Olszewski v. Workmen's Compensation Appeal Board

648 A.2d 1255, 167 Pa. Commw. 521, 1994 Pa. Commw. LEXIS 546

Opinions

SMITH, Judge.

Edmund J. Olszewski (Claimant) petitions for review of the September 30, 1993 order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s decision dismissing his claim petition against Royal Chevrolet (Employer) pursuant to the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 — 1031. The issues presented are whether the Board erred as a matter of law in failing to find that Claimant was acting within the course and scope of employment when he sustained injuries in an accident while driving a vehicle provided to him by Employer, and in failing to find that Claimant’s injury was sustained on Employer’s premises.¹

The referee found that Employer, Royal Chevrolet, employed Claimant as a salesman and allowed him to use one of Employer’s cars for business or personal use as a supplemental employee benefit. On April 11, 1989, Claimant was driving to work in the car when he was hit from behind by a school bus. The accident occurred on Jefferson Avenue, a public road, immediately in front of Employer’s place of business six minutes before Claimant was due to report to work. Claimant filed a claim petition for workers’ compensation benefits alleging that he was injured in the course of his employment. The referee bifurcated the issues, and held a hearing only with respect to whether Claimant was in the course and scope of employment when the accident occurred. The referee concluded as a matter of law that Claimant’s use of Employer’s automobile was for personal, not business reasons and Claimant did not sustain an injury in the course and scope of his employment with Employer. The Board affirmed the referee’s decision.²

Claimant argues that he was acting within the course and scope of his employment at the time of the accident because he was operating a vehicle which was provided by Employer as part of his employment contract and in furtherance of Employer’s business interests. A claimant has the burden to prove that an injury arose in the course of employment and was related thereto. Krawchuk v. Philadelphia Elec. Co., 497 Pa. 115, 439 A.2d 627 (1981). This Court has held that an injury will be considered in the course of a claimant’s employment in two situations: where the employee is injured while actually engaged in the furtherance of the employer’s business or affairs; or where the employee is injured on the premises of the employer even though not actually engaged in the furtherance of the employer’s business or affairs, but only if the nature of his or her employment requires the employee’s presence. Pypers v. Worker’s Compensation Appeal Board (Baker), 105 Pa.Commonwealth Ct. 448, 524 A.2d 1046 (1987).

Whether an employee is acting within the course and scope of his or her employment at the time of injury is a question of law to be determined on the basis of the referee’s findings of fact and is reviewable by this Court. Empire Kosher Poultry v. Workmen’s Compensation Appeal Board (Zafran), 154 Pa.Commonwealth Ct. 276, 623 A.2d 887 (1993), appeal denied, 536 Pa. 648, 639 A.2d 34 (1994). This Court has also held that injuries sustained by an employee traveling to or from his or her place of work do not occur in the course of employment and are not compensable under the Act. William F. Rittner Co. v. Workmen’s Compensation Appeal Board (Rittner), 76 Pa.Commonwealth Ct. 596, 464 A.2d 675 (1983). However, this “going and coming” rule has four exceptions: 1) claimant’s employment contract includes transportation to and from work; 2) claimant has no fixed place of work; 3) claimant is on a special assignment for the employer; or 4) special circumstances are such that claimant was furthering the business of the employer. Empire Kosher Poultry.

Since Claimant was on his way to work when the accident occurred, the “going and coming” rule applies; therefore, to be eligible for workers’ compensation benefits, Claimant must meet one of the exceptions outlined in Empire Kosher Poultry. Claimant indicated he “believed” that he had a written contract and that this contract provided for transportation. However, Claimant neither produced the contract nor unequivocal testimony that such provision did in fact exist, thus he did not meet his burden to prove that the first exception is applicable. Furthermore, the Board did not err when it concluded that the second and third exceptions are inapplicable where the record contains no evidence which would indicate that Claimant had no fixed place of work or was on a special mission for Employer.³

As to the fourth exception, a case quite analogous to the matter sub judice is Hastings v. Pennsylvania Nat’l Mut. Casualty Ins. Co., 407 Pa. Superior Ct. 282, 595 A.2d 1150 (1991), appeal denied, 530 Pa. 645, 607 A.2d 255 (1992), where a car salesman sustained injuries in an accident while driving home in a vehicle provided by his employer. In Hastings, the Superior Court held that use of an employer’s vehicle for employer advertising purposes and for the personal use of the employee is insufficient in and of itself to bring a claimant’s activities within the scope of employment and within the exception to the “going and coming rule.” The Superior Court relied on Hall v. Midland Ins. Co., 320 Pa. Superior Ct. 281, 467 A.2d 324 (1983), which involved injuries sustained by an insurance salesman in an accident while driving home from work in a vehicle provided by the employer. In Hall, the court determined that despite the fact that the vehicle was owned by the employer and was provided to the claimant for business and personal use, the evidence could not support the conclusion that the salesman’s injuries had occurred during the course of his employment.⁴

Claimant next argues that the Board erred as a matter of law in failing to find that his injury was sustained on Employer’s premises within the meaning of the Act where his accident occurred immediately in front of Employer’s place of business and while he was preparing to turn into Employer’s parking lot. Claimant contends that an employer’s premises within the meaning of the Act includes a reasonable means of access for the situs of the employer’s business, and may also cover a public road used or maintained by the employer for the operation of its business, citing Epler v. N. Am. Rockwell Corp., 482 Pa. 391, 393 A.2d 1163 (1978), and Hesselman v. Somerset Community Hosp., 203 Pa. Superior Ct. 313, 201 A.2d 302 (1964). Claimant also contends that the critical factor is not the employer’s title to or control of the area, but the fact that the area was used by employees in the performance of assigned tasks, Interstate United Corp. v. Workmen’s Compensation Appeal Board, 56 Pa.Commonwealth Ct. 385, 424 A.2d 1015 (1981); and that an employer’s premises may include property even where title to that property is vested in a third party. Schofield v. Workmen’s Compensation Appeal Board, 39 Pa.Commonwealth Ct. 282, 395 A.2d 328 (1978).

Courts have consistently required something more than the mere existence of a nearby or adjacent public road before extending an employer’s premises to include it. The real question is whether the site of the accident was an integral part of the employer’s premises. Epler. Each case which Claimant cited is distinguishable from the case sub judiee in that the road on which the accident occurred was either located between buddings or other property which the employer owned; the employer maintained or had title to or control over it; or the employer required its employees to use it in their assigned tasks.

In Hesselman, the claimant slipped and fell as he was reaching for the knob of a door leading from a public alley to the employer’s laundry building, where the alley was located between the employer’s buildings, was cared for and maintained by the employer, and the claimant was required to use it as a means of access to the laundry building. In Epler, the claimant was killed after leaving work when he was hit by a car as he crossed a public street to reach a parking lot, where the lot was provided by the employer and the parking spaces were designated by the employer. In Interstate United Corp., the claimant, a cafeteria worker, was injured on the steps of a footbridge which connected the plant from which her employer leased its cafeteria to a public street. The plant owned and controlled the footbridge. In Schofield, the claimant was injured when a train collided with his car while he was driving over a railroad right-of-way on the employer’s plant facilities, which was the principal means of access to the employer’s property.

A close scrutiny of the record and application of the law demonstrate that Claimant has failed to show a nexus between Employer’s premises and the public road on which his accident occurred; thus it cannot be deemed part of Employer’s premises under the Act. Claimant has therefore failed to prove that the injuries he sustained occurred within the course and scope of his employment. Accordingly, the order of the Board is affirmed.

ORDER

AND NOW, this 20th day of September, 1994, the order of the Workmen’s Compensation Appeal Board is affirmed.

Footnotes

1

. This case was re-assigned to the opinion writer on July 12, 1994.

2

. When the burdened party is the only party to present evidence and does not prevail before the agency, this Court’s scope of review is limited to determining whether the agency erred as a matter of law or capriciously disregarded competent evidence. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988). Claimant was the only party to present evidence.

3

. Claimant cites Susman v. Kaufmann’s Dep't Store, 182 Pa. Superior Ct. 467, 128 A.2d 173 (1956), to support his argument that he was acting within the course and scope of his employment; however, Susman is factually distinguishable in that the claimant was hired by the employer as a special messenger and deliverer during a strike at the employer's store and the transportation which the employer provided was an integral part of the employment agreement.

4

. This Court is not persuaded by Claimant's arguments that Hastings and Hall are distinguishable where the claimant in Hastings reimbursed his employer twenly-five dollars per week for the use of the vehicle, and where in Hall, there was no provision for transportation in the employment contract. The reimbursement in Hastings was not a determinative factor in the court's analysis of the case. Moreover, Hall was likewise analyzed under both the first and fourth exceptions to the "going and coming” rule; and the court’s analysis of the fourth exception is on point.

Nor is this Court persuaded by Claimant’s argument that like Hastings, the matter sub judice should be remanded for further proceedings, or alternatively for specific findings as to whether transportation to and from work was provided as part of Claimant's employment contract. The court in Hastings remanded the matter because it determined that summary judgment was inappropriate where there was a genuine issue of material fact as to whether the employer was contractually obligated to provide the car and where the record contained no evidence on that issue. In the present case, Claimant had ample opportunity to present evidence regarding his employment contract at the referee's hearing.