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Cook bitten by co-worker’s dog while on smoke break qualifies for comp

November 21, 2014 by  
Filed under Blog

A part-time restaurant cook who was bitten by his co-worker’s dog should receive workers compensation benefits for the attack, even though he was on his smoke break when it happened, a Pennsylvania appeals court has ruled.

Sean Soverns worked one night a week as a line cook at the 1912 Hoover House Restaurant in Waynesboro, Pennsylvania, court records show. He also worked 60 to 65 hours a week in the paint department of an unidentified manufacturing company.

Mr. Soverns filed a workers comp claim in April 2010 alleging that he had been bitten by a 1912 Hoover House co-worker’s dog a month earlier, records show. The co-worker’s father had stopped by the restaurant with the dog, and the dog bit Mr. Soverns as he was petting the animal during a smoke break.

Mr. Soverns, who missed six days of work after the attack, sought payment from 1912 Hoover House for disfigurement, medical bills and counseling fees related to his facial lacerations, according to filings. The restaurant denied the request, saying the dog bite happened outside the course and scope of Mr. Soverns’ employment.

A Pennsylvania workers comp judge ruled in December 2010 that Mr. Soverns was bitten during the course and scope of his employment and was due benefits from the dog attack, records show. The judge ruled that Mr. Soverns’ benefits should be based on an average weekly wage of $933 — $31 of which came from 1912 Hoover House and $900 of which came from the manufacturing job.

1912 Hoover House appealed the decision, arguing in part that the judge incorrectly factored in Mr. Soverns’ manufacturing job into average weekly wage, filings show. The Pennsylvania Workers’ Compensation Appeal Board ultimately ruled that Mr. Soverns was indeed due workers comp benefits, after earlier finding that his average weekly wage had incorrectly included his manufacturing job wages.

The Pennsylvania Commonwealth Court upheld that ruling Monday. In its decision, the appellate court said Mr. Soverns was in a work-related area when he petted the dog during his smoke break.

1912 Hoover House “did not contradict that (Mr. Soverns) was in the regular smoke break area, or that he was within three feet of the ashtray tower supplied by (1912 Hoover House) when he was injured,” the ruling reads. “It was within the province of the (workers comp judge) to weigh the evidence in (Mr. Soverns’) favor and find that he was on (1912 Hoover House’s) premises when the injury occurred.”

The restaurant argued in court filings that Mr. Soverns had been warned by its owner not to pet the dog, and that he abandoned his work when he took a smoke break. However, the appellate court disagreed with those arguments.

Mr. Soverns’ “initial smoke break was a temporary departure from his work to administer to his personal comforts and, thus, did not take him out of the course of his employment,” the ruling reads. “Smoking during intervals that do not interfere with work duties have been found to be acceptable deviations from work. These types of ‘intervals for leisure’ are considered to be within the scope of employment. Moreover, (Mr. Soverns’) subsequent act of petting his co-worker’s dog also did not take him out of the scope of employment because it was an inconsequential departure from his job as a line cook.”

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