O'Rourke v. Workers' Comp. Appeal Bd., PICS Case No. 14-0014 (Pa. Commw. Jan. 8, 2014) McCullough, J. (23 pages).

COMMONWEALTH COURT

The Legal Intelligencer

LABOR AND EMPLOYMENT

Workers' Compensation • Assault • "Bunkhouse Rule"

O'Rourke v. Workers' Comp. Appeal Bd., PICS Case No. 14-0014 (Pa. Commw. Jan. 8, 2014) McCullough, J. (23 pages).

Claimant, employed by her son to provide attendant care for him at her residence in exchange for an hourly wage, was "required by the nature of her employment" to live with employer, and was entitled to workers' compensation where employer assaulted her while she slept. Reversed.

Claimant, employed by her son to provide attendant care for him at her residence in exchange for an hourly wage, filed a claim for workers' compensation, alleging that she sustained work-related injuries while in the course of her employment. Specifically, claimant averred that at 1:30 a.m., employer cut her throat with a butcher knife and inflicted three other stab wounds while she slept.

The workers' compensation judge (WCJ) concluded that, based on the record as a whole, claimant demonstrated that her employment required her to be on the employer's premises at the time she sustained her injuries and granted the claim. Furthermore, employer, who did not attend the hearing, failed to establish that the assault was motivated by personal animosity against claimant.

On appeal the board reversed, concluding that claimant failed to prove that she was required to be on the premises at the time of her injury because, at that time, claimant had completed her duties and embarked on a course of recreation separate and distinct from the duties of her employment. The Commonwealth Court reversed.

Injuries may be sustained in the course of employment where the employee, although not actually engaged in the furtherance of the employer's business or affairs is "required by the nature of his employment" to be present on the employer's premises. The WCJ's findings collectively established that claimant was required by the nature of her employment to live with employer. Additionally, claimant's injury is compensable under the "bunkhouse rule," in that she was considered to be in the course of employment while sleeping on the premises, even though she was not actively furthering the interests of employer at the time of the injury. The "required by the nature of employment" language in the Workers' Compensation Law and/or the common law bunkhouse rule include those situations where the evidence establishes that an employee lives on the premises because s/he is "practically required" to do so.

Here, as found by the WCJ, claimant was hired to provide a variety of attendant care services to employer for a period of up to 64 hours per week; employer could request claimant to provide care anytime claimant was awake; and claimant worked evening hours on the weekend and evening hours on a sporadic basis during the weekdays. Significantly, employer did not have another residence in which to receive attendant care, and the only feasible way for claimant to provide employer with attendant care was to do so in her home. Given the demands of claimant's job duties as a health care provider and the hours of her employment, combined with the fact that employer did not have his own residence or anywhere in which to receive attendant care, the WCJ's findings establish that, at the very least, claimant was "practically required" by the nature of her employment to live with employer.