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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
U.S. AIRWAYS and RELIANCE
:
NATIONAL, c/o SEDGEWICK
:
CLAIMS NATIONAL SERVICES,
:
Petitioners
::
v.
:
No. 1040 C.D 2000
:
WORKERS' COMPENSATION
:
APPEAL BOARD (DIXON),
:
Respondent
:
GLENDA DIXON,
:
Petitioner
::
v.
:
No. 1092 C.D. 2000
:
Submitted: August 25, 2000
WORKERS' COMPENSATION
:
APPEAL BOARD (U.S. AIR
:
RESERVATION GROUP),
:
Respondent
:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge
OPINION BY
SENIOR JUDGE MIRARCHI
FILED: November 15, 2000
U.S. Airways (Employer) and its insurance carrier appeal from the
order of the Workers' Compensation Appeal Board (Board) that affirmed, as
modified, the decision of the workers' compensation judge (WCJ) awarding Glenda
Dixon (Claimant) total and partial disability benefits for a closed period and
suspending her benefits thereafter. Claimant also filed a cross-appeal from the
Board's decision.1

1 This Court sua sponte consolidated the appeals by order dated May 31, 2000.

On appeal, we are asked to determine (1) whether Claimant
established that she sustained an injury in the course of her employment; (2)
whether the WCJ's decision to suspend Claimant's benefits is supported by the
record; and (3) whether Claimant's benefits may be suspended based on her
acceptance of a severance package offered by Employer as part of its
reorganization plan. We affirm the order of the Board to the extent that it affirmed
the WCJ's grant of total and partial disability benefits for the closed period; vacate
the order affirming the WCJ's suspension of Claimant's benefits as modified; and
remand this matter to the WCJ to determine if and when Claimant's benefits should
be suspended.
I.
Claimant was employed as a unit supervisor at Employer's
Reservations Service which occupied the fifth floor of Building Seven, Parkway
Center (Parkway Center) located in Pittsburgh, Pennsylvania. On November 27,
1996, a day before Thanksgiving Day, Claimant sustained an injury when she
slipped and fell on the wet tile floor in the first floor hallway of the Parkway
Center between the lobby area and a Chinese restaurant located at the rear corner
of the first floor. At the time of the injury, Claimant was returning to her office on
the fifth floor of the building after picking up takeout lunch from the Chinese
restaurant.
On June 17, 1997, Claimant filed a claim petition, alleging that she
sustained a work-related injury in the nature of contusions, strain and sprain of
buttocks, a back injury, sciatica pelvic trauma, S-1 radiculitis and myofascial pain
syndrome. In its answer, Employer denied Claimant's allegations and asserted,
inter alia, that Claimant did not sustain the injury in the course of her employment.
2

To support the claim petition, Claimant testified as follows at hearings
held before the WCJ. As the unit supervisor, which is the first level management
position, Claimant was responsible for overseeing and monitoring activities of
fifteen to twenty reservation agents, keeping track of their payroll and time record,
serving on work teams when necessary, and attending management classes. She
usually worked in the dayshift for ten to twelve hours a day, five days a week. As
the unit supervisor, Claimant was expected to be present and visible in the office
during the entire shift to assist the agents and handle any problems they may
encounter.
Due to the nature of the operation of the Reservations Service, the
supervisors did not have a fixed schedule for lunch break. Moreover, under
Employer's policy the supervisors were prohibited from leaving the building for
lunch break, if no other supervisor was on duty on a particular day. There was a
lunchroom on the fifth floor of the building occupied by the Reservations Service,
but Employer did not operate a cafeteria or a dining facility in the building. When
the supervisors could not take regular lunch break due to their work schedule or
work load, they were permitted to order takeout lunch from one of two restaurants
located on the first floor of the building and continue to work or be available to
assist the agents, while eating lunch in the lunch room.
On November 27, 1996, the rainy day before Thanksgiving, Claimant
was busy at work because of the approaching holidays. Claimant decided to
continue to work without taking lunch break because she had some pressing
matters on her desk needed to be taken care of over the noon hour. After asking
her coworker if she wanted to order lunch, Claimant called the Chinese restaurant
on the first floor of the building and ordered takeout food. Claimant then went
3

down to the first floor to pick up the ordered food. After getting off the elevator in
the lobby of the first floor, she walked down a long hallway, turned right at the end
of the hallway and then went through a small open doorway to reach the Chinese
restaurant.
After picking up the takeout lunch, Claimant began walking toward
the elevator in the lobby to return to her office. Claimant then slipped and fell on
the wet tile floor in the hallway, landing directly onto her left buttock. After the
fall, Claimant immediately experienced pain. Upon her return to her office, she
could not eat lunch due to the pain. Later that day, Employer's office manager
filled out an occupational injury report with Claimant. Despite the sharp pain in
her buttocks radiating down her legs to her toes, Claimant continued to work until
December 2, 1996. On December 3, 1996, Claimant saw her physician, Nathan
Bennett, M.D., who stated in the medical report given to Employer that she was
not able to return to work due to the injury. Claimant was thereafter treated by Dr.
Bennett and other physicians.
On February 18, 1997, Claimant returned to work on a part-time basis
working for four hours a day, five days a week. Claimant's condition worsened
after her return to work, and she stopped working on April 14, 1997 after seeing
Dr. Bennett and continued to receive medical treatment thereafter. At that time,
Employer was in the process of reorganization. On May 31, 1997, Claimant
decided to accept a severance package offered by Employer as part of its
reorganization plan and received severance benefits in the amount of $26,052.01.
As of the hearing on August 26, 1997, Claimant was forty-three years old.
After leaving her employment with Employer, Claimant began
working at a craft store opened by her husband on February 25, 1997 and jointly
4

owned by her and her husband. Her activities at the store were very limited and
did not involve lifting or a lot of bending. She could stand and sit as she chose.
Claimant worked at the store for up to sixteen hours a week at first and up to
twenty hours a week by October 1997. The business did not generate any profits,
and Claimant and her husband did not draw any compensation from the business.
Claimant's husband testified corroborating Claimant's testimony regarding her
limited activities at the store.2 He testified that Claimant could no longer do
household chores or enjoy active lifestyle after the work injury.
Claimant also presented the medical reports of her treating physicians.
In the medical report dated January 5, 1998, Dr. Bennett opined that Claimant
suffered from acute sciatica as a result of her November 27, 1996 fall; she was
completely disabled from December 3, 1996 until her return to work on February
18, 1997 on the part-time basis, and from April 14, 1997 until May 31, 1997; and
she was thereafter able to work as the retail clerk at the family-owned store on a
very limited basis for fifteen to twenty-eight hours a week. In the report dated
September 29, 1997, Richard A. Weisman, M.D., a neurosurgeon, stated that at the
time of his examination of Claimant on October 6, 1997, Claimant had pain in her
lower back and left sciatic distribution when bending forty-five degrees, some
spasms in the paravertebral muscles, weakness of her left exterior hallicis longus
and symptoms of left L-5 radiculopathy. Dr. Weisman opined that Claimant's
conditions were directly related to her work injury on November 27, 1996 and that
she had not reached a maximum medical improvement.
In opposition to the claim petition, Employer presented the testimony

2 Employer states in its reply brief that the craft store operated by Claimant's husband has
since been closed.
5

of Sandy Thomas, the reservation sales manager and Claimant's supervisor, and
Michelle Tegge, the unit supervisor. They testified that although the supervisors
did not have a fixed lunch schedule due to the nature of the office operation, they
were encouraged to take lunch break for up to one hour, and that each supervisor
decided how to cover the operation during their lunch break. Their testimony was
in most part consistent with Claimant's testimony regarding Employer's policy
governing the supervisors' lunch schedule and the operation of the office during
their lunch break. Employer did not present any medical testimony.
The WCJ accepted the testimony of Claimant and her medical
witnesses as credible. The WCJ also found the testimony of Employer's witnesses
credible to the extent that it was consistent with Claimant's testimony. The WCJ
concluded that Claimant sustained the injury while actually furthering Employer's
business. The WCJ also concluded that Claimant's injury arose in the course of
employment because her injury was caused by the wet condition of the building or
the common area leased, occupied and controlled by Employer, and because she
was required to be in that area of the building at the time of the injury.
The WCJ awarded Claimant total disability benefits in the maximum
weekly compensation rate of $527 from December 3, 1996 to February 17, 1997
and weekly partial disability benefits in the amount of $296.19 from February 18,
1997 to April 14, 1997, giving Employer a credit for $26,052.01 paid her as
severance benefits. The WCJ then suspended her benefits as of April 14, 1997,3

3 The WCJ stated in the order that Claimant is entitled to partial disability benefits from
February 18, 1997 through April 14, 1998 and that her benefits should be suspended as of April
14, 1998. The WCJ also stated in Findings of Fact No. 34 that Claimant is entitled to partial
disability benefits from February 17, 1997 to April 14, 1998. However, the record clearly shows
that the WCJ intended to award Claimant partial disability benefits until April 14, 1997, not 1998
and suspend her benefits as of that date. The WCJ accepted the testimony of Claimant and Dr.
(Footnote continued on next page...)
6

stating that "there is no evidence of continued wage loss due to disability" after that
date. WCJ's Findings of Fact No. 34. Both Claimant and Employer appealed the
WCJ's decision to the Board.
On appeal, the Board affirmed the WCJ's decision awarding Claimant
total and partial disability benefits for the closed period, concluding that she
sustained the injury in the course of her employment. The Board then modified the
effective date of suspension of Claimant's benefits to May 31, 1997, the date of her
acceptance of the severance package offered by Employer, stating that her loss of
earnings after May 31, 1997 was caused by her voluntary withdrawal from
employment with Employer, not by the work injury.4 Employer appealed the
Board's decision to this Court, contending that Claimant did not sustain the injury
in the course of her employment. Claimant also filed a cross-appeal, challenging
the suspension of her benefits.
II.
An employee's injury is compensable under Section 301(c)(1) of the

(continued...)
Bennett that Claimant stopped working on April 14, 1997 due to the persistent pain after she
returned to work on the part-time basis. In Findings of Fact No. 27, the WCJ found that
Claimant was entitled to partial disability benefits from February 18, 1997 through April 14,
1997. Thus, it is apparent that the discrepancies in the WCJ's decision regarding the effective
date of suspension of Claimant's benefits were caused by the WCJ's inadvertence or typos.
4 The Board also affirmed the WCJ's order directing Employer to pay for medical
expenses incurred by Claimant for the treatment received from Dr. Bennett for the first ninety
days, rejecting Employer's contention that it was not liable for the payment of those medical
expenses due to her failure to visit one of the physicians or other health care providers designated
by Employer for the first ninety days, as required by Section 306(f.1)(1)(i) of the Workers'
Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 53 P.S. §531(1)(i). On appeal,
Employer does not challenge the WCJ's award of the medical expenses.
7

Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77
P.S. §411(1), if the injury (1) arises in the course of employment and (2) is
causally related thereto. Brody v. Workmen's Compensation Appeal Board
(Pennsylvania Public Utility Commission), 588 A.2d 575 (Pa. Cmwlth. 1991). An
injury may be sustained "in the course of employment" under Section 301(c)(1) of
the Act 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. Hemmler v.
Workmen's Compensation Appeal (Clarks Summit State Hospital), 569 A.2d 395
(Pa. Cmwlth. 1990).
Employer first contends that Claimant's injury did not arise in the
course of her employment because she was on her lunch break at the time of the
injury and was not actually engaged in the furtherance of Employer's business or
affairs.5

5 This Court's scope of review in a workers' compensation case is limited to determining
whether the WCJ's necessary findings of fact are supported by substantial evidence, whether an
error of law was committed, or whether constitutional rights were violated. Russell v.
Workmen's Compensation Appeal Board (Volkswagen of America), 550 A.2d 1364 (Pa. Cmwlth.
1988). The appellate role in a workers' compensation case is not to reweigh the evidence or
review the credibility of the witnesses; rather, the appellate court must simply determine whether
the WCJ's findings have the requisite measure of support in the record as a whole. Bethenergy
Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434
(1992).
8

The Act is remedial in nature and intended to benefit workers;
therefore, the phrase "actually engaged in the furtherance of the business or affairs
of the employer" under Section 301(c)(1) of the Act must be given a liberal
construction to effectuate the humanitarian objective of the Act. Lehigh County
Vo-Tech School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322,
652 A.2d 797 (1995); Mann v. City of Philadelphia, 563 A.2d 1284 (Pa. Cmwlth.
1989), appeal denied, 525 Pa. 622, 577 A.2d 892 (1990). "To determine whether
an employee was acting in the furtherance of the employer's business or affairs,
courts consider the nature of the employment and conduct[,] a case specific
inquiry." Wasserman v. Fifth & Reed Hospital, 660 A.2d 600, 604 (Pa. Super.
1995). Whether the employee was acting in the course of employment at the time
of injury is a question of law to be determined based on the factual findings made
by the WCJ. Peterson v. Workmen's Compensation Appeal Board (PRN Nursing
Agency), 528 Pa. 279, 597 A.2d 1116 (1991).
To support its contention that Claimant's injury did not arise in the
course of her employment, Employer relies on the cases holding that the claimant
was not entitled to benefits for the injury sustained during the lunch break. See,
e.g., Kmart Corp. v. Workers' Compensation Appeal Board (Fitzsimmons), ___ Pa.
___, 748 A.2d 660 (2000) (the claimant experienced nightmares after observing the
attack of her coworker by the coworkers' estranged husband at the restaurant
located on the employer's premises and aiding the injured coworker following the
attack, while off-duty during her lunch hour); Collins v. Workmen's Compensation
Appeal Board (American Society for Testing & Materials), 512 A.2d 1349 (Pa.
Cmwlth. 1986) (the claimant sustained the injury, when she fell on the sidewalk
two blocks from the employer's premises while returning from lunch); Giebel v.
9

Workmen's Compensation Appeal Board, 399 A.2d 152 (Pa. Cmwlth. 1979) (the
claimant sustained the injury when she slipped and fell during the lunch hour at the
employer's retail store located within the building in which she worked).
The cases relied on by Employer are factually distinguishable and do
not support its position. In those cases, the claimants were injured while off-duty
during their lunch hour. In this matter, however, the facts found by the WCJ
establish that Claimant was not on lunch break at the time of the injury. The WCJ
found that as the unit supervisor supervising up to twenty-seven reservation agents,
Claimant was expected to be present and visible in the office throughout her shift
to assist the agents, handle any problems which they may encounter, and deal with
irate customers. The supervisors did not have set lunch hours due to the nature of
the business, and it was up to each supervisor to determine the time and the length
of lunch break. Employer's witnesses conceded that the supervisors took lunch
break only when it would be operationally acceptable, that there were days when
the supervisors had little or no lunch break due to the busy operation of the
business, and that even when they ate lunch in the lunchroom, they were often
approached by the agents for assistance.
When asked by the WCJ, Michelle Tegge, the unit supervisor,
admitted that it was possible for a supervisor to go to the first floor of the building
to pick up takeout food, as Claimant did, and still not be in a lunch break status.
Tegge testified:
Q. So you wouldn't know, would you, or would you
know, if a person left the floor and if they were going
downstairs for whatever, the particular facility that had
carryouts or food items, you would --- that it is possible,
or is it possible that person could go pursue those items
and not be in the lunch status, but just to be going to pick
10

up some particular items and continue their duties?
A. Could be, yes.
Q. So if your testimony is that you have the right to elect
what is your lunch hour, you would have the right, if I
understand it, then, to say to yourself, that I am doing
these things, but I'm not in the lunch status.
A. You could. I guess you could say that you're not in
the lunch status, ....
March 24, 1998 Hearing, N.T., p. 42.
On November 27, 1996, just before Thanksgiving Day, Claimant
decided to order takeout food and continue to work without taking lunch break and
remain available to assist the agents because she was busy during that time of the
year before the approaching holidays and had pressing matters on her desk to be
taken care of. Claimant was injured on the first floor of the building while
returning to her office after picking up the ordered takeout food. Under these facts,
Claimant established that she sustained the injuries during the regular working
hour, not during lunch break.
Moreover, it is well established that an employee is considered to
have sustained an injury while actually engaged in the furtherance of an employers'
business interests and affairs, where the injury occurred during inconsequential or
innocent departure from work within the regular working hours. Workmen's
Compensation Appeal Board v. Borough of Plum, 340 A.2d 637 (Pa. Cmwlth.
1975). As this Court explained in Cozza v. Workmen's Compensation Appeal
Board, 383 A.2d 1324, 1325 (Pa. Cmwlth. 1978):
'[C]ourse of employment' embraces intervals of leisure
within regular hours of the working day and that
momentary departures from the work routine do not
11

remove an employee from the course of his employment.
.... Breaks which allow the employee to administer to
his personal comfort better enable him to perform his job
and are therefore considered to be in furtherance of the
employer's business. (Citation omitted.)
This so-called "personal comfort doctrine" applies not only to a traveling employee
but also to a stationary employee, i.e., one who works primarily at the business site
such as Claimant, although the doctrine will necessarily be applied more broadly to
the traveling employee.
The facts in this matter are similar to those in D'Agata National Inc. v.
Workmen's Compensation Appeal Board (D'Agata), 479 A.2d 98 (Pa. Cmwlth.
1984), which involved the claimant, who was shot while entering a mobile
luncheonette located on the employer's property to have a cup of coffee after
leaving his office to meet potential customers. This Court upheld the WCJ's award
of benefits, concluding that such minor deviations of the claimant for personal
comfort or leisure would not break the chain of conduct in the course of
employment, and that the claimant was actually furthering the employer's business
or affairs at the time of the injury. As in D'Agata, Claimant's momentary,
inconsequential and innocent departure from the work area during the regular
working hour to pick up the takeout lunch from the restaurant located on the first
floor of the building cannot be considered an event breaking the chain of conduct
in the course of her employment.
Contrary to Employer's assertion, the question of whether Claimant
actually provided assistance upon her return to the office after picking up the
takeout lunch and following her injury is irrelevant in determining whether
Claimant was furthering Employer's business or affairs at the time of the injury. In
Keiter v. Workmen's Compensation Appeal Board (Avondale Borough), 654 A.2d
12

629 (Pa. Cmwlth. 1995), appeal denied, 544 Pa. 648, 664 A.2d 976 (1995), the
claimant, who was the voluntary fireman and emergency medical technician, was
on call during the lunch break to take inebriated individuals home on New Year's
Eve. The claimant was injured when he was hit by the truck one and one-half
miles from the firehouse during the lunch break. Under these facts, this Court
concluded that the claimant was furthering the employer's business and affairs at
the time of the injury. As in Keiter, Claimant intended to remain on-call to
provide assistance to the agents upon her return after picking up the takeout lunch.
Under Keiter, therefore, Claimant's momentary departure from the work area to get
lunch should not bar her entitlement to compensation.6
Accordingly, the order of the Board is affirmed to the extent that it
affirmed the WCJ's grant of total disability benefits from December 3, 1996 to
February 17, 1997 and partial disability benefits for the period of her return to
work on the part-time basis from February 18, 1997 to April 14, 1997.
III.
Claimant contends that the WCJ erred in suspending her benefits as of
April 14, 1997, asserting that the testimony accepted by the WCJ established her
ongoing and indefinite disability after she stopped working on the part-time basis
due to the pain on April 14, 1997.

6 Because Claimant sustained the injury while engaging in the furtherance of Employer's
business or affairs, she is entitled to benefits, regardless of whether the injury was sustained on
or off Employer's premises. Consequently, it is unnecessary to address Employer's contention
that the WCJ erred in finding that Claimant sustained the injury on the premises or the common
area leased, occupied or controlled by Employer, that Claimant was required to be in that area at
the time of the injury, and that her injury was caused by the condition for Employer's premises or
the common area.
13

Our review of the WCJ's decision reveal numerous inconsistent
findings regarding Claimant's disability as of April 14, 1997. The WCJ accepted
as credible Claimant's testimony that her condition worsened after she returned to
work on February 18, 1997 on the part-time basis, that she stopped working on
April 14, 1997 due to the persistent pain. WCJ's Findings of Fact No. 8. The WCJ
also accepted Dr. Bennett's opinion that Claimant was fully disabled from April 14,
1997 until May 31, 1997 when she accepted the severance package offered by
Employer, and that she was thereafter only capable of working on a very limited
basis as the retail clerk at the family-owned store for fifteen to twenty-eight hours a
week. Id. at No. 18. The WCJ specifically found that on April 14, 1997,
"[Claimant's] injuries sustained in this case prevented her from continuing [to
work] any further" and that "[f]rom April 15, 1997 through the present, the
claimant has not derived any income or other compensation from the business
which she and her husband jointly operated since February of 1997." Id. at Nos.
27 and 28.
The WCJ also found, however, that Claimant was partially disabled
from February 18, 1997 through the present, that her partial disability was
continuing up to May 31, 1997 when she accepted the severance package offered
by Employer, and that "there was no evidence of continued wage loss due to
disability." Id. at Nos. 26, 28 and 34. The WCJ further stated that "the amount of
partial disability wage loss payments from April 18, 1997 continuing indefinitely
... is $527.09 per week." Id. at No. 28.7 Due to these inconsistent findings made

7 The WCJ found that Claimant was entitled to total disability benefits in the maximum
compensation rate of $527.09 for the closed period. Thus, $527.09 cannot be a correct amount
of her weekly partial disability benefits.
14

by the WCJ regarding the extent of Claimant's disability after she stopped working
on April 14, 1997, we cannot determine the propriety of the suspension of her
benefits as of April 14, 1997. Accordingly, this matter must be remanded to the
WCJ to reconcile the inconsistencies in his findings.
IV.
Claimant also challenges the Board's conclusion that her benefits
should be suspended as of May 31, 1997, the date of her acceptance of the
severance package offered by Employer as part of its reorganization plan.
Claimant argues that her benefits may not be suspended based solely on her
acceptance of severance benefits and that Employer is only entitled to a credit for
the amount of the severance benefits she received toward her workers'
compensation benefits to be awarded, pursuant to Section 204(a) of the Act, 77
P.S. §71(a), which provides in relevant part that "[t]he severance benefits paid by
the employer directly liable for the payment of compensation ... shall also be
credited against the amount of the award ..., except for benefits payable under
section 306(c) [77 P.S. §513 (specific loss benefits)]."
Under the Act, a claimant is entitled to disability benefits only where
the claimant's loss of earning power is caused by his or her disabling work-related
injury or disease. Republic Steel Corp. v. Workmen's Compensation Appeal Board
(Petrisek), 537 Pa. 32, 640 A.2d 1266 (1994). Consequently, when the claimant
voluntarily retires or leaves the labor market, his or her disability benefits must be
suspended. Southeastern Pennsylvania Transportation Authority v. Workmen's
Compensation Appeal Board (Henderson), 543 Pa. 74, 669 A.2d 911 (1995); Smith
v. Workers' Compensation Appeal Board (Dunhill Temporary Systems), 725 A.2d
1285 (Pa. Cmwlth. 1999). In order to continue to receive disability benefits
15

following retirement or separation from employment, therefore, the claimant must
establish that he or she is seeking employment or that he or she was forced into a
compulsory retirement or separation from employment due to the work-related
injury. Henderson; City of Philadelphia v. Workmen's Compensation Appeal
Board (Defruscio), 695 A.2d 910 (Pa. Cmwlth. 1997).
In this matter, the WCJ found that Claimant chose to accept the
severance package offered by Employer and that she thereafter worked as the retail
clerk at the family-owned business for up to twenty hours a week. The WCJ,
however, failed to make any specific findings as to whether Claimant removed
herself from the work force by accepting the severance package or was forced to
accept the severance package due to the work injury. Hence, the Board erred in
concluding, without necessary findings of the WCJ, that Claimant's benefits should
be suspended as of May 31, 1997.
Moreover, profits generated from operating a family-owned business
may not be accepted as a measure of the claimant's earning power in determining
whether the employer is entitled to modification or suspension of the claimant's
benefits, unless the profits are almost entirely the result of personal management
and endeavor of the claimant. Joy Technologies, Inc. v. Workmen's Compensation
Appeal Board (Heeter), 624 A.2d 710 (Pa. Cmwlth. 1993); Fruehauf Corp. v.
Workmen's Compensation Appeal Board (Michaels), 559 A.2d 609 (Pa. Cmwlth.
1989); Clingan v. Fairchance Lumber Co., 71 A.2d 839 (Pa. Super. 1950).8

8 In Rossi v. Workmen's Compensation Appeal Board (City of Hazleton), 642 A.2d 1153
(Pa. Cmwlth. 1994), appeal denied, 539 Pa. 660, 651 A.2d 545 (1994), this Court held that under
certain circumstances, the claimant's earnings from the family-owned business may properly be
imputed based on the evidence of the prevailing wages presented by the employer to determine
whether the claimant's benefits may be modified or suspended. In this matter, no evidence of
prevailing wages for a retail clerk in the area was presented at the hearings.
16

In this matter, the WCJ accepted as credible the testimony presented
by Claimant that she only waited on customers at the family-owned store for up to
twenty hours a week and that her husband performed all the tasks necessary to
operate the business. The WCJ also found that the family-owned business did not
generate any profit and that Claimant and did not receive any wages from the
business. Therefore, Claimant's benefits cannot be suspended or modified based
on her work at the family-owned store following her separation from employment
with Employer.
Hence, the order of the Board is vacated to the extent that it affirmed
the WCJ's suspension of Claimant's benefits, as modified. This matter is remanded
to the WCJ to make further findings, based on the record, as to the extent of
Claimant's disability after April 14, 1997 and whether she voluntarily removed
herself from the labor market by accepting the severance package offered by
Employer on May 31, 1997 or was forced into accepting the severance package
due to the work injury, and to determine, based those findings, if and when her
benefits should be suspended.
____________________________________
CHARLES P. MIRARCHI, JR., Senior Judge
17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
U.S. AIRWAYS and RELIANCE
:
NATIONAL, c/o SEDGEWICK
:
CLAIMS NATIONAL SERVICES,
:
Petitioners
::
v.
:
No. 1040 C.D 2000
:
WORKERS' COMPENSATION
:
APPEAL BOARD (DIXON),
:
Respondent
:
GLENDA DIXON,
:
Petitioner
::
v.
:
No. 1092 C.D. 2000
:
WORKERS' COMPENSATION
:
APPEAL BOARD (U.S. AIR
:
RESERVATION GROUP),
:
Respondent
:
O R D E R
AND NOW, this 15th day of November, 2000, the order of the
Workers' Compensation Appeal Board (Board) in the above-captioned matter is
affirmed to the extent that it affirmed the decision of the workers' compensation
judge (WCJ) to grant Glenda Dixon (Claimant) total disability benefits from
December 3, 1996 to February 17, 1997 and partial disability benefits from
February 18, 1997 to April 14, 1997. The order of the Board is vacated to the
extent that it affirmed the WCJ's suspension of Claimant's benefits as modified.
This matter is remanded to the WCJ to make further findings, based on the record,
as to the extent of Claimant's disability after April 14, 1997 and whether she

voluntarily removed herself from the labor market by accepting the severance
package offered by Employer on May 31, 1997 or was forced into accepting the
severance package due to the work injury, and to determine, based on those
findings, if and when her benefits should be suspended.
Jurisdiction relinquished.
____________________________________
CHARLES P. MIRARCHI, JR., Senior Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
U.S. AIRWAYS and RELIANCE
:
NATIONAL, c/o SEDGEWICK
:
CLAIMS NATIONAL SERVICES,
:
Petitioners
::
v.
::
WORKERS' COMPENSATION
:
APPEAL BOARD (DIXON),
:
NO. 1040 C.D. 2000
Respondent
:
GLENDA DIXON,
:
Petitioner
::
v.
::
WORKERS' COMPENSATION
:
APPEAL BOARD (U.S. AIR
:
RESERVATION GROUP),
:
NO. 1092 C.D. 2000
Respondent
:
SUBMITTED: AUGUST 25, 2000
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge
DISSENTING OPINION
BY JUDGE McGINLEY
FILED: November 15, 2000
I respectfully dissent to the majority's conclusion that Claimant was
furthering Employer's business when she slipped on a wet floor outside a
restaurant after she picked up her lunch. Although Claimant was returning to her
office, she was clearly on a lunch break when she fell. I do not believe an
employee collecting a take-out lunch is an act that furthers the employer's
business. The fact that the restaurant was located in the same building as
Claimant's place of employment is inconsequential. She was no more in
furtherance of Employer's business than if she slipped outside a restaurant located
20

a substantial distance away. I do not believe the proximity of the restaurant to the
office is material and that it is error to consider it so.
Additionally, I do not believe this situation comes under the "personal
comfort doctrine." Under the decision reached by the majority, the situations
under which an employee may receive benefits under the Act would greatly
expand.9
____________________________
BERNARD L. McGINLEY, Judge

9
Because I would deny Claimant's claim petition, I would necessarily not have to
address the issues of Claimant's cross-appeal.
21