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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Monongahela Valley Hospital,
:

Petitioner

:

:
v.

:

:
Workers' Compensation Appeal
:
Board (Harvey),

: No. 1337 C.D. 2004

Respondent :

Jennifer Harvey,

:

Petitioner

:

:
v.

:

:
Workers' Compensation Appeal Board :
(Monongahela Valley Hospital),
: No. 1419 C.D. 2004

Respondent : Submitted: February 18, 2005
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McGINLEY

FILED: April 4, 2005

Monongahela Valley Hospital (Employer) petitions for review from
an order of the Workers' Compensation Appeal Board (Board) that affirmed the
Workers' Compensation Judge's (WCJ) decision to grant Jennifer Harvey's
(Claimant) claim petition. Claimant cross-petitions from an order of the Board that
affirmed the WCJ's decision that Claimant's termination from her employment
was unrelated to her work injury.

Employer's Petition For Review (No. 1337 C.D. 2004)

On September 23, 2001, Claimant petitioned for benefits and alleged
that she suffered a work-related injury on July 4, 2001, when she was "[i]nvolved
in an auto accident" in the "Hospital [Employer] parking lot." Claim Petition,
September 23, 2001, at 1; Reproduced Record (R.R.) at 1a. Employer and
Highmark Casualty Insurance Company denied all allegations.

After a hearing, the WCJ granted Claimant's petition and made the
following pertinent findings of fact:
3. In support of her petition, the Claimant testified on her
own behalf. The testimony of the claimant is credible and
from her credible testimony, I make the following
findings:

. . . .
b. On July 4, 2001, the claimant was working at
the Skilled Care Unit. She was involved in a
motor vehicle accident on that date. The claimant
had worked the midnight shift, having worked
from 11:00 p.m., until 7:00 a.m.

. . . .
d. The claimant is a diabetic and has been
diagnosed with diabetes for the past twenty-four
(24) years. The claimant is thirty-three (33) years
of age. The claimant has never been hospitalized
for hypoglycemic episodes.

e. When the claimant left the facility on July 4,
2001, she felt fine. She did not notice or detect
any hypoglycemic symptoms or conditions. The
claimant was going to leave the hospital and go
home.

f. The claimant's vehicle was parked in the
employee's parking lot in back of the hospital.
The claimant noted that she got into the vehicle
and started it up, then, "I put it in reverse, I backed
out of the stall, put it in forward, proceeded
2

forward, and then my next recollection is being
upside down in a grassy area with people trying to
pull me out." The claimant noted that to get out of
the parking lot, she would have to go forward
approximately twenty (20) yards and then make a
left exit out of the parking lot gate. The claimant
never made the left, she kept going forward. The
claimant noted that there was a curb approximately
four (4) inches high bordering the parking lot and
her car went over that curb.

. . . .
h. Claimant has owned the Ford Explorer since
1996, and to the best of her knowledge there was
[sic] no problems mechanically with the vehicle.

i. The claimant suffered significant injuries from
the accident. The claimant fractured her neck and
has undergone a spinal fusion of her cervical and
thoracic vertebrae. The claimant has also had two
(2) titanium rods installed with wires. The
claimant's treating surgeon is Dr. Engle.

j. The claimant explained that the area that her car
ended up was a wooded area. There was not a
guardrail or barrier to prevent an automobile from
going over the drop-off into the wooded area.
There was only the four (4) inch curb that she had
mentioned before.

. . . .
5. The Employer has presented the testimony of Andrew
C. Allison M.D. The testimony of Dr. Allison is credible
and from his credible testimony, I make the following
findings:

. . . .
c. Dr. Allison took a history from the claimant on
July 4, 2001. The history obtained from the
claimant by Dr. Allison was while the claimant
was leaving work, she "dropped something on the
floor of her car, went over the embankment. She
was entrapped in the vehicle. There was no loss of
consciousness."

. . . .
3

6. In opposition to the petition, the Employer presented
the testimony of Richard M. Planey Jr. The testimony of
Mr. Planey is credible and from his credible testimony, I
make the following findings:

. . . .
d. Mr. Planey noted that he did not see the vehicle
attempt to turn in any way. Mr. Planey believed
the vehicle to be going faster than a normal vehicle
would be traveling coming out of the back parking
lot because there is a left turn that has to be
negotiated. Mr. Planey noted that he himself
utilizes the same parking lot.

. . . .
10. I've carefully considered all the evidence, both
medical and lay, and find as a fact that the injuries that
the claimant sustained while leaving the parking lot on
July 4, 2001, were caused in significant part by the
condition of the premises. . . . [H]ad the parking lot had
a barrier, the barrier would have stopped the claimant
from going over the drop into the woods.
WCJ's Decision, December 30, 2002, Findings of Fact (F.F) Nos. 3(b, d-f, and h-
j), 5(c), 6(d) and 10 at 1-3, 5-6, and 9. The Board affirmed.

On
appeal1, Employer contends that there is no substantial evidence to
support the WCJ's finding that the physical condition of Employer's parking lot
caused Claimant to drive over the embankment.

Section 301(c) of the Workers' Compensation Act (Act)2, 77 P.S. §
411, defines the term "injury arising in the course of employment" as:

1 This Court's review is limited to a determination of whether an error of law was
committed, whether necessary findings of fact are supported by substantial evidence, or whether
constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board
(Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
2 Act of June 2, 1915, P.L. 736, as amended.
4

. . . The term "injury arising in the course of his
employment," as used in this article . . . but shall include
all other 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, and shall include all injuries caused by the
condition of the premises or by the operation of the
employer's business or affairs thereon, sustained by the
employe, who, though not so engaged, is injured upon
the premises occupied by or under the control of the
employer, or upon which the employer's business or
affairs are being carried on, the employe's presence
thereon being required by the nature of his employment.

In Dana Corporation v. Workmen's Compensation Appeal Board
(Gearhart), 548 A.2d 669 (Pa. Cmwlth. 1988), this Court stated that an employee
must satisfy three conditions under Section 301(c) of the Act, 77 P.S. § 411, in
order for his injury to be in the course of employment that "[t]he statute requires
that (1) the injury occurred on the employer's premises, (2) the employee'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 the operation of the employer's
business thereon." (emphasis added). Id. at 670.

Employer asserts that Claimant did not satisfy the third prong of
Section 301(c) of the Act and therefore her injury did not arise in the course of her
employment. Specifically, Employer asserts that Claimant's injuries were not
"caused" by a physical condition or defect of the premises but instead were
"caused" by Claimant's own actions.

In Workmen's Compensation Appeal Board (Slaugenhaupt) v. United
States Steel Corporation, 376 A.2d 271 (Pa. Cmwlth. 1977), the facts were:
5

The claimant's deceased husband, Dale Slaugenhaupt
was afflicted with epilepsy, a fact known to his employer
[U.S. Steel]. On November 11, 1974, Mr. Slaugenhaupt
suffered an epileptic seizure while operating his
automobile in his employer's [U.S. Steel's] parking lot
about forty five minutes before he was scheduled to
commence work. As a result of the seizure, Mr.
Slaugenhaupt lost control of the automobile which
thereafter struck two parked vehicles, proceeded 200 feet
to and through a chain link fence and over a walkway,
and after traveling an additional 189 feet struck and came
to rest against a concrete abutment on the employer's
[U.S. Steel] property. Mr. Slaugenhaupt died in the
accident. His death was caused by blunt force injuries of
the head and neck sustained in his automobile after it
went out of control. The parties agreed that although the
epileptic seizure caused the accident, Mr. Slaugenhaupt's
death was `not immediately occasioned by the epilepsy
itself, but by the traumatic injuries resulting from the
force of the car striking the abutment.'
We agree with the referee [now, WCJ] and the
Workmen's Compensation Appeal Board that Mr.
Slaugenhaupt's death is compensable.
Id. at 272-73.

On appeal to this Court, U.S. Steel had argued, among other things,
that Mr. Slaugenhaupt's injuries and death had been caused by his seizure and not
by the "condition of its premises or its operations on the premises." Id. at 274.
U.S. Steel contended that an employee must establish that his or her injury was
caused by "the faulty arrangement or maintenance of the employer's premises. . . ."
Id. at 275. This Court rejected U.S. Steel's argument:

Section 301(c)(1) does not say that the cause of the of the
injuries must be the faulty condition of or negligent
operations on the employer's premises, it refers only to
6

condition and operations. Concepts of fault and
negligence are foreign to the purpose of workmen's
compensation legislation to afford compensation to
injured workers regardless of the employer's fault. We
have nevertheless read most of the cases in the field and
find no authority for an argument that the worker must
show some faulty condition or negligent operations in
order to be compensated for injuries suffered while on his
employer's premises. . . . We have found no case in
which compensation has been denied a worker injured on
his employer's premises because the injuries were not
shown to have been caused by faulty conditions or
negligent operations. . . . (emphasis added).
Id. at 275. Although the WCJ found that had Employer installed a barrier,
Claimant's injuries would have been prevented, such a finding was not necessary
because pursuant to Slaugenhaupt, Claimant did not have to show "some faulty
condition" of Employer's property. Slaugenhaupt, 376 A.2d at 275.3 Claimant's
injuries and disability resulted when Claimant bolted the curb as she exited
Employer's parking lot; no faulty condition had to be established.

Claimant's Cross-Petition For Review (No. 1419 C.D. 2004)

The WCJ made the following pertinent findings of fact:
4. . . . The testimony of Ms. [Diane] Cooper is credible
and from her credible testimony, I make the following
findings:

. . . .
c. Ms. Cooper reviewed the records regarding
medication administration from October of 2000
until the date of the accident, that being July 4,
2001. Ms. Cooper noted, "I did find discrepancies

3 More recently, in Williams v. Workers' Compensation Appeal Board (City of
Philadelphia), 850 A.2d 37, 40 (Pa. Cmwlth. 2004), this Court reaffirmed our holding in
Slaugenhaupt.
7

in terms of documentation where it should be on
the patient's medical record."

. . . .
7. The Employer has presented the testimony of Paul L.
Brand. The testimony of Chief Brand is credible and
from his credible testimony, I make the following
findings:
. . . .
b. An officer from Chief Brand's force was called
out to investigate the accident that occurred at the
hospital on July 4, 2001, at which time the
claimant had been injured. Following the incident,
an Accident Report was completed. Chief Brand
is the custodian of the records of his department.
c. The accident report was completed by Officer
Brett Massafra. It was Officer Massafra who
found the empty Morphine cartridge in claimant's
automobile. In connection with Chief Brand's
testimony, the undersigned would note that the
claimant's automobile was discovered on its roof.

8. . . . The Employer presented the testimony of David E.
Clark [President of Human Resources]. . . [t]he testimony
. . . is credible and from the credible testimony, make the
following findings:

. . . .
c. Approximately, two days later [July 7, 2001],
Ms. Cooper asked Mr. Clark to meet with her and
Chief Brand. Chief Brand informed Mr. Clark at
that time of his discovery of the empty Morphine
vials.

d. Subsequent to the meeting, Mr. Clark and Ms.
Cooper put together an investigative team to
review the medical records to determine whether
or not there were any discrepancies relative to the
administration of narcotics . . . .

. . . .
f. Mr. Clark sent the claimant a letter dated July
12, 2001, informing her that her employment may
be in jeopardy. Mr. Clark noted that the letter
informed that [sic] the claimant that there were
8

serious issues that had to be discussed, and he
requested that the claimant give him a call when
she was physically capable.

g. The claimant did, in fact, called [sic] Mr. Clark
and he did discuss matters with her.

h. Following the discussions, Mr. Clark did have a
final meeting with the investigative committee.
After that meeting and based on Ms. Cooper's
investigation, it was determined that the
circumstances were serious enough to warrant
discharge from employment.
. . . .
j. Mr. Clark acknowledged that he had no
information or reason to believe that the claimant
was using the medication. He only knew that it
was outside of the disposal policies for empty
medication vials to be leaving the premises.

. . . .
11. I've carefully considered all the evidence of record,
both medical and lay, and find as a fact that the
claimant's job was terminated by her employer for
conduct not related to the work injury . . . .
WCJ's Decision, F.F. Nos. 4(c), 7(b-c), 8(c-d, f-h, j), and 11 at 5, and 6-9. The
Board again affirmed the WCJ and concluded that Claimant's termination was not
related to her work injury.

On appeal, Claimant contends that her discharge was merely
pretextual and designed to relieve Employer from having to provide disability
benefits. Claimant asserts that her failure to document the administration of
narcotics to patients on the narcotics administration records on four different
occasions were de minimis infractions that did not justify her discharge from
employment.

9

After review of the record, this Court agrees with the Board's
determination that Claimant was properly discharged from her employment:
Claimant testified that the police found two empty
morphine cartridges in her vehicle after her accident.
(N.T., 12/4/01, pp. 20-21, 27). Claimant had given the
morphine to a patient in the shift prior to her accident and
placed the empty cartridges in her lab pocket, and they
fell out when her vehicle overturned. (Id. at pp. 20-21).
Claimant received a letter dated July 12, 2001, which
stated that Defendant [Employer] was going to
investigate Claimant's handling of narcotic medications.
(Id. at pp. 19). Claimant was aware that it was
Defendant's [Employer's] policy that narcotics were to
be documented when signed out and when administered
and that it was her responsibility to complete the records.
(N.T., 8/6/02, pp. 28-29, 32). Claimant acknowledged
that there were four occasions in a ten-month period
where she checked out narcotic medication but did not
document on patient records that the medication had been
administered. (Id. at pp. 21-22, 28). Claimant further
acknowledged that errors of this nature had been brought
to her attention previously and that at times, the Nurse
Manager would call her at home to ask when Claimant
gave a patient a dose of medication. (Id. at pp. 21-22) . .
. .
Defendant [Employer] presented the testimony of Diane
Cooper . . . who . . . [f]or the period from October 2000
to July 2001, . . . found four occasions where Claimant
checked out narcotics but did not document that they
were administered to patients. (Id. at pp. 13-14).
Defendant [Employer] presented the deposition
testimony of David Clark, its Vice President of Human
Resources, who . . . stated that Defendant [Employer]
has an obligation under the Professional Nursing Law to
investigate any circumstances where there might be
inappropriate actions with respect to narcotics
administration and that Defendant [Employer] has
discharged other Registered Nurses for similar
10

discrepancies in the documentation process. (Id. at pp. 5,
9).
Board's Opinion, May 27, 2004, at 7-8.

Here, the WCJ found Employer's witnesses more credible than
Claimant that her discharge was for reasons unrelated to her work injury. The
WCJ, as the ultimate finder of fact in workers' compensation cases, has exclusive
province over questions of credibility and evidentiary weight, and is free to accept
or reject the testimony, including medical, of any witness in whole or in part.
General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593
A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 626, 600
A.2d 541 (1991).

Accordingly, this Court affirms.
____________________________

BERNARD L. McGINLEY, Judge

11