Francis X. Wickersham

In this case, the claimant had worked for four years as a seasonal laborer for the employer, installing rebar for in-ground swimming pools. The employer was the sole owner of the business. In March of 2018, while returning home from the employer’s job site in Rio Grande, New Jersey, the claimant sustained injuries in a motor vehicle accident. Later, the claimant filed a claim petition, and the employer denied the allegations raised in the petition. 

At the Workers’ Compensation Judge level, the parties entered into a Stipulation wherein they agreed to the nature of the injuries sustained by the claimant and agreed that, if it was found the claimant was in the course and scope of his employment at the time of the accident, the injuries would be compensable and the claimant would be entitled to payment of benefits.

According to the claimant’s testimony, he was picked up from his house in Pennsylvania by the owner’s son and then driven to the job site in New Jersey in one of the employer’s trucks. After work, they drove back to Pennsylvania in the employer’s truck. The claimant said they were stopped by a police officer on the Atlantic City Expressway and cited for having an obstructed rearview mirror. A very short time thereafter, the motor vehicle accident occurred, and the claimant woke up in the hospital. The claimant said that he did not have a written employment contract with the employer. He further said that he did not personally drive an employer-owned vehicle and was not promised a ride to work. The claimant received a percentage of the amount for each job as his pay. 

The owner’s son testified that he drove to Pennsylvania to pick up the claimant at the owner’s direction because they needed additional help for the New Jersey job. He typically picked the claimant up at his home in one of the employer’s trucks and then drove to the employer’s work site. He did not drive anyone else to the employer’s job sites and did not operate the employer’s vehicles outside of work. The owner testified that the claimant’s pay for the work he performed at the New Jersey job site included additional pay for travel time and advised that employees were regularly paid for travel time, depending on the “zone” of the job site. Payment would not be made for travel to a job site in Zone 1. However, the New Jersey job was in Zone 4 or Zone 5. 

The Workers’ Compensation Judge dismissed the claim petition, finding the claimant had no contract, written or oral, promising him transportation to and from work. He further found the claimant had a fixed place of employment and did not find that the claimant was on a special assignment. He concluded the claimant was not in the course of employment at the time of the accident. The claimant appealed to the Workers’ Compensation Appeal Board, which affirmed. 

On appeal to the Commonwealth Court, the claimant argued that he was in the course of employment at the time of the accident because he had “an oral employment contract” that included transportation to and from job sites; he had no fixed place of employment; and he was on a special mission. The Commonwealth Court concurred, specifically with respect to the contract including transportation to and from work, and reversed the Board. Noting that an oral agreement could be considered when making the determination, the court said that to satisfy this exception to the “going and coming rule,” the claimant must prove that any travel allowance paid by the employer is related to the actual expense and time involved in the claimant’s commute and must prove that the employer provided or controlled the means of his commute. The court said that, although the claimant did not have a written employment contract, this was not a dispositive fact. The claimant was in an employer-owned vehicle at the time of the motor vehicle accident and the owner testified that employees received extra compensation for travel to any job located outside Zone 1. The zones were based on the distance in miles from the owner’s home. The testimony of the owner and his son established that the employer provided the means for the claimant’s commute when the owner directed his son to pick up the claimant at his home and drive him to the New Jersey job site in the employer’s truck.
 

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