Andrea Cicero Rock

Key Points:

• If an employee is furthering the business interests of the employer, even an injury sustained off the employer’s property can be considered compensable.
• The burden of proving that an injury was sustained in the course and scope of employment is very fact specific. 
• Cases where the claimant was injured off the employer’s property should only be accepted if convinced the claimant was in the course and scope of his employment.

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Determining whether an injured worker was within the scope and course of his employment at the time of an injury is often a difficult decision to make, as these cases are based on the specific set of facts involved. On August 9, 2024, the Pennsylvania Supreme Court agreed to review a Commonwealth Court decision which found there was no exception to the coming and going rule as it applied to the claimant when he was involved in a motor vehicle accident while driving home from work. While we wait for the Supreme Court’s final decision, it is worth reviewing the legal conclusions made by the Commonwealth Court.

Injuries sustained during an employee’s commute are not compensable because the employee is neither on the employer’s premises nor engaged in the furtherance of the employer’s affairs. Peer v. Workmen’s Compensation Appeal Board (B & W Construction), 503 A.2d 1096, 1098 (Pa. Cmwlth. 1986). However, there are exceptions to this rule. An injury sustained during an employee’s commute to or from work can be compensable where any of the following apply: 

1. the employment contract included transportation to and from work; 
2. the employee had no fixed place of work; 
3. the employee was on a special assignment for the employer; or 
4. special circumstances are such that the employee was furthering the business of the employer. 

Bensing v. Workers’ Compensation Appeal Board (James D. Morrissey, Inc.), 830 A.2d 1075, 1078 (Pa. Cmwlth. 2003) (quoting Bradshaw v. Workmen’s Compensation Appeal Board (Bell Hearing Aid Center), 641 A.2d 664, 666 (Pa. Cmwlth. 1994)).

In Jorje Martinez v. Lewis Tree Service (WCAB), 310 A.3d 327 (Pa. Cmwlth. 2024), the Commonwealth Court affirmed the workers’ compensation judge’s decision denying the Claim Petition, finding the claimant’s injuries were sustained while commuting and, thus, were not compensable. 

The claimant worked as a crew leader in the employer’s tree-trimming business. While driving home in his personal vehicle at the end of his workday, he was involved in a motor vehicle accident and sustained injuries. He filed a Claim Petition, asserting he was a traveling employee with no fixed place of business and that his injuries were compensable, despite not occurring on the employer’s premises. 

The claimant explained, every morning he left his house, drove his personal vehicle to the yard where the employer’s trucks were parked, got into one of the work trucks, and then drove to various work sites. At the end of the day, he returned to the yard and picked up his personal vehicle for the drive home. He explained that the employer did not have a fixed and permanent yard since it changed several times per year, depending upon the circuit the company was working. The employer presented fact witness testimony to explain that it does not compensate employees for their commuting time or expenses, it does not own the yards where they are headquartered for any particular period, and on the day of the accident, the claimant was assigned the job of moving the employer’s trucks and equipment from one yard to a new yard. 

The workers’ compensation judge denied the Claim Petition, concluding the claimant was not in the course and scope of employment. In that decision, the judge credited the testimony of the claimant and the employer’s fact witness, noting they were in agreement on every critical point of the analysis. The judge found that the facts placed the claimant outside of the course and scope of employment when the accident occurred because he was commuting from work. 

The claimant appealed, and the Workers’ Compensation Appeal Board affirmed the judge’s decision. They found that the claimant’s evidence did not establish any of the exceptions to the coming and going rule. To the contrary, the claimant reported to work at a fixed location. 

The claimant appealed to the Commonwealth Court, arguing that he established he was a traveling employee and was entitled to a presumption that he was in the course and scope of employment while driving home from work. The Commonwealth Court focused on the fact that the claimant’s evidence did not establish that he was a traveling employee without a fixed place of employment. Most importantly, the claimant was not furthering the business of his employer while commuting home in his own vehicle from the yard where he began his workday. The court found the claimant reported to the yard, where the truck and equipment needed to trim trees were stored. He then traveled to the location of the tree trimming job. He drove his personal vehicle, not the employer’s vehicle, to and from his home, and his workday started at the employer’s yard, not at his home. Further, the claimant was not reimbursed for travel expenses and did not store equipment at his home. The claimant had a fixed place of work, albeit one of short duration. Thus, a job that takes place in more than one location during a workday does not make one a traveling employee. 

The claimant took a further appeal to the Pennsylvania Supreme Court, which is now awaiting a decision on the merits. 

The ruling by the Commonwealth Court provides guidance to carriers that a thorough investigation must be undertaken when a claim is reported. Furthermore, since these cases are driven by the specific facts, it is often times the best practice to deny the claim and force the claimant to meet his burden of proving that the injury occurred in the course and scope of employment. 

*Andrea, a member of our Workers’ Compensation Department, is a shareholder and works in our Philadelphia, Pennsylvania, office. 

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_{Defense Digest, Vol. 30, No. 4, December 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}