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Bartlett v. Workers' Compensation Appeal Board6/11/2002
Leonice Bartlett (Claimant) taught at The Christian Academy (Employer). Claimant also was the junior class advisor. The junior class sold doughnuts and bagels at school in the mornings as a fundraising activity. Claimant picked up the food before school. On January 12, 1994, Claimant drove to the Family Affair restaurant on Philadelphia Pike in Wilmington, Delaware for pick up. Claimant parked and exited her vehicle. Claimant slipped on ice in front of the restaurant's entrance and suffered a compound fracture of her right tibia and fibia. Claimant returned to work and continued in the employ of Employer through the 1995-1996 school year.
On January 8, 1997, Claimant petitioned for benefits and alleged that she suffered a " ompound fracture to right leg tibia and fibula, nonunion of the fracture required bone graft surgery, osteoporosis, brittle and broken bones in right foot, bilateral carpal tunnel syndrome in both hands from crutch use requiring future surgery" as a result of her January 12, 1994, fall. Claim Petition, January 8, 1997, at 1; Reproduced Record (R.R) at 3a.
Claimant testified that her immediate supervisor, Tim Sierer (Sierer), Employer's high school headmaster and principal, was aware of the fundraising activity. Notes of Testimony, January 21, 1998, (N.T.) at 27; R.R. at 35a. Claimant never received instructions, limitations, or restrictions on her personal participation in the class fundraising activities. N.T. at 44; R.R. at 52a.
Employer presented the deposition testimony of Sierer. Sierer testified that neither he nor any representative of Employer ever instructed Claimant to personally participate in the purchase of doughnuts and bagels for fundraising. Deposition of Timothy Sierer, July 31, 1998, (Sierer Deposition) at 10-11; R.R. at 149a-150a. Sierer admitted that he saw the doughnuts in the morning but that he was "not . . . aware at the time who was actually getting them because I know for a while students picked them up as well." Sierer Deposition at 11; R.R. at 150a. Sierer also admitted that he probably ate the doughnuts from time to time. Sierer Deposition at 54; R.R. at 193a.
Employer also presented the deposition testimony of Frank W. Hankins, Jr. (Hankins), Employer's business manager at the time of Claimant's injury, who testified that he did not instruct Claimant on fundraising. Deposition of Frank W. Hankins, Jr., July 31, 1998, (Hankins Deposition) at 7; R.R. at 215a. On cross-examination, Hankins admitted that it was not his job to review and approve fundraisers. Hankins Deposition at 10; R.R. at 218a. Hankins also admitted that he bought doughnuts from the remnants of the day's sale in the teacher's lounge. Hankins Deposition at 11; R.R. at 219a.
The Workers' Compensation Judge (WCJ) dismissed Claimant's petition. The WCJ found Claimant's testimony that the fundraising activities of the junior class at Employer was known and approved by the administration credible, but found Claimant's testimony that the Administration had actual knowledge of and approved of her participation in these fundraising activities not credible. The WCJ found Hankins, Sierer, and Dutton credible. The WCJ also made the following relevant finding of fact:
23. This WCJ finds that while it was the part of the Claimant's job to supervise fundraising activities for the Junior class at The Christian Academy, it was not part of her job to participate in those activities. Her actions in buying donuts and bagels for fundraising activities exceeded the boundaries of 'supervising' the fund raising. This activity was not within the course and scope of her employment. Therefore, this WCJ finds that the Claimant was not within th
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