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What's Hot in Workers' Comp

Injuries sustained by a claimant while commuting were not compensable under the Act as the claimant was not a traveling employee with no fixed place of work.

Jorge Martinez v. Lewis Tree Service (Workers’ Compensation Appeal Board); No. 298 C.D. 2023; filed Feb. 8, 2024; Senior Judge Leavitt

March 1, 2024

by Francis X. Wickersham

The claimant worked as a crew leader for the employer’s tree-trimming business. On October 1, 2021, while driving home in his personal vehicle at the end of the workday, the claimant sustained injuries in a motor vehicle accident. He then filed a Claim Petition, alleging that his injuries were compensable because he was a traveling employee with no fixed place of business. The workers’ compensation judge bifurcated the proceedings to decide the issue of whether the claimant was in the course and scope of his employment at the time of the accident. 

The claimant testified that each morning he left his house in his personal vehicle and drove to the yard, got into one of the employer’s trucks, and drove to the work site. At the end of each day, he returned to the yard, where he picked up his vehicle to drive home. The location of the yard changed several times per year, depending on the location of the jobs. The employer did not have a fixed and permanent yard for its trucks and equipment. The claimant followed this routine on the date of the motor vehicle accident. On his way home in his vehicle, the claimant was rear-ended. 

The employer testified that its employees are not compensated for their commuting time or expenses. The employer also testified that approximately six different yards are used. The yards are not owned by the employer, they are leased spaces to park the trucks. Because the claimant was a driver, he was assigned jobs that needed a bucket truck. The claimant was part of a group that trimmed trees around power lines.

The judge denied the Claim Petition, concluding the claimant was not in the course and scope of his employment at the time of injury. The claimant appealed to the Workers’ Compensation Appeal Board, which affirmed. Both the judge and the Appeal Board found that the injuries sustained by the claimant from the motor vehicle accident that occurred while he was commuting to home from work placed him outside the course and scope of employment and that there were no exceptions that applied. 

The claimant appealed to the Commonwealth Court, arguing that one of the exceptions to the Coming and Going Rule applied to him because he was a traveling employee with no fixed place of work and, therefore, was entitled to a presumption that he was in the course and scope of employment while driving home from work. According to the claimant, his position as a crew leader required him to pick up a company vehicle at a “yard” and drive the vehicle to various job sites where he trimmed trees. The employer countered that its “yard” gave the claimant a fixed place to work. 

The court affirmed the decisions below and dismissed the claimant’s appeal. In doing so, they noted that the claimant drove his personal vehicle to and from his home, his workday started at his employer’s yard and not his home, the claimant was not reimbursed for travel expenses and did not store equipment at home; therefore, claimant had a fixed place of work, albeit one of short duration. According to the court, a change of work location during the day, or from day to day, does not make a claimant a traveling employee. 

 

What’s Hot in Workers’ Comp, Vol. 28, No. 3, March 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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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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In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

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