Appeal No. 2051238) (Claim No. 2016011777)
Weirton Medical Center, Inc., by Peter R. Rich, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Patricia L. Powelson, by
Christopher J. Wallace, her attorney, filed a timely
issue on appeal is the compensability of the claim for a left
humerus fracture. On October 30, 2015, the claims
administrator rejected Ms. Powelson's claim. The Office
of Judges reversed the claims administrator's decision
and held the claim compensable in its March 25, 2016, Order.
The Order was affirmed by the Board of Review on August 31,
2016. The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the
case is mature for consideration.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Powelson worked as a physical therapy assistant in the
physical therapy clinic at Weirton Medical Center. The
physical therapy clinic is located across the street from the
main medical center building. On October 27, 2015, Ms.
Powelson tripped and fell on a curb outside of the entrance
to the main medical center building. She was treated in the
emergency room at Weirton Medical Center where she was
diagnosed with a closed fracture of the left humerus head.
That same day, the Employee's and Physician's Report
of Injury was completed by Ms. Powelson and Martin Escobar,
M.D. The claims administrator rejected the claim on October
30, 2015, finding that Ms. Powelson was not performing a
function of her employment when she fell.
Altman, M.D., treated Ms. Powelson on November 2, 2015. Dr.
Altman noted a left shoulder x-ray showed a supraspinatus
outlet fracture in the shoulder joint with displaced greater
tuberosity fracture. Dr. Altman diagnosed complex three part
proximal humerus head fracture. He recommended an open
reduction and internal fixation, which was performed on
November 3, 2015.
Beatty, BSN, the employee health nurse at Weirton Medical
Center, stated in an affidavit dated March 2, 2016, that Ms.
Powelson worked in a facility located at 171 American Way,
which was across the street from the main campus of Weirton
Medical Center, which is located on Colliers Way. According
to Ms. Beatty, Ms. Powelson was injured at approximately
11:15 a.m. on October 27, 2015, when she tripped on a curb
outside of the main campus and fell to the ground. She was on
the main campus to attend a book fair that was open to the
public and to eat lunch at the hospital cafeteria. The injury
occurred while Ms. Powelson was on her unpaid lunch break and
engaged in personal activities unrelated to her employment
with the Physical Rehabilitation Department.
affidavit dated March 2, 2016, Clayton Henderson, the
Physical Rehabilitation Director at Weirton Medical Center,
stated Ms. Powelson's usual work location was located at
171 American Way, which was a building across the street from
the main hospital campus. She was scheduled to work at her
normal work location from 7:30 a.m. until 4:00 p.m. on
October 27, 2015. He had not requested nor directed Ms.
Powelson to go to the main campus for work purposes. He
believed she was injured while on her unpaid lunch break.
March 4, 2016, Ms. Powelson testified at a hearing before the
Office of Judges. She stated the outpatient rehab clinic was
located in a building across the street from the main
hospital.. She went to the main hospital building on the day
of her injury to attend a book fair. Flyers were posted
around the hospital and emails were sent notifying the
employees about the book fair, which was open to the public.
She also planned on having lunch in the cafeteria. In her
opinion, she was on the clock when she was injured. She went
to the book fair after she finished working with her last
patient that morning, but before noon, which is when her
lunch break typically started. Ms. Powelson was not asked by
her supervisor to go to the main building on the day of her
injury. It was a general pattern of practice for her to
deliver items from her building to Mr. Henderson in the main
building and vice versa.
March 25, 2016, Order, the Office of Judges noted that both
parties cited Williby v. West Virginia Office of
Insurance Commissioner, 224 W.Va. 358, 686 S.E.2d 9
(2009), for the principle that generally an injury while an
employee is coming and going to work is not compensable. Ms.
Powelson argued she was on her work premises when she fell
and Weirton Medical Center, Inc., argued she was not on her
work premises when she fell. The Office of Judges found that
Ms. Powelson was on Weirton Medical Center Inc.'s
premises when she fell. The Office of Judges went on to note
that in Morton v. West Virginia Office of Insurance
Commissioner, 231 W.Va. 719, 749 S.E.2d 612 (2013), the
Court determined that "coming and going" cases and
"special errand" and "zone of employment"
cases were not helpful when the claimant sustained an injury
"on the employer's premises during an undisputed
'break'" in work. Therefore, the Office of
Judges determined Williby was not particularly
helpful in this case, because Ms. Powelson was on an
undisputed break from work and the compensability her claim
depended on specific facts.
Office of Judge first examined whether Ms. Powelson was on
her lunch break at the time of the fall. Weirton Medical
Center submitted two affidavits stating Ms. Powelson was on
her lunch break when she fell. However, Ms. Powelson
testified that she was not on her lunch break as she left the
clinic, having completed her work. She did not clock out and
she receives one half hour paid lunch break and one half hour
unpaid lunch break every day. The Office of Judges also
determined it was impossible to tell if Ms. Powelson was on
the paid or unpaid portion of her lunch break. Additionally,
the employees received a discount and were encouraged to eat
in the cafeteria. The Office of Judges determined the
employee discount could be determined to be a benefit to the
employees. It also found that it was not clear that Ms.
Powelson was on her lunch break when she fell. However, even
if she was on her lunch break, the preponderance of evidence
indicated Ms. Powelson was "on the clock."
Office of Judges next examined whether the book fair
benefitted Weirton Medical Center. Ms. Powelson testified she
left the clinic to attend a book fair that was sponsored by
an auxiliary organization of the hospital. The employees are
encouraged to attend the book fair and more employees
generally attend than the general public. The funds raised
are used to purchase items for the hospital and/or the
patients. The Office of Judges noted this testimony was not
rebutted and, therefore, found that the book fair benefitted
the hospital and Ms. Powelson's attendance was
the Office of Judges examined the pattern of the
employees' taking items to and from the main building to
the clinic. Ms. Powelson testified she normally engaged in
this pattern of behavior and was going to check with her boss
while she was at the main hospital building the day she was
injured. It determined that Ms. Powelson's pattern of
checking with her boss to see if items needed to be taken
from the main hospital to the clinic could be seen as a
benefit to the employer.
on all of those factors, the Office of Judges determined that
Ms. Powelson was injured on the Weirton Medical Center's
premises while in the course of and as the result of her
employment. It reversed the claims administrator's
October 30, 2015, denial of the ...