Defense Digest

Expansion Of The Going And Coming Rule Exception?

This article will explore the impact of the recent Pennsylvania Supreme Court decision of Wachs v. W.C.A.B. (American Office Systems & Donegal Mutual Insurance Company), 884 A.2d 858 (Pa. 2005), on the going and coming rule. The going and coming rule essentially holds that an injury or death sustained by an employee while traveling to or from a place of employment does not occur in the course of employment and, therefore, would not be compensable under the Pennsylvania Workers' Compensation Act. Biddle v. W.C.A.B. (Thomas Mekis & Sons), 539 Pa. 343, 652 A.2d 807 (Pa. 1995). As with any general rule, there are exceptions. An injury or death will be considered to be within the scope and course of employment and compensable if one of the following exceptions is applicable: (1) the claimant's employment contract includes transportation to and from work; (2) the claimant has no fixed place of work; (3) the claimant is on a special mission for the employer; or (4) special circumstances are such that the claimant was furthering the business of the employer. Biddle, Supra.; Rox Coal Co. v. W.C.A.B. (Snizaski), 768 A.2d 384 (Pa. Cmwlth. 2001), affirmed, 570 Pa. 60, 807 A.2d 906 (Pa. 2002).

In 1993, the Act was amended. Section 301(c)(1) provides, in part, that an injury arising in the course of employment shall not include injuries sustained while the employee is operating a motor vehicle provided by the employer if the employee is not otherwise in the course of employment at the time of the injury, but shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer.

In the Wachs case, the Supreme Court of Pennsylvania considered the issue of whether the contract exception to the going and coming rule was still a viable exception. Ultimately, the Pennsylvania Supreme Court held that the employment contract exception to the coming and going rule was still viable. In order to see how the Pennsylvania Supreme Court reached this result, the facts of the Wachs' decision become important.

Judith Wachs was the widow of James Wachs, who was killed in an automobile accident while driving a company vehicle on his way to work for American Office Systems. The widow filed a fatal claim petition seeking benefits. The defendant and their insurer, Donegal Insurance, denied averring that the claimant was not in the course and scope of his employment at the time of the accident and was merely enroute to work. The decedent was an office equipment technician who had worked for American Office Systems but had left for three years to work for a competitor. The decedent was recruited back to the employer in 1991. As part of the return to the employer, the decedent demanded and was granted a company car. Initially, the decedent's work schedule required him to be out of the office ninety percent of the time, but he was subsequently promoted to a supervisory position, which he performed from the employer's home office the majority of the time.

On the day of his death, the decedent was traveling to the employer's home office to repair two fax machines for a client. He was paid an hourly wage starting at 8:00 a.m., but it did not include travel time. He was not carrying a pager, company cell phone, nor was he on call constantly. He was, however, provided with an employer credit card to pay for the gas and repairs to the company vehicle.

At the administrative law judge level, the widow's claim was denied based on the fact that she failed to prove that the decedent was acting within the scope and course of his employment at the time of death. The Appeal Board, however, remanded. On remand, the judge once again found the decedent not in the scope and course of his employment, nor was he furthering the interests of the employer at the time of death. The Appeal Board affirmed this decision, and the matter proceeded to the Commonwealth Court, which reversed, concluding that the widow had adequately proved that the decedent obtained the company car as part of his employment contract. The Commonwealth Court felt the widow had proven that the decedent fell within the employment contract exception to the going and coming rule.

As noted above, the Pennsylvania Supreme Court ultimately determined the claim was compensable and indicated there was unequivocal testimony that the employee's re-hire was conditioned upon being provided with a company car. Further, the Court found it significant that he was issued the company vehicle from the first day he was re-employed with the company and drove it continuously until his death, more than seven years later. The Supreme Court indicated that based on this evidence and the continuity of conduct throughout the decedent's employment, the widow had established that the use of the company vehicle was pursuant to his employment contract.

The Supreme Court accepted the reasoning of the Commonwealth Court in the Rox Coal Co. case that the employment contract exception to the going and coming rule was still viable because the widow established by substantial evidence that the decedent negotiated an employment contract that included transportation to and from work, and since he was killed on the way to work, it was appropriate to grant the fatal claim petition.

It is also significant to note that the decedent, at the time of his death, was not operating under an actual written employment contract with the employer. When he was rehired, the employee signed a one-year employment contract, which was not updated throughout his subsequent seven-year employment history with the employer. While the employee manual had a provision for a company car, the decedent's contract did not designate that his employment was contingent on his receiving the company car.

The Supreme Court indicated that, although it was not memorialized in the written employment contract, the Court must look at the "totality of the circumstances" to determine whether an employee's contract did, in fact, provide for transportation to and from work.

As part of its argument to the Supreme Court, the employer argued the General Assembly in 1993 amended Section 301(c)(1) of the Act to abrogate the common law employment contract exception to the going and coming rule by inserting the language that provided, "Nor shall it include injuries sustained while the employe is operating a motor vehicle provided by the employer if the employe is not otherwise in the course of employment at the time of injury." It was the employer's argument that the General Assembly sought to eliminate the exception by requiring employees to actually be in the process of furthering the employer's interest at the time of the injury. Also, as pointed out by the dissenting opinion, the legislative history of Act 44 clarifies that it was the primary purpose of the amendments to reform the compensation system so as to reduce the burden upon employers, as the high cost of the system was contributing to an unfriendly business environment in Pennsylvania compared to neighboring states. Justice Saylor's dissenting opinion concluded that the 1993 amendments to Section 301(c)(1) of the Act abrogated the common law employment contract exception to the going and coming rule, and he felt that benefits should be denied.

Nevertheless, the majority opinion of our Supreme Court allowed benefits in this case and, therefore, broadened the exception in order to allow benefits. Consequently, under the current case, the mere fact that an employee is provided with a company vehicle may be sufficient to allow benefits for a worker injured or killed driving to or from work.

This author believes the holding in Wachs serves to expand rather than contract employer liability, which is directly contrary to the legislative intent of the General Assembly when adopting the amendments to the Act in 1993. The author further believes the case may have had a different outcome had the accident resulted in minor injuries rather than death to the employee. This case reflects further erosion of the employer's protections enacted by the General Assembly in the 1993 amendments to the Act, and it may cause employers to reconsider whether to supply a company vehicle to employees in the future.

*Ross is a shareholder in our Scranton, PA office. He can be contacted at (570) 496-4617 or rcarrozza@mdwcg.com.