IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lemont Blackmon, :

Petitioner :

:

 v. : No. 399 C.D. 2022

: SUBMITTED: November 14, 2022

Sodexo Global Services (Workers’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: December 7, 2022

Lemont Blackmon (Claimant) petitions for review from the order of the 

Workers’ Compensation Appeal Board affirming the opinion and order of the 

Workers’ Compensation Judge (WCJ) that denied his claim for benefits resulting 

from a motor vehicle accident. The WCJ and Board concluded that the injury did 

not occur in the course and scope of his employment for Sodexo Global Services 

(Employer). We affirm.

The facts, pared to the essentials necessary for the disposition of this 

case, are as follows. Claimant suffered a work-related injury to his right elbow in 

August 2019 while working for Employer at West Chester University. That injury 

resulted in no wage loss but required physical therapy, for which Employer issued a 

medical-only notice of compensation payable. Claimant was receiving physical 
2

therapy several times a week at a facility in Ridley Park. Claimant and Employer 

reached an agreement by which on days he received therapy he would start work 

earlier in the day at 5:00 a.m., work some hours, leave for his therapy appointment 

in Ridley Park, and then be free to do as he pleased for the rest of the workday until 

his supervisor clocked him out. Claimant was expected to go to therapy as part of 

his employment to recover from his elbow injury. Claimant would be paid for a full 

workday, with the understanding that the therapy facility was close to his home in 

Philadelphia and that to return to West Chester University’s campus would leave 

him with little remaining work time.

On September 20, 2019, after leaving work and going to therapy, 

Claimant was on his way home, with a brief detour to pick up his dog from a friend’s 

house. After picking up his dog, Claimant was involved in a motor vehicle accident 

while he was still on the clock at his job but free from further work responsibilities. 

The accident left him with extensive injuries which prevented his return to work.

Claimant filed a claim for benefits for the injuries sustained in the 

accident. The WCJ denied that claim because she concluded that his injuries were 

not work-related. The Board affirmed.

On appeal, Claimant raises a single issue:

Should an employee injured in an accident while driving 

home after receiving therapy for a prior work[-]related 

injury be entitled to compensation benefits where the 

evidence established that the employee changed his work 

schedule to come in early to work several hours before 

going to therapy and the employee was paid for the time 

period when the accident occurred?

(Claimant’s Br. at 4.)
3

Both parties cite this Court’s decision in Berro v. Workmen’s 

Compensation Appeal Board (Terminix International, Inc.), 645 A.2d 342 (Pa. 

Cmwlth. 1994), in support of their respective positions. In Berro, this Court 

determined that a claimant’s injury suffered while driving to an appointment 

necessary for treatment as a result of a work-related injury was work-related, and 

thus “in the course of his employment,”

1 because “but for driving to his physician

for treatment of his earlier work-related injury, [c]laimant would not have been in a 

position to be involved in the accident which caused his further injuries.” Id. at 345 

(emphasis in original). The Court reasoned that “it is in the interest of the employer 

that [c]laimant seek rehabilitation and treatment in order to recover from the initial 

work-related injury” and that the employer will “clearly benefit by not having to pay 

compensation as a result of [c]laimant’s recovery and return to work.” Id.

In the present case, Claimant asks us to extend the holding in Berro to 

cover those, like him, who are leaving a therapy appointment necessitated by a workrelated injury as an alleged special circumstance in furtherance of the business of 

Employer. However, as noted by Employer, Berro is distinguishable in that that 

claimant’s trip was to physical therapy for an earlier work-related injury, and thus 

qualified for the “special circumstances” exception to the general “going and 

coming” rule that an employer is not liable for injuries that occur while the employee 

1 Section 301(c)(1) of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 735, as 

amended, 77 P.S. § 411(1), defines a compensable injury for purposes of the Act as “arising in the 

course of . . . employment and related thereto” and states that the phrase “‘injury arising in the 

course of . . . employment’ . . . shall include . . . injuries sustained . . . in the furtherance of the 

business or affairs of the employer, whether upon the employer’s premises or elsewhere.” A 

claimant bears the burden of establishing that the injury arose in the course of employment and 

was related thereto. Wachs v. Workers’ Comp. Appeal Bd. (Amer. Off. Sys. and Donegal Mut. Ins. 

Co.), 884 A.2d 858, 862 (Pa. 2005).
4

is traveling off premises.2 In the instant case, Claimant had finished his physical 

therapy appointment and, although being paid, was left to his own devices to do as 

he pleased. As a courtesy, Employer paid Claimant’s salary for the remainder of the 

workday to avoid his making a pointless trip back to the West Chester University 

campus. However, Claimant’s workday was, for all intents and purposes, finished

for the day, as he had concluded any activities that could be considered a “special 

assignment for the employer” or “furthering the business of the employer.” See 

Storms v. Workers’ Comp. Appeal Bd. (Big Boulder/Jack Frost Ne. Land Co. and 

EBI Ins. Co.), 782 A.2d 20, 23-24 (Pa. Cmwlth. 2001) (claimant injured in motor 

vehicle accident while traveling to employer-sponsored “family day” picnic at 

amusement park was subject to “going and coming” rule where attendance at the 

picnic was not mandatory and loosely restricted and was not subject to “special 

circumstances” exception because attendance at picnic did not “further[] the 

business of the employer”); see also Cooper v. Workers’ Comp. Appeal Bd. 

(Armstrong World Indus., Inc.) (Pa. Cmwlth., No. 1407 C.D. 2015, filed July 13, 

2016), slip op. at 17 (distinguishing Berro in the context of denial of unreasonable 

contest attorney fees because “[h]ere, unlike in Berro, [c]laimant’s injury did not 

occur while he was traveling to or in the process of receiving medical treatment when 

he suffered the unwitnessed fall at nursing center” and claimant was not there with 

prospect of returning to work).

3 We agree with Employer that the outcome might 

2

“[A]n injury sustained while an employee is going to or coming from work does not occur 

in the course of employment unless [inter alia] . . . (4) special circumstances are such that claimant 

was furthering the business of the employer.” Peterson v. Workmen’s Comp. Appeal Bd. (PRN 

Nursing Agency), 597 A.2d 1116, 1119 (Pa. 1991).

3 Under Section 414(a) of the Court’s Internal Operating Procedures, 

an unpublished memorandum opinion, although not binding precedent, may be cited for its 

persuasive value. 210 Pa.Code § 69.414(a).
5

well be different if Claimant were injured while returning to work. However, that is 

not the case here where Claimant had no further obligation to Employer for the rest 

of the day.

In light of the foregoing, we affirm.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lemont Blackmon, :

Petitioner :

:

 v. : No. 399 C.D. 2022

:

Sodexo Global Services (Workers’ :

Compensation Appeal Board), :

Respondent :

O R D E R

And now, this 7

th day of December, 2022, the Order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita