Williams v. Workers' Compensation Appeal Board

721 A.2d 1140, 1998 Pa. Commw. LEXIS 902, 1998 WL 870002

• Court: Commonwealth Court of Pennsylvania
• Decided: December 11, 1998
• Docket: 1578 C.D. 1997
• Status: Published

Opinions

LEADBETTER, Judge.

Claimant, Gerard J. Williams, appeals from the order of the Workers’ Compensation Appeal Board (Board) under the Workers’ Compensation Act (the Act).¹ The issue presented on appeal is whether claimant’s injuries, which occurred while he was driving to work, fall within an exception to the “coming and going” rule.² We ordered this case heard en banc so that we could address inconsistencies between Kear v. Workmen’s Compensation Appeal Bd. (Fairman Drilling Co.), 102 Pa.Cmwlth. 193, 517 A.2d 586 (Pa.Cmwlth.1986) and other published opinions of this court, particularly Bechtel Power Corp. v. Workmen’s Compensation Appeal Bd. (Postlethwait), 167 Pa.Cmwlth. 544, 648 A.2d 1266 (Pa.Cmwlth.1994), alloc. denied, 540 Pa. 585, 655 A.2d 516 (1995), and Peer v. Workmen’s Compensation Appeal Bd. (B & W Constr.), 94 Pa.Cmwlth. 540, 503 A.2d 1096 (Pa.Cmwlth.1986). After review, we specifically reaffirm Peer and Bechtel and the consistent prior line of cases in this court, and overrule Rear.

The record reflects that claimant was employed by Mateo Electric Company (Mateo) as an apprentice electrician on a project in Sayre, Bradford County, Pennsylvania. The job site in Sayre was approximately ninety-five miles from claimant’s home, and he was required to report to work at the job site everyday at 7:00 a.m. Claimant made the commute on a daily basis, either driving his brother-in-law’s truck or car pooling with other employees.

Claimant had obtained the job with Mateo as a result of a referral from the business office of Local Union 81 of the International Brotherhood of Electrical Workers, of which he was a member. Pursuant to union rules, claimant was required to accept the job to remain eligible for future union referrals. The jurisdiction of the union. encompasses eight counties in Northeastern Pennsylvania, including Bradford. The applicable collective bargaining agreement, referred jto as the “Inside Agreement,”³ provided that claimant would receive a specific hour|y rate if he worked within the territory designated as zone A, and an additional 49 cents per hour if he worked outside zone A in zone B.⁴ Sayre was located in zone B and, therefore, claimant received the additional 49 cents per hour, or an additional $3.92 per day.⁵ Claimant was paid for neither the time nor the expenses he incurred commuting! to and from work. With respect to travel ¡expenses and transportation, the agreement provided:

Section 9 When the employer has no permanent shop located in the jurisdiction of the Union, then under ¡such circumstances Scranton shall be considered the city in which the shop is located.⁶

Section 16 The employer shall pay for traveling time and furnish transportation from shop to job, job to job, and job to shop, within the jurisdiction of the Union. On work outside of the jurisdiction of the Union, the employer shall furnish transportation, board, and all necessary expenses.

Section 17 No travelling time shall be paid before or after working hours to workmen for travelling to or from any job in the jurisdiction of the Union where workmen are ordered to report on the job.

Claimant’s Exhibit No. 3, N.T. of March 23, 1993. The agreement also allowed Mateo to transfer employees from job site to job site within the jurisdiction of the union.

Claimant worked for Mateo approximately four weeks until he had an automobile accident while commuting to work on March 12, 1992. At that time, he lost control of the truck he was driving, crashed and sustained injuries, which left him partially paralyzed. Thereafter, claimant filed a claim petition seeking benefits under the Act. Mateo denied the petition and the matter was eventually heard by a Workers’ Compensation Judge (WCJ), who granted benefits. The Board reversed, and claimant appealed to this court.

Whether an employee is acting within the course of his employment at the time of an injury is a legal question, determined on the basis of the WCJ’s factual findings, and subject to this court’s plenary review. Olszewski v. Workmen’s Compensation Appeal Bd. (Royal Chevrolet), 167 Pa.Cmwlth. 521, 648 A.2d 1255, 1257 (Pa.Cmwlth.1994). Generally, under the “coming and going” rule, injuries sustained by an employee while commuting to and from work are not compensable under the Act. Id. This rule is premised on the recognition that an employee traveling to or from work is usually neither on the employer’s premises, nor engaged in the furtherance of the employer’s business. Peer, 503 A.2d at 1098.⁷ There are four exceptions to this rule, however, and an injury sustained while traveling to or from work will be deemed compensable if: (1) the employment contract includes transportation to and/or from work; (2) the claimant has no fixed place of work; (3) the claimant is on special assignment for the employer; or (4) special circumstances are such that the claimant was furthering the business of the employer. Id. See also Bechtel, 648 A.2d at 1271; Olszewski, 648 A.2d at 1257. Of these, we need deal only with the first and fourth.⁸

Although he inexplicably based his decision only on the fourth exception, the WCJ found that the collective bargaining agreement required the employer to provide transportation. He based this conclusion on the provision in Section 16 that transportation was to be provided from shop to job. He then interpreted the contract to provide that each day the employee was responsible for transporting himself to the shop (here, because there was no shop, a theoretical location in Scranton) and the employer was then responsible for transporting him from Scranton to the location of the job. Since claimant was directed to report directly to the job, the WCJ reasoned that by transporting himself to the job, claimant was fulfilling the employer’s responsibility and, thus when doing so was furthering the employer’s interests. Adopting the WCJ’s reading of Section 16, claimant argues on appeal that both the first and fourth exceptions are satisfied. However, the WCJ’s interpretation of the contract was plainly erroneous, since it disregarded the unambiguous provisions of Section 17. As the Board noted,

Section 17 reads as follows:

No traveling time shall be paid before or after working hours to workmen for traveling to or from any job in the jurisdiction of the Union where workmen are ordered to report to the job.

A review of Sections 16 and 17 together indicates that there are clearly two separate provisions in this Agreement concerning transportation and travel expenses. Section 16 deals with situations in which an employee is centered at the shop or is moved from job to job. Section 17, on the other hand, deals with situations in which an employee is directed to report directly to the job site.

In the instant case, Claimant was to report directly to the job site. Thus the provisions of Section 16 do not apply to the instant Claimant and the WCJ was incorrect in applying them to justify the payment of benefits....

Williams v. Matco Electric Co., Inc., (No. A94-1890, filed June 5, 1997), slip op. at 7.

In reversing the WCJ’s award of benefits, the Board relied upon Peer and Bechtel. In Peer, the claimant, a boilermaker who commuted approximately thirty-five miles to and from work each day, sought benefits under the Act after he sustained injuries while riding his motorcycle to work. Under the terms of a collective bargaining agreement (CBA) between the claimant’s employer and his union, the claimant received a fixed amount as car fare, which was calculated according to a formula which utilized the distance between the claimant’s place of employment and a point in the City of Pittsburgh, regardless of the distance actually traveled. In affirming the denial of benefits, this court held that although the provision of the travel allowance provided the claimant with extra compensation, the CBA did not obligate the employer to provide claimant with transportation, nor did it allow the employer to exercise any control over the claimant’s means of transportation. 503 A.2d at 1098.

Similarly, in Bechtel, the claimant, a plumber and pipefitter, was injured in an automobile accident while returning home from work. The claimant lived in Lancaster, Pennsylvania and commuted by car pool on a daily basis to and from his job in Limerick, Pennsylvania. Pursuant to the terms of the applicable CBA, all employees, including the claimant, received a $5.00 per diem travel allowance without consideration as to whether the employees used their own transportation to commute or the actual miles traveled. Relying on Peer, this court held that the contractual payment of a per diem travel allowance to all employees could not, as a matter of law, be construed to be the provision of transportation such that the employee’s commute was within the course of his employment. Bechtel, 648 A.2d at 1272.

On the other hand, claimant argues that the first and fourth exceptions apply under the analysis of this court in Rear. In that case, the claimant’s commute was approximately 100 miles, and claimant routinely received an extra $20.00 a day to cover his travel expenses, whether he obtained lodging near the drill site or returned home at the end of the work day. We held:

In the present case, we conclude that claimant’s traveling to work was in furtherance of his employer’s affairs. The nature of the employer’s undertaking involved establishment of workplaces at various and sundry sites, creating an occupational environment in which work could be and was concentrated far from an employee’s home.

It is undisputed that, in recognition of such work conditions, a per diem was paid for those who found lodging near the drill site. These payments were made in recognition of the unique character of the employer’s business, to make advantageous and attractive continued employment. Such monies were, however, as we are satisfied, paid to the claimant when he chose to undertake the long commute. In the presence of such facts, and in light of the nature of the employer’s business, we believe that claimant’s contract can be said to have included transportation to and from work, and that such transportation proximately furthered the employer’s business.

517 A.2d at 590 (footnote and citations omitted).

Initially it should be noted that the court in Rear appears to have found its salient facts to establish entitlement under both the first and fourth exceptions, without attempting to distinguish between them nor to focus upon their different elements. For the sake of clarity, we will deal with the exceptions seriatim.

It is beyond dispute that Rear, Peer, and Bechtel and this case all share the same material fact pattern. That is, the claimant received some additional compensation based upon the location of his job site or as a travel allowance, but was not directly compensated for his particular expense of commuting. The employers neither provided nor controlled the means of transportation. None of the claimants were requested to take any work home, nor did any have work-related responsibilities after leaving the job site. In all four cases it may validly be inferred (as it was by the Board in Bechtel, the court in Rear and the WCJ below) that the employer paid the additional compensation as an incentive to attract workers who might otherwise find the job undesirable because of the commute. Nonetheless, in Peer and Bechtel, we clearly held that these facts did not give rise to the conclusion that the employer provided transportation within the meaning of the first exception, while the panel in Rear held to the contrary. We believe that Peer and Bechtel state the correct principle of law, ie., that where travel allowances are not directly related to the expense or distance of the employee’s commute, and where the employer does not provide or control the means of transportation used, the contract cannot be deemed to include transportation to and from work.⁹

This holding does not entirely dispose of the issues in this case, however, because Rear also grounded its holding on the fourth exception, special circumstances such that the claimant was furthering the business of his employer. Rear reasoned that the additional compensation was paid “to make advantageous and attractive continued employment” and thus that the employee’s undertaking of the commute “proximately furthered the employer’s business.” This holding also places Rear in conflict with Peer and Bechtel. In Peer, we noted without further discussion of the fourth exception that, “the [travel] allowance did not further the business of Employer.” 503 A.2d at 1098. In Bechtel, the Board had adopted the Rear analysis, virtually in haec verba [“These payments were made ... to make such continued employment of skilled labor advantageous.... Given this set of facts, we are satisfied that ... such transportation proximately furthered Defendant’s business” (emphasis omitted) ]. 648 A.2d at 1270. This court reversed, following Peer.

If one disregards Rear, it is not surprising that Peer and Bechtel gave only brief attention to the fourth exception; it has long been held that the special circumstances entitling an employee to benefits for injuries sustained during a commute must involve an act “in which the employe was engaged ... by order of the employer, express or implied, and not simply for the convenience of the employe.” Rybitski v. Lebowitz, 175 Pa.Super. 265, 104 A.2d 161, 162 (Pa.Super.1954). Accord Setley v. Workmen’s Compensation Appeal Bd. (Kawecki Berylco Indus.), 69 Pa.Cmwlth. 241, 451 A.2d 10 (Pa.Cmwlth.1982). Thus, in Lopresti v. Workmen’s Compensation Appeal Bd. (Gulf Constr. Co.), 35 Pa.Cmwlth. 7, 384 A.2d 1017 (Pa.Cmwlth.1978), an injury sustained on the claimant’s return home was found to be within the course of employment where the employer requested the employee to call a builder from home and then report back to employer. This court held, “[t]he decedent was purposefully pursuing, during his usual and normal working hours, the performance of his obligations for the benefit and convenience of his employer.” Id. at 1019-1020. Similarly, in William F. Rittner Co. v. Workmen’s Compensation Appeal Bd. (Rittner), 76 Pa.Cmwlth. 596, 464 A.2d 675 (Pa.Cmwlth.1983):

As part of the contract of employment, the Employer supplied the Decedent with ... a utility van which the Decedent drove back and forth to work each day. The Decedent was on call 24 hours a day, and utilized the van not only during the regular work day, but also after working hours to make special deliveries, and to respond to emergencies at the Employer’s premises and out on the road.

Id. at 677. Under these circumstances:

[I]t was necessary for the Decedent to drive the van back and forth to work each day in order to comply with the Employer’s requirement that he be prepared to respond to emergencies at any time of the day or night. In light of these facts, the conclusion is inescapable that the Decedent, at the time of the accident, was engaged in furtherance of his employer’s business.

Id. at 679. In contrast, in Workmen’s Compensation Appeal Bd. v. Hickory Farms, 28 Pa.Cmwlth. 30, 367 A.2d 730 (Pa.Cmwlth.1976), the employee, voluntarily and on her own initiative, took work home at night to decrease her workload for the following day. We held that her injuries sustained on the way home were not within the course of employment because working at home was for her own convenience.

Finally, in Unity Auto Parts, Inc. v. Workmen’s Compensation Appeal Bd. (Bigley), 148 Pa.Cmwlth. 4, 610 A.2d 1071 (Pa.Cmwlth.1991), alloc. denied, 528 Pa. 618, 596 A.2d 801 (1991), we specifically rejected an argument quite similar to the analysis later adopted in Kear. There, although not part of his employment contract, claimant was temporarily allowed to ride in the company van to and from work on a day-to-day basis pending repair of his parents’ car. While doing so, he was in an accident and was seriously injured. The employer testified that he “really needed” an employee in the store because two employees were leaving to return to school, and he understood that “if we did not provide [the claimant] transportation, he did not have a job.” Id. at 1075. Thus, claimant argued that “this case falls within the special circumstances exception because he ‘was furthering the business of his employer by his attendance at work,’ which he would not have been able to do without employer-provided transportation.” Id. We rejected this argument and reversed the Board’s holding that the injuries occurred in the course of employment.

Review of the above cases makes clear that Peer and Bechtel were decided in accordance with clear precedent and it was Kear which varied from it. Of course, in a general sense it is always in the employer’s interest that employees come to work, particularly if some circumstances of the job, such as its duties or location, make it unattractive. This interest, far from being a special circumstance, is a universal one. Taken to its logical extreme, the Kear analysis would eviscerate the “coming and going” rule altogether. Therefore, it is overruled.

In conclusion, based upon the evidence of record, we hold that claimant has failed to establish that his travel to and/or from work falls within either the first or fourth exception to the “coming and going” rule. The collective bargaining agreement did not obligate Mateo to provide claimant with transportation or the means of commuting to work and claimant’s travel to work was not in response to any special request or direction by Mateo.¹⁰

Accordingly, the order of the Board is affirmed.

ORDER

AND NOW, this 11th day of December, 1998, the order of the Workers’ Compensation Appeal Board in the above captioned matter is hereby affirmed.

1 . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2626.

2 . The “coming and going” rule refers to the general principle that injuries received by an employee while traveling to and from work are not compensable under the Act because the employee is not considered at the time of the injury as being in the course of employment. Biddle v. Workmen's Compensation Appeal Bd. (Thomas Mekis & Sons, Inc.), 539 Pa. 343, 346, 652 A.2d 807, 808-09 (1995); Bechtel Power Corp. v. Workmen's Compensation Appeal Bd. (Postlethwait), 167 Pa.Cmwlth. 544, 648 A.2d 1266, 1271 (Pa.Cmwlth.1994), alloc. denied, 540 Pa. 585, 655 A.2d 516 (1995).

3 . Although Mateo is not a party to the collective bargaining agreement, it did agree to its application at all Mateo work sites within the union’s' jurisdiction.

4 . Zone B encompassed the area beyond a 60-mile radius of the courthouse in Scranton, Pennsylvania. According to claimant’s appellate brief, this wage differential was paid to all electricians who worked in Zone B regardless of where they lived or how far they traveled. Brief for Appellant at 13.

5 . The agreement also provided a procedure for the referral of apprentice electricians through the union. Pursuant to that procedure, preference was given to apprentices who resided in the labor market where the work site was located. In this case, since no apprentice electricians lived in the Bradford County labor market, apprentices, such as claimant, were referred from and traveled from outside of that area.

6 . Pursuant to this subsection, Mateo’s shop was deemed to be located in Scranton.

7 . In general, the employee’s obligation to the employer begins when he arrives at work and ends when he completes his duties and leaves the employer’s premises. The employee’s commute to and from work is not deemed to be a part of the employee’s job responsibilities; rather it is viewed as merely serving the employee’s own interest or convenience.

8 . Claimant does not claim that the third exception applies, and his assertion regarding the second does not appear to have been raised below. At all events, it is devoid of merit, since it is undisputed that throughout the time claimant worked for Mateo he worked only at the Sayre job site. In making this argument, claimant relies on Peterson v. Workmen’s Compensation Appeal Bd. (PRN Nursing Agency), 528 Pa. 279, 597 A.2d 1116 (1991), where the Supreme Court held that an employee of a temporary agency never has a fixed place of work such that when traveling to an assigned workplace, the employee is furthering the agency’s business. Id. at 287-88, 597 A.2d at 1120-21. Not only is Peterson distinguishable from the instant case, but we have interpreted the holding of that case to apply specifically to temporary employees, which claimant is not. See Foster v. Workmen's Compensation Appeal Bd. (Ritter Bros., Inc.), 162 Pa.Cmwlth. 565, 639 A.2d 935, 938 (Pa.Cmwlth.), alloc. denied, 539 Pa. 683, 652 A.2d 1327 (1994).

9 . The first exception applies in circumstances where by contract, either express or implied, the employer is obligated to provide the employee with a means of transportation to and/or from work. See generally Morucci v. Susquehanna Collieries Co., 297 Pa. 508, 147 A. 533 (1929); Campagna v. Ziskind, 287 Pa. 403, 135 A. 124 (1926); Dunn v. Trego, 279 Pa. 518, 124 A. 174 (1924); Knorr v. Central Railroad of New Jersey, 268 Pa. 172, 110 A. 797 (1920). See also William F. Rittner Co. v. Workmen’s Compensation Appeal Bd. (Rittner), 76 Pa.Cmwlth. 596, 464 A.2d 675 (Pa.Cmwlth.1983); Nilsson v. Nepi Bros., 138 Pa.Super. 107, 9 A.2d 912 (Pa.Super.1939), aff'd, 338 Pa. 561, 14 A.2d 75 (1940). In such cases, the transportation is part of the consideration for the employee’s services and it is usually deemed to he offered because it inures to the benefit of the employer, e.g., it serves as an inducement for the employee to accept the position with the employer, Campagna; Susman v. Kaufmann’s Dep't Store, 182 Pa.Super. 467, 128 A.2d 173 (Pa.Super.1956), or it insures that the employees arrive at work promptly when public transportation is not available, Hockenberry v. State Workmen’s Ins. Fund, 133 Pa.Super. 249, 2 A.2d 536 (Pa.Super.1938); Nilsson. It is important to note, however, that when transportation is provided to the employee as a mandatory term of the employment contract, the employee’s entitlement to benefits for injuries which occur during the work commute does not require a specific finding that the provision of the transportation serves to benefit the employer’s interest. See William F. Rittner Co.; Hastings v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 407 Pa.Super. 282, 595 A.2d 1150 (Pa.Super.1991), alloc. denied, 530 Pa. 645, 607 A.2d 255 (1992). Such a finding would relate to the fourth, not the first exception.

10 . Our conclusion is consistent with our decision in Davis v. Com., Workmen’s Compensation Appeal Bd. (Foodarama Supermarkets, Inc.), 41 Pa.Cmwlth. 262, 398 A.2d 1105 (Pa.Cmwlth.1979). There, the claimant, a pharmacist, was involved in a fatal accident while returning home from working in his employer’s Bethlehem store. Although the claimant usually worked in Reading, he was expected to periodically work in employer’s stores in Allentown and Bethlehem. Under the terms of his employment contract, the claimant received an increased hourly rate when he worked in either Allentown or Bethlehem. Under those circumstances, we held that the claimant did not fall within any of the exceptions to the "coming and going" rule and, therefore, was not in the course of his employment at the time of his accident. Id. at 1106.