PA court holds dog bite during smoking break qualifies for workers’ comp

A Pennsylvania court recently found that an employee’s dog bite injury, which occurred during a brief smoking break, occurred in the course of employment.

Most people in Pittsburgh know they are entitled to workers' compensation benefits if they are hurt in the course of their job duties. Determining the compensability of injuries that are less directly related to work - such as injuries that occur during commutes or breaks - can be more challenging. A Pennsylvania appeals court recently considered the issue of workplace injuries occurring outside of typical job duties while evaluating the case of an employee who was bitten by a co-worker's dog while taking a brief break from work.

A contested on-the-job injury

According to official documents from the appeals court, the employee worked one night each week as a line cook at a restaurant. He also worked 60 to 65 hours per week with another employer. During a shift at the restaurant, the employee took a smoking break at the same time that a co-worker's father stopped by with the co-worker's dog. The employee was petting the animal when it bit him, resulting in facial wounds.

The employee sought workers' compensation benefits for medical expenses as well as permanent disfigurement, but his claim was denied. The employer contended that the employee was not hurt while performing work-related duties and, furthermore, that the employee chose to pet the dog despite the owner cautioning him not to.

In 2010, a workers' compensation judge found that the injury was compensable. The employee was awarded workers' compensation benefits to reflect lost wages from both jobs. The employer appealed the decision with the workers' compensation judge and then with a higher appeals court.

Temporary departures from work

In November 2014, the appeals court upheld the lower court's ruling. The court held that the man's injury was compensable, in light of the following facts:

  • The injury took place on the employer's premises. The man was standing in the designated smoking area, less than three feet from the employer-provided ashtray, when he sustained his injury.
  • The employee was not openly careless in petting the dog. He did not antagonize the animal, and he held out a hand before petting it to determine whether it would be safe to do so.
  • The employee was not hurt outside of the course of his employment. His smoking break and the decision to pet the dog only represented a temporary departure from work.

Past court cases have established that reasonable temporary departures from work occur within the course of employment. Furthermore, smoking breaks are generally recognized as acceptable intervals of leisure during work.

Appealing denials

In cases that are complex or involve unusual circumstances, it can be difficult for employees to prove the accident was work related, and it is not unusual for employers to deny a claim. According to the Pennsylvania Department of Labor & Industry, employees can appeal denials to the Office of Adjudication. Then, a workers' compensation judge determines whether the injury is compensable. The employer or employee can appeal the judge's decision to the Workers' Compensation Appeal Board and, after that, to the Commonwealth Court.

At these higher levels of appeal, professional representation may significantly affect the final claim outcome. People who have been injured in unusual circumstances or received notice of a claim denial should consider meeting with a workers' compensation attorney. An attorney can provide advice on the best way of pursuing a claim, based on state law and the particular facts of the case.

Keywords: workers' compensation, injury,