premises because the claimant
could have chosen a different entrance and the employer did not instruct her to use
any specific one. Id. at 794. We rejected that argument and held that all three means


                                          9
of ingress were part of the employer’s premises. Id. at 797. In so holding, we
opined:
              [T]he claimant was injured on an entranceway that was
              available and intended for her use; and as such, it
              constituted part of the employer’s premises . . . . [T]he
              availability of alternative entrances [does not] nullify that
              conclusion. Each of the three available and intended ways
              of ingress to [the employer’s] shop was a part of [the
              employer’s] “premises” for purposes of Section 301(c) of
              the [Act].

Id. (emphasis added).
       Of particular relevance to this matter, we have previously applied these
principles to a different means of ingress to Employer’s premises—the two parking
lots designated by the DOA for Airport employee use and the associated public
shuttle bus. See US Airways, Inc. v. Workers’ Comp. Appeal Bd. (Bockelman),
179 A.3d 1177, 1183 (Pa. Cmwlth. 2018) (Bockelman I), aff’d, 221 A.3d 171
(Pa. 2019) (Bockelman II) (collectively, Bockelman). In Bockelman, the claimant
slipped and fell while riding the shuttle bus from one of the Airport’s terminals to
one of the employee lots where she had parked. Bockelman I, 179 A.3d at 1179.
We held that the claimant sustained her injury in the course and scope of her
employment because the shuttle bus was an integral part of Employer’s premises.
Id. at 1182. We reasoned that “Employer understood that the airport would transport
[its] employees who drove to work” and that, “in order to leave their work area at
the end of their shift, employees who drive to work invariably board the shuttle bus
to return to their vehicle.” Id. We separately addressed whether the claimant’s
employment required her to use the shuttle bus6 and emphasized the WCJ’s finding

       6
         We recognize that this analysis addressed the distinct second prong of the Slaugenhaupt
test—i.e., whether “the nature of [the c]laimant’s employment required her” to be on the shuttle


                                              10
that Employer had designated the employee lots for employee parking. We observed
that “[the c]laimant’s utilization of the shuttle bus service was expected,” and we
held that use of the shuttle bus was so connected to the claimant’s employment that
it was essentially required by Employer. Id. at 1183. We also specifically rejected
Employer’s counterargument, opining that “[t]he absence of a directive by Employer
instructing [the c]laimant to utilize the shuttle bus does not alter this analysis.” Id.
       On appeal, the Pennsylvania Supreme Court affirmed.                         Bockelman II,
221 A.3d at 179. After noting that Epler best illustrates how to define an employer’s
“premises” for purposes of Section 301(c)(1) of the Act, the Supreme Court reasoned
as follows:
               As part of [Employer’s] business relationship with the
               [A]irport, [Employer] clearly was aware that the [DOA]
               would make employee parking available to [its]
               employees. . . . Additionally, [Employer] was required to
               (and did) obtain SIDA badges—which could then be used
               to enter the . . . employee parking lots—for all of its
               Philadelphia-based flight attendants. Given these facts,
               we have little difficulty concluding that the parking lot and
               shuttle were connected with, and thus integral to,
               Employer’s business operations at the [Airport].

Id.
       A plurality of the Supreme Court in Bockelman II joined in a portion of the
opinion that went further, opining that some of this Court’s prior decisions had
improperly narrowed Epler’s holding. See id. at 177-79 (discussing Kloss, 92 A.3d
at 1288; Waronsky v. Workers’ Comp. Appeal Bd. (Mellon Bank), 958 A.2d 1118,
1125 (Pa. Cmwlth. 2008), appeal denied, 968 A.2d 1281 (Pa. 2009); and Ortt v.

bus when she was injured—which we do not reach in this case. Bockelman I, 179 A.3d at 1182.
We discuss that analysis here only because it relates directly to the central question under the first
prong—i.e., whether Employer “caused the area [where the injury occurred] to be used by [its]
employees in performance of their assigned tasks.” Epler, 393 A.2d at 1167.

                                                 11
Workers’ Comp. Appeal Bd. (PPL Servs. Corp.), 874 A.2d 1264, 1267-68
(Pa. Cmwlth. 2005)). In those decisions, we essentially held that a parking area was
not integral to an employer’s premises if employees were not required to use the
parking area. Our Supreme Court’s plurality in Bockelman II observed that these
decisions may have “led to the mistaken belief that a parking area cannot be integral
to an employer’s premises if workers are given a choice whether or not to use it.”
Id. at 178. The plurality noted that virtually every employee can commute to work
in a variety of ways without using employer-offered parking. Id. In conclusion, the
plurality reemphasized Epler’s central holding—“that the phrase ‘the employer’s
premises’ in Section 301(c)(1) of the Act should be construed liberally to include
any area that is integral to the employer’s business operations, including any
reasonable means of ingress to or egress from the workplace.” Id. at 179.
      Turning to the instant matter, we emphasize a critical finding by the WCJ—
that Employer specifically designated the lots at Bartram Avenue and Cargo City,
and the shuttle bus serving them, as “the preferred and ‘official’ parking options.”
(WCJ Decision at 8.) By doing business at the Airport, where the DOA formally
designated those employee parking lots, Employer relied on the employee lots and
shuttle bus to provide a reasonable means of ingress for employees who drive to
work. In doing this, Employer essentially “caused” its employees to use those lots
and the shuttle bus. This fact was the touchstone of the analysis this Court and our
Supreme Court performed in Bockelman, where Employer “understood” and
“expected” employees’ transportation on the shuttle bus, Bockelman I, 179 A.3d
at 1182-83, because of its “business relationship with the [A]irport,” Bockelman II,
221 A.3d at 179.




                                         12
      By contrast, Employer’s apparent silence about its employees’ use of the
International Plaza lot did not “cause” its employees to use that lot or transform it
into a “reasonable means of ingress” to Employer’s workplace. Our reasoning in
Bockelman I—as affirmed by our Supreme Court in Bockelman II—emphasized that
employees’ choices about where to park at the Airport are not choices between equal
alternatives without an official preference. This matter differs, therefore, from
Fashion Hosiery Shops, where all three entrances were equally “intended” for
employee use. Fashion Hosiery Shops, 423 A.2d at 797. Here, the WCJ found that
Employer’s business arrangement with the Airport establishes a clear preference for
employees to use the designated employee lots for parking. Under Bockelman, that
official designation essentially defines which parking areas are integral parts of
Employer’s premises—a definition that excludes the International Plaza lot, making
it an inherently less reasonable means of ingress. Thus, we conclude that the
International Plaza lot is not part of Employer’s premises because Employer
“caused” the designated employee lots—and not the International Plaza lot—to be
used by its employees and, thus, to be integral to Employer’s operations. See Epler,
393 A.2d at 1167.
      Moreover, even if the International Plaza lot was an integral part of
Employer’s operations, we must consider the location at which Claimant’s injury
actually occurred. It did not occur in the International Plaza lot itself, as the parties
sometimes suggest, but rather “while walking from the International Plaza . . . lot to
[Claimant’s] work[]place.” (WCJ Decision at 8.) Specifically, Claimant took the
second unpaved footpath from the International Plaza lot to the street adjacent to
Terminal A, where “[t]here is no gap in the guardrail where this [foot]path abuts the
roadway.” (Id. at 4.) Because of this, Claimant was forced to climb over the


                                           13
guardrail and was injured when his foot caught on the guardrail and he fell onto the
roadway. (Id.) Claimant’s testimony—which the WCJ credited in full—establishes
that another footpath leads from the International Plaza lot to the same street, but has
a section of the guardrail cut away allowing pedestrians to walk through. (Id.) At a
minimum, when presented with those two alternatives, it is unreasonable for an
employee to choose the footpath that requires climbing over an obstacle on an
unpaved surface next to a roadway in darkness. Thus, because the footpath on which
Claimant was injured is not a “reasonable means of ingress” to the workplace, it is
not integral to Employer’s business operations and is not part of Employer’s
premises. Bockelman II, 221 A.3d at 179.
      For the foregoing reasons, we conclude that Claimant sustained the subject
injury outside the course and scope of his employment. Accordingly, we conclude
that the Board did not commit an error of law in affirming the WCJ’s decision to
deny Claimant’s claim petition, and we will affirm the Board’s order.




                                           P. KEVIN BROBSON, Judge




                                          14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Eric Hayes,                           :
                       Petitioner     :
                                      :
              v.                      :   No. 1053 C.D. 2019
                                      :
Workers’ Compensation Appeal          :
Board (US Airways Inc.),              :
                        Respondent    :



                                    ORDER


      AND NOW, this 28th day of July, 2020, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                                      P. KEVIN BROBSON, Judge
