The PSU v. J. Ward (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Pennsylvania State University, :
Petitioner :
:
v. : No. 1425 C.D. 2021
: Submitted: October 11, 2022
John Ward (Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: February 22, 2023
The Pennsylvania State University (Penn State) has petitioned this
Court to review an adjudication of the Workers’ Compensation Appeal Board
(Board). We discuss the procedural posture in further detail below, but essentially
John Ward (Ward) filed a petition for workers’ compensation benefits, which the
Workers’ Compensation Judge (WCJ) had denied. The Board reversed the WCJ. On
appeal, Penn State contends that the Board erred by substituting the WCJ’s factual
findings with its own. Upon review, we are constrained to vacate the decisions and
orders at issue and remand for a revised decision by the WCJ, which must more
explicitly identify which testimony the WCJ found credible.
I. BACKGROUND
Penn State employed both Ward as a maintenance worker and his
fiancée, who was divorced.1 Ward’s fiancée typically met her ex-husband in a Penn
1
We state the generally undisputed facts. Because Penn State has alleged that the Board
State parking lot to exchange custody of their minor child. In 2017, Ward was at
Penn State when he witnessed his fiancée’s ex-husband kill her and then commit
suicide. The police arrived, including Pennsylvania State Trooper Patrick Thomas
(Thomas), the lead investigator, who interviewed Ward shortly thereafter.
In 2018, Ward filed a claim petition requesting temporary total
disability benefits. Prior to the WCJ’s initial hearing, the parties stipulated that Ward
witnessed the murder/suicide and consequently suffered post-traumatic stress
disorder. The WCJ held several hearings.
A. Ward’s Testimony
Ward testified that as a general maintenance helper, he resolved “any
maintenance requests or concerns in the dorms.” N.T. Hr’g, 5/1/18, at 13. During
the course of the day, Ward would be in the dorm and dining hall, as needed. Id.
Ward usually did his rounds of the dorm during the afternoon between 2:00 and 4:00
p.m., which is when he walked “from window to window, floor to floor.” Id. at 15,
41, 46. After finishing his rounds each afternoon, Ward would walk from the dorm
to the dining hall to pick up any maintenance requests from his mailbox. Id. at 14,
22. Ward usually checked his mailbox shortly before his scheduled afternoon break
at 3:00 p.m., although occasionally his break started as early as 2:30 p.m. or as late
as 4:00 p.m., or was cancelled altogether, depending on the events that day. Id. at
improperly substituted its findings of fact for the WCJ’s findings of fact, we summarize the
disputed testimony below. We note that the WCJ’s April 30, 2019 decision did not clearly explain
that the WCJ was summarizing each party’s interpretation of the testimony. Compare WCJ’s
Decision, 4/30/19, at 4 (notating that section as Ward’s counsel’s version of events), with id. at 19
(signaling the beginning of Penn State’s counsel’s narrative), and id. at 44 (start of the WCJ’s own
findings of fact). Because the WCJ’s decision used two different pagination sequences and the
parties used the pagination at the bottom of the page, we also do the same. Finally, we add that
Ward’s fiancée was a chef, and her shift ended at 3:00 p.m. Notes of Testimony (N.T.) Hr’g,
5/1/18, at 24-25.
2
22-23; N.T. Hr’g, 7/3/18, at 15. Ward almost always picked up refreshments in the
dining hall before returning to the dorm for his break. N.T. Hr’g, 5/1/18, at 43.
Because the custody exchange occurred around the same time that Ward
did his rounds, Ward explained that he saw the custody exchange “[m]aybe once or
twice in passing,” specifically at 3:15 p.m., if the ex-husband was on time or later if
the ex-husband was late. N.T. Hr’g, 5/1/18, at 41; N.T. Hr’g, 7/3/18, at 15. Ward
denied making “it a purposeful part of [his] day to make sure that [he] would be
available” during the custody exchange. N.T. Hr’g, 5/1/18, at 41.2 Ward agreed that
“monitoring or participating in custody exchanges” was not part of his job. N.T.
Hr’g, 7/3/18, at 10-11.
In the mid-afternoon of December 13, 2007, Ward testified that he was
changing a toilet seat, when his fiancée texted Ward that the ex-husband was late.
Id. at 18. Ward stated that around 15 minutes later, he was in the maintenance room
putting his tools away before he began his “afternoon rounds through the dorms,
which [he] did every day.” N.T. Hr’g, 5/1/18, at 15; N.T. Hr’g, 7/3/18, at 18.
Ward testified that it was around 3:00 p.m. when he “got to the end of
the hall on the second floor, [and he] noticed [the ex-husband’s] vehicle pulling in,
[and] the child exchange usually only lasted about 15 seconds, so [he] took [his] time
going down the steps.” N.T. Hr’g, 5/1/18, at 15-16. Ward explained that he was
“trying to go to break that day, and [he] ended up late.” Id. at 16. Ward clarified
that he was not specifically looking out the second-floor window, but was walking
toward the stairs when he “glanced out the window and saw [the ex-husband’s]
vehicle pulling in.” Id. at 45-46. Ward stated he was on his way to the office to
2
On cross-examination, in response to the question, “And on prior occasions, had you
positioned yourself in such a location so that you could observe” the custody exchange, Ward
responded, “Very few.” N.T. Hr’g, 7/3/18, at 16.
3
check his mailbox for maintenance requests. Id. at 17, 22; N.T. Hr’g, 1/8/19, at 38.
Ward testified that he used “the emergency exit, which [he] did quite
often, got to the bottom of the steps,” and the ex-husband shot Ward’s fiancée. N.T.
Hr’g, 5/1/18, at 15; N.T. Hr’g, 1/8/19, at 38. Ward agreed with counsel’s question
that it was only when Ward was exiting the dorm that he became “aware that
something terrible was happening.” N.T. Hr’g, 7/3/18, at 19. Ward denied seeing
anything that would give him concern, including a drawn gun, when he looked out
from the second story window. Id. at 20-21. Lastly, Penn State cross-examined
Ward regarding his interview with Thomas, and Ward generally denied recalling
making various statements to Thomas. N.T. Hr’g, 7/3/18, at 37-43.
B. Thomas’ Testimony
Penn State introduced the trial deposition testimony of Thomas. N.T.,
Hr’g, 1/8/19, at 7; N.T. Thomas Dep., 8/14/18, at 8. Thomas testified that he
interviewed Ward within an hour of the homicide, and Thomas both audio-recorded
(with Ward’s permission) and took notes during the interview. N.T. Thomas Dep. at
14, 18, 26. In Thomas’ view, Ward was forthcoming about his observations but also
was “extremely distraught [and] very emotional.” Id. at 18, 42. Thomas agreed it
was possible that given Ward’s emotional state, Ward may have misspoken or “there
was some misinterpretation” as to, e.g., whether Ward was on the second floor or
exiting the first floor when he saw the shooting. Id. at 44.
According to Thomas, Ward stated that the custody exchange was
scheduled for 3:15 p.m., but that the ex-husband was “usually always 30 minutes
late.” Id. at 21, 26. Ward explained that because the ex-husband was “unstable,”
Ward would watch the exchange from the dorm. Id. at 23. Thomas stated that it was
his understanding that Ward “would watch every custody exchange,” usually from
4
the second story window of the dorm. Id. at 26-27.3 Ward explained that his fiancée
would text him when the exchange was occurring and that they “were texting back
and forth between [(sic) the ex-husband’s] arrival.” Id. at 27-28.
On December 13, 2017, according to Thomas, Ward checked his cell
phone and said that his fiancée walked outside and was in her car at 3:08 p.m. Id. at
28.4 Per Thomas, Ward texted his fiancée, “Why are you not staying in the
building?” and that he saw the ex-husband arrive from the second-story window. Id.
at 28-29. Ward saw the ex-husband exit his vehicle with Christmas presents,
approach the fiancée’s vehicle, hand the presents to the fiancée, and as the fiancée
turned to put the presents in her vehicle, the ex-husband shot the fiancée sometime
before 3:38 p.m. Id. at 11, 29. “Ward further related that he ran downstairs as fast
as he could and exited through the emergency exit.” Id. at 29, 30-31. Thomas agreed
that Ward “always maintained that [Ward] saw the whole interaction” and that “it
seems that it’s indicated [Ward] observed the shooting [from] the second floor[.]”
Id. at 42-43.
Thomas testified that the police interviewed two other individuals about
their recollection. Id. at 35, 37. Thomas stated that the individual he personally
interviewed did not indicate that Ward was outside during the actual shooting. Id.
In sum, before the WCJ, Ward testified that he was leaving the dorm
and was on his way to the dining hall office to check his mailbox for maintenance
requests when he saw his fiancée killed. N.T. Hr’g, 5/1/18, at 15; N.T. Hr’g, 1/18/19,
3
Precisely, Thomas explained that it “was [his] understanding in talking with [Ward] that
he would watch every custody exchange. And [the ex-husband] was always 30 minutes late when
it came time.” N.T. Thomas Dep. at 26; id. at 23 (“And [Ward] would just watch from [the dorm]
to make sure that the exchange went without any complications.”). Thomas agreed that “it [was
his] understanding that this was information Mr. Ward knew personally[.]” Id. at 26.
4
Apparently, Ward’s fiancée texted Ward of her action.
5
at 38. In contrast, per Thomas, Ward was not on his way to the office, but was
watching the custody exchange from the second floor when the shooting occurred,
which prompted Ward to run downstairs as fast as he could. N.T. Thomas Dep. at
28-29; see also N.T. Thomas Dep., Ex. 1.5
C. Subsequent Procedural History
The WCJ denied Ward’s petition because Ward failed to establish that
he was injured during an activity that furthered the interests of Penn State. WCJ’s
Decision, 4/30/19, at 44, 46. The WCJ found that Ward and Thomas both credibly
testified. Id. The WCJ held, as a conclusion of law, that Ward “failed to establish
5
Only a partial copy of Thomas’ incident report was made part of the record. N.T. Thomas
Dep., at Ex. 1 (partial copy of Thomas’ incident report). For completeness’ sake, we quote the
relevant excerpt from Thomas’ incident report:
Ward related that [the ex-husband] is supposed to return at 1515 hours with [the
child]. However, he is usually always 30 minutes late. Ward further related that he
works in the dorms as part of his job. Ward continued to relate that he stands in the
second-floor window of [the dorm] to watch the exchange between [the ex-
husband] and [the fiancée]. Ward related that [his fiancée] usually texts him to let
him know the exchange is happening. Ward continued to relate that he watches the
exchange because [the ex-husband] has become unstable since [the fiancée] left
him. Ward related that he and [the fiancée] were texting back and forth before [the
ex-husband’s] arrival. Ward related that at 1508 hours, [his fiancée] walked outside
and sat in her car. Ward continued to relate that he texted [his fiancée] and asked
“why are you not staying in the building?” Ward related that while he was standing
in the second story window, he observed [the ex-husband] pull into the parking lot
in his white Tahoe. Ward related that [the ex-husband] exited his vehicle with
Christmas presents in his hands. Ward continued to relate that [the ex-husband]
walked over to [the fiancée’s vehicle] and handed her the presents, Ward related
that as [the fiancée] turned to put the presents in her vehicle, [the ex-husband] shot
her. Ward further related that [the ex-husband] had shot [the fiancée] with a
handgun. Ward continued to relate that [the ex-husband] then turned and shot
himself. Ward further related that he ran down the stairs as fast as he could and
exited through the emergency exit. Ward related that he ran towards [his fiancée]
and rolled her over to see if she was alive. Ward related that she was already dead.
Id. (cleaned up).
6
that his monitoring of, and involvement with, the custody exchange giving rise to
this claim has been related to his employment, and that this activity advanced [Penn
State’s] interests.” Id. at 46. The WCJ also held that Ward failed to establish that
his actions fell within the scope of the personal comfort doctrine and that Penn State
successfully invoked the personal animus defense because the ex-husband targeted
Ward. Id. at 46-47.6 Ward timely appealed to the Board.
The Board reversed, reasoning that Ward properly invoked the personal
comfort doctrine and that Penn State failed to establish the affirmative defense of
personal animus. Bd.’s Dec., 6/25/20, at 8-9, 11. The Board acknowledged the
WCJ’s finding that both Ward and Thomas credibly testified. Id. at 8. The Board
did not address that finding but merely recounted that Ward “received and responded
to texts from [his fiancée], continued with his duties and was on the way from [the
dorm] to his [office] mailbox when he” witnessed the shooting. Id. at 9.7 The Board
concisely reasoned that Ward was not engaged in a “pronounced and significant
departure from work responsibilities” or “in a premediated, extreme and inherently
high-risk action wholly foreign to his employment.” Id. The Board summarily
concluded that Ward’s “injury occurred in the course of [his] employment . . . .” Id.
The Board reversed and remanded to the WCJ. Id. at 12. One commissioner
6
The “personal comfort doctrine” “recognizes that momentary departures from the work
routine do not 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.” Henderson v. WP Ventures,
Inc. (Workers’ Comp. Appeal Bd.), 269 A.3d 1272, 1276 (Pa. Cmwlth. 2022) (cleaned up). “The
personal animus exception is an affirmative defense to rebut the presumption that an injury that
occurs on the employer’s premises is work-related . . . . For the personal animus exception to
apply there must be some intention on the part of the assailant to inflict the injury for personal
reasons.” M & B Inn Partners, Inc. v. Workers’ Comp. Appeal Bd. (Petriga), 940 A.2d 1255, 1259
(Pa. Cmwlth. 2008) (cleaned up).
7
Although the Board summarized the conflicting testimony of Ward and Thomas, compare
Bd.’s Decision, 6/25/20, at 6, with id. at 7, the Board did not otherwise resolve the conflict.
7
dissented and would have affirmed, reasoning that Ward “was not furthering his
employment at the time of injury.” Id.8 Penn State filed a timely petition for review
in this Court. Pet. for Rev., 12/27/21.
II. ISSUES
Penn State raises four issues. First, Ward was not acting in the course
of his employment when he monitored his fiancée’s custody exchange. Second,
Penn State established the personal animus doctrine. Third, the Board should have
remanded to have the WCJ justify the findings that both Ward and Thomas testified
credibly. Fourth, the Board erred by reversing the suspension of Ward’s benefits.
III. ANALYSIS9
In support of its first issue, Penn State argues that the Board
misapprehended the law regarding the course and scope of employment. Penn
State’s Br. at 33. In Penn State’s view, it is well settled that the initial inquiry is
whether Ward “was actually engaged in the furtherance of an employer’s business
or affairs, or the injury occurred during an inconsequential or innocent departure
from work during working hours.” Id. at 34 (cleaned up).10
8
The WCJ complied with the remand and both parties timely appealed to the Board. WCJ’s
Decision, 3/15/21; Penn State’s Notice of Appeal, 3/31/21; Ward’s Notice of Appeal, 4/1/21. The
Board affirmed in part and reversed in part, essentially denying relief to Penn State and granting
relief to Ward. Bd.’s Decision, 12/1/21.
9
In a workers’ compensation appeal, our review is limited to determining whether an error
of law was committed, whether constitutional rights were violated, and whether necessary findings
of fact are supported by substantial evidence. Bryn Mawr Landscaping Co. v. Workers’ Comp.
Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa. Cmwlth. 2019) (citation omitted).
10
Ward counters that the WCJ and the Board credited his testimony. Ward’s Br. at 31.
Ward argues that the WCJ held that he was working for Penn State at the time of the shooting. Id.
at 31-32. Ward rejects any suggestion of a conflict between his testimony and Thomas’ testimony.
Id. at 32. In support, Ward points to Thomas’ testimony that because of Ward’s emotional state,
Ward could have misspoke. Id. at 32-33. Ward emphasizes that Penn State failed to identify any
conflicting facts that he was acting outside the scope of his employment. Id. at 33.
8
Before addressing whether Ward was injured in the course and scope of
his employment, we must resolve which testimony the WCJ credited in denying
benefits. By way of background, we liberally construe the Workers’ Compensation
Act (Act)11 and its humanitarian objective in order to benefit workers. Kmart Corp.
v. Workers’ Comp. Appeal Bd. (Fitzsimmons), 748 A.2d 660, 664 (Pa. 2000). The
Act, however, “was not intended to make the employer an insurer of its employees’
lives and health.” Id. (citation omitted).
Generally, the WCJ, and not the Board or this Court, acts as the
“exclusive arbiter of credibility . . . .” IA Constr. Corp. v. Workers’ Comp. Appeal
Bd. (Rhodes), 139 A.3d 154, 161 (Pa. 2016) (cleaned up). A WCJ faced with
conflicting evidence, “must adequately explain the reasons for rejecting or
discrediting competent evidence.” Section 422(a) of the Act, 77 P.S. § 834. The
WCJ thus must issue a “reasoned decision” “so that this Court does not have to
‘imagine’ the reasons why a WCJ finds that the conflicting testimony of one witness
was more credible than the testimony of another witness.” Amandeo v. Workers’
Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012).
When witnesses have testified live, a “mere conclusion as to which
witness was deemed credible . . . could be sufficient to render the [WCJ’s] decision
adequately reasoned.” Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828
A.2d 1043, 1053 (Pa. 2003) (cleaned up). When parties introduce deposition
testimony into the record, the WCJ must articulate “the actual objective basis for
[the WCJ’s] credibility determination” in order for the decision to be “adequately
reasoned.” Id. With respect to the “actual objective basis,” “there are countless
objective factors which may support the [WCJ’s] decision to accept certain evidence
11
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
9
while rejecting” conflicting testimony. Id. (cleaned up). For example, “other
evidence in the record may provide the objective support necessary” to explain the
WCJ’s credibility determinations when presented with conflicting deposition
testimony. Amandeo, 37 A.3d at 76.
If the Board or this Court is unable to resolve the WCJ’s credibility
determinations, then either tribunal may remand to the WCJ for clarification. See
Section 419 of the Act, added by the Act of June 26, 1919, P.L. 642, 77 P.S. § 852;
City of Phila. v. Workers’ Comp. Appeal Bd. (Smith), 860 A.2d 215, 224 (Pa. Cmwlth.
2008) (Smith). Thus, for example, the Smith Court remanded because the WCJ
apparently did not provide any articulable, objective reasons for finding the
testimony of two medical experts more credible than the testimony of two adverse
experts. Smith, 860 A.2d at 221, 223-24. On the other hand, when the WCJ reviewed
conflicting deposition testimony and contrasted the deponents’ description of the
injury’s severity, we held that the WCJ had “clearly articulated objective bases for
his credibility determinations.” Gumm v. Workers’ Comp. Appeal Bd. (J. Allan
Steel), 942 A.2d 222, 228 (Pa. Cmwlth. 2008). The Gumm Court did not have to
“imagine” the reasons as to why the WCJ found certain conflicting deposition
testimony more credible than other testimony. See id.; Amandeo, 37 A.3d at 76.
Instantly, as noted above, the WCJ had to reconcile conflicting
testimony. Specifically, Thomas’ deposition testimony that Ward watched the
custody exchange from the second floor when he saw the shooting, in contrast to
Ward’s in-person testimony that he was exiting the dorm on his way to the office
when he saw the shooting. Compare N.T. Thomas Dep., 8/14/18, at 29-31, 42-43,
with e.g., N.T. Hr’g, 5/1/18, at 17, 22; N.T. Hr’g, 1/18/19, at 38.
If the WCJ credited Thomas’ testimony, then Ward’s action was
10
unrelated to his employment. But if the WCJ credited Ward’s testimony, then the
WCJ presumably would have held that Ward was acting in the course of his
employment (and not monitoring the custody exchange) when he witnessed his
fiancée’s shooting, and the WCJ would have granted Ward’s claim petition.
Faced with conflicting testimony, the WCJ held that Ward’s testimony
“has been deemed credible[] and accepted” and Ward’s petition “had not been denied
for lack of credibility on his part” but for other reasons. WCJ’s Decision, 4/30/19,
at 44. The WCJ also held that to “the extent applicable, the testimony of . . . Thomas
has been deemed credible, and accepted, as there has been no evidence advanced to
suggest that . . . Thomas has misrepresented any aspect of his testimony.
Additionally, the testimony of . . . Thomas is supported by all aspects of his
investigation.” Id. at 46.
Despite crediting Ward’s (and Thomas’) testimony, the WCJ
nonetheless held that Ward “failed to establish that his monitoring of, and
involvement with, the custody exchange giving rise to this claim has been related to
his employment, and that this activity advanced [Penn State’s] interests.” Id.
Somewhat confusingly, the WCJ also opined that Ward’s “vantage point from the
second floor window” was not dispositive of the claim petition. Id. But whether
Ward monitored the custody exchange from the second floor window appears
material to resolving his claim petition. It is material because if Ward’s injury
occurred while he was watching the custody exchange, i.e., outside the course and
scope of his employment, then he is due no relief. See Henderson, 269 A.3d at 1276.
Because of the WCJ’s conflicting credibility findings and failure to
detail which testimony the WCJ found credible, the Board should have remanded to
the WCJ for clarification. See 77 P.S. § 852; Smith, 860 A.2d at 224. Compare Bd.’s
11
Decision, 6/25/20, at 6, with id. at 7. Absent the WCJ’s clarification, we cannot
reconcile the WCJ’s credibility determinations with the WCJ’s denial of relief.
Because the WCJ denied relief, we could intuit that the WCJ found not credible
Ward’s testimony that he witnessed the shooting as he exited the dorm. But that
inference would be in tension with the WCJ’s statement that Ward’s second floor
vantage was not dispositive.
IV. CONCLUSION
For these reasons, we vacate the Board’s decisions dated June 25, 2020,
and December 1, 2021. We remand to the Board with instructions to (a) vacate the
WCJ’s decisions dated April 30, 2019, and March 15, 2021, and (b) promptly remand
to the WCJ to draft, within 30 days of the Board’s remand, a new decision that
complies with Daniels, including identifying which testimony it found credible. The
WCJ should not adopt any of the parties’ proposed findings of fact and conclusions
of law, to the extent they conflict. Jurisdiction relinquished.
LORI A. DUMAS, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Pennsylvania State University, :
Petitioner :
:
v. : No. 1425 C.D. 2021
:
John Ward (Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 22nd day of February, 2023, we vacate the decisions of
the Workers’ Compensation Appeal Board (Board) dated June 25, 2020, and
December 1, 2021. We remand to the Board with instructions to (a) vacate the
decisions of the Workers’ Compensation Judge (WCJ) dated April 30, 2019, and
March 15, 2021, and (b) promptly remand to the WCJ to draft, within 30 days of the
Board’s remand, a new decision explicitly detailing which testimony it found
credible or not credible in accordance with Daniels v. Workers’ Compensation
Appeal Board (Tristate Transport), 828 A.2d 1043 (Pa. 2003). For clarity, the WCJ’s
decision should not verbatim adopt any conflicting findings of fact and conclusions
of law.
Jurisdiction relinquished.
LORI A. DUMAS, Judge