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Defense Digest

No Fixed Place of Work: An Exception for Your Workers’ Compensation Claim

Defense Digest, Vol. 30, No. 4, December 2024

December 1, 2024

by 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.

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. 

 

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.

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Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

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CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

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The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.