Safety and OSHA News

Bitten by dog while on smoke break: Will he get workers’ comp?

A restaurant cook was taking a smoke break when he was bitten by a co-worker’s dog. The restaurant denied the cook’s workers’ comp claim. How did a court rule in this case?

Sean Sovern worked one day a week as a line cook at the 1912 Hoover House Restaurant in Waynesboro, PA. He also had another full-time job.

On March 16, 2010, one of Sovern’s co-workers said her father would be stopping by the restaurant with her dog. Sovern went outside to have a cigarette after the dog arrived. While on his smoke break, Sovern had a conversation with the co-worker’s father. Sovern petted the dog and let it lick his face. When he went to stand up, the dog growled and bit him on the lower lip.

The restaurant permitted Sovern to take smoke breaks. He was in an approved smoking area, near an ash tower the restaurant supplied for employees’ use.

Sovern missed six days of work because of the dog bite and had numerous medical bills. He had a permanent visible scar on the lower right part of his lip and another scar in the center of his chin.

When he applied for workers’ comp benefits for disfigurement, medical bills and counsel fees, the restaurant denied the claim, saying he wasn’t in the course and scope of work at the time he was bitten by the dog.

A workers’ comp judge held a hearing and as a result granted Sovern’s claim. The judge said Sovern had met his burden of proof that his injuries occurred while in the course and scope of his employment.

The WCJ awarded Sovern 63 weeks of workers’ compensation benefits “based on the permanent scarring of his lower lip and chin.”

To calculate his average weekly wage for payments, the WCJ used the $31 a week he earned at the restaurant and the $900 a week he earned at his full-time job, for a total of $931.

The restaurant appealed to the Workers’ Compensation Appeal Board, arguing:

  • Sovern wasn’t in the course and scope of his work when he was injured
  • The disfigurement award exceeded the typical range for such injuries, and
  • There wasn’t substantial evidence regarding Sovern’s full-time job to calculate his average weekly wage.

The WCAB affirmed the overall decision that the injury was in the course and scope of work and also affirmed the 63-weeks of benefits. However, the board concluded the calculation of Sovern’s average weekly wage wasn’t supported by substantial evidence. The Board sent that matter back to the WCJ to recalculate Sovern’s weekly earnings.

The WCJ recalculated the weekly wage amount (the court decision doesn’t state the final number). The restaurant appealed again, but this time the only issue was whether Sovern was in the course and scope of his job when he was bitten.

Pennsylvania’s Commonwealth Court agreed that Sovern was in the course and scope of his job when he was injured:

“Claimant’s 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. 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, Claimant’s 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.”

What do you think about this opinion? Let us know in the comments.

(1912 Hoover House Restaurant v. Soverns, Commonwealth Court of Pennsylvania, No. 309 C.D. 2014, 11/10/14)

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  1. If the owner of the restaurant had a not dog policy, then I would tell them to sue the dog owner.

    • Trevor Harvey says:

      I know WC law can be different in each country, however here in Australia it would also be accepted as WC claim. The incident happened during normal working hours at a designated work break in an area that the employer set up for that purpose, fairly open and closed case really.

      As for a no pets allowed policy it would still be classified as a workplace incident. I do have a no pets policy and irrespective of that policy in a no fault WC system would still be deemed a WC claim. The next best thing the employer can do is discipline the employee on breaching the policy.

  2. Typical beauracratic stupidity. When did smoking become scope of work? Having a smoking area with an ashtray is a convenience to the employee and helps the employer keep butts and other crap from accumulating on the ground that then require additional housekeeping. I like dogs and I feel for the employee’s issue but that is a civil lawsuit, not a workers’ comp against the employer.

  3. It seems to me having read a lot of these types of scenarios published by Safety News Alert that describe the employer as having authority in accepting or denying Workers compensation claims. I work in Oregon and have dealt with over 600 comp claims personally and not a single claim has been decided by my employer. Maybe it’s just Oregon. Why is it always between the employer and employee? Don’t seem right.

  4. Benjamin Stivick says:

    @rigatrony The company does not have authority to accept or deny the claim, only to dispute it if they feel it was not in the course of work that the injury occurred. It is much the same as a company being able to dispute an unemployment claim if they feel it is false.
    The restaurant could do little to prevent this from occurring as the dog was not inside the restaurant. Provided the management or owner even knew the dog was there, as typically smoke break areas are “Out back” and out of sight of the restaurant patrons, all they could do is ask the dog handler to leave the property. The employee was the one who chose to interact with the dog and placed himself in the situation to be bit.
    I agree with Sam that this should have been handled as a civil action between the dog’s owner and the employee.

    @Jill, depending on state and local laws or ordinances the best the restaurant could probably do would be to enforce a “No Loitering” policy and call the police if the handler would not leave the property with the dog. Again this is provided they even knew the dog was there.

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