Kush v. Workers' Comp. Appeal Bd.

186 A.3d 1047
CourtCommonwealth Court of Pennsylvania
DecidedMay 17, 2018
DocketNo. 1688 C.D. 2017
StatusPublished
Cited by2 cases

This text of 186 A.3d 1047 (Kush v. Workers' Comp. Appeal Bd.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kush v. Workers' Comp. Appeal Bd., 186 A.3d 1047 (Pa. Ct. App. 2018).

Opinion

OPINION BY JUDGE McCULLOUGH

James M. Kush (Claimant) petitions for review of the October 26, 2017 order of the Workers' Compensation Appeal Board (Board) affirming the order of the Workers' Compensation Judge (WCJ), which dismissed Claimant's claim petition.

Facts and Procedural History

Claimant was employed by Power Contracting Company (Employer) as a union electrical worker. (WCJ's Finding of Fact (F.F.) No. 9; Reproduced Record (R.R.) at 29a, 123a.) On January 12, 2015, he was involved in a motor vehicle accident while driving to work. (WCJ's F.F. No. 10; R.R. at 123a.) Claimant sustained substantial injuries in the accident.

On April 13, 2015, Claimant filed a claim petition for workers' compensation benefits based upon injuries that he suffered during the January 12 accident.1 (R.R. at 1a-7a.)

*1049In his petition, Claimant asserted that, at the time of the injury, he was employed by Employer as a traveling employee, or, alternatively that he was on a special mission for Employer. (R.R. at 2a.) On April 29, 2015, Employer filed an answer to the claim petition, wherein it denied all allegations. (R.R. at 11a-15a.)

The WCJ conducted hearings on May 5, 2015, and June 23, 2015. Claimant testified on his own behalf, explaining that he had been employed as a union electrical worker for both Vantage Corporation (Vantage) and Employer for the past three years.2 (R.R. at 30a.) In that capacity, he served as an electrical foreman and managed numerous different jobs for each employer, often at the same time. (R.R. at 32a.) Claimant stated that he was paid separately by each employer. (Id. ) Claimant's testimony outlined those jobs, and he referenced a detailed, day-by-day account of where and for which company he worked between the dates of September 29, 2014, and June 15, 2015, during his testimony at the June 23, 2015 hearing. (R.R. at 85a.) Claimant testified that he often moved from one job to another, sometimes working at different job sites on the same day. He also stated that it was common for him to switch between Vantage and Employer, explaining that "everybody just pretty much moved fluidly through from company to company." (R.R. at 34a.)

Claimant further testified that Vantage provided him with a company truck, and that he used that truck to travel to jobs for both Vantage and Employer. (WCJ's F.F. No. 12; R.R. at 39a-40a, 124a.) On a typical day, he did not visit the corporate headquarters of either company; rather, he drove directly from his home to his assigned job site. (R.R. at 34a-35a, 41a.) Vantage also provided him with a credit card to purchase gas for the truck. (R.R. at 43a.) He was required to maintain a detailed travel log, itemizing each cost with separate cost codes and job numbers for Vantage and Employer. (Id. ) Based on this accounting, Vantage paid for the fuel used to travel to its jobs, and Employer paid for the fuel used to travel to its jobs. (Id. )

Claimant testified that, on the date of the accident, he was working at a job for Employer in Shaler Township along Route 8 (the Shaler Job Site). He testified that he left his home at about 4:30 a.m. on January 12, 2015. While traveling north on Route 403 to the job, he struck a patch of ice on the road and crashed into a guardrail. (R.R. at 50a-51a.)

Claimant testified that, on the date of the accident, he was managing four different jobs for Employer and five jobs for Vantage. (R.R. at 73a-74a.) However, he had worked almost exclusively for Employer from on or about December 22, 2014, to January 12, 2015. (WCJ's F.F. No. 10; R.R. at 76a-77a, 123a.) Further, he had been working almost exclusively at the Shaler Job Site on the seven days that he *1050worked prior to January 123 and had been working almost exclusively at the Shaler Job Site since December 8, 2014. (WCJ's opinion, at 4; R.R. at 123a.) Claimant represented that he did not receive compensation for his travel time unless he needed to pick up a piece of equipment on his way to a job, (R.R. at 78a), or was traveling from the job of one employer to that of another. (R.R. at 96a.)

On October 6, 2016, the WCJ issued his decision and order dismissing Claimant's petition, finding that no exception to the "coming and going" rule applied and concluding that Claimant's injury occurred during his commute to a fixed job location. (R.R. at 120a, 125a-26a.)

On October 19, 2016, Claimant appealed the WCJ's order. (R.R. at 129a.) On October 26, 2017, the Board issued its decision and order affirming the decision of the WCJ. (R.R. at 136a.) Claimant timely filed a petition for review with this Court on November 14, 2017. (R.R. at 149a.)

Discussion

On appeal to this Court,4 Claimant argues that the Board erred in affirming the decision of the WCJ, which found that Claimant was not acting in the course of his employment when he was involved in the motor vehicle accident on January 12, 2015. Claimant asserts that the circumstances of his injuries fell under two exceptions to the "coming and going" rule. Specifically, he contends that he had no fixed place of employment and that his employment agreement with Employer included the time spent for transportation to and/or from work.

Section 301(c) of the Workers' Compensation Act (Act)5 provides, in relevant part:

The terms "injury" and "personal injury" shall be construed to mean an injury to an employe ... arising in the course of his employment and related thereto.... The term "injury arising in the course of employment" as used in this article ... shall include all ... injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere ....

77 P.S. § 411.

Whether an employee is acting within his course of employment at the time of the injury is a question of law to be determined by the Court based on the WCJ's findings of fact, and subject to de novo review. Wachs v. Workers' Compensation Appeal Board (American Office Systems) , 584 Pa. 478, 884 A.2d 858, 862 (2005). "Generally, under the 'going and coming rule,' injuries sustained while an employee is traveling to and from his place of employment are considered outside the course and scope of employment and are, therefore, not compensable under the Act."

*1051Holler v. Workers' Compensation Appeal Board (Tri Wire Engineering Solutions, Inc.) , 104 A.3d 68, 71 (Pa. Cwmlth. 2014) (citing Wachs , 884 A.2d at 861-62 ). However, in

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Bluebook (online)
186 A.3d 1047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kush-v-workers-comp-appeal-bd-pacommwct-2018.