Tri Star Auto Group v. WCAB (Bortz) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tri Star Auto Group, :
Petitioner :
: No. 549 C.D. 2017
v. :
: Submitted: November 3, 2017
Workers’ Compensation Appeal :
Board (Bortz), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 17, 2018
Tri Star Auto Group (Employer) appeals from the April 7, 2017 decision
of the Workers’ Compensation Appeal Board (Board), which affirmed the order of a
workers’ compensation judge (WCJ), granting a claim petition filed by James Bortz
(Claimant). Upon review, we reverse.
Facts and Procedural History
Employer is a collection of car dealerships with six locations primarily
throughout western Pennsylvania. In 2007, Employer hired Claimant as a commercial
account manager with his primary location and office to be in McKeesport, Allegheny
County, although the position required occasional travel. During a meeting in
September 2013, Employer told Claimant he was permitted to work at any of
Employer’s other locations as long as he advised his supervisor where he was working.
Because Claimant’s work sometimes required him to travel, he was provided with a
company vehicle, a cell phone, a laptop, and a gas card for the vehicle. He was also
provided a mobile printer, which he kept at home. (WCJ’s Findings of Fact (F.F.) Nos.
15, 17, 21, 22; Conclusions of Law (C.L.) No. 3; Reproduced Record (R.R.) at 266a.)
Claimant was involved in a single-vehicle accident in his company vehicle
on October 30, 2013, and sustained injuries in the nature of a traumatic brain injury, a
C7/T1 fracture resulting in paralysis, and a pelvic fracture. The accident occurred as
Claimant was driving to his office in McKeesport from his home in Johnstown.
Claimant filed a claim petition on November 20, 2013, and Employer filed an answer
denying all material allegations. The parties agreed that the matter should be bifurcated
for a preliminary determination as to whether Claimant was in the course and scope of
employment at the time of the accident, and, if so, whether his claim should be barred
because of a violation of a positive work order/work rule or a violation of law. The
matter was assigned to a WCJ, who held multiple hearings. (F.F. Nos. 1, 3, 24; R.R.
at 4a.)
Claimant’s wife, Heather Bortz, testified regarding her husband’s
employment with Employer. She stated that Claimant was employed in fleet sales and
that his schedule was such that he could work seven days a week because his work
could be performed at home, at Employer’s McKeesport office, or at another one of
Employer’s locations. She also testified that Claimant was provided a company
vehicle, a cell phone, and a laptop. She stated that a typical day for Claimant began
with checking his cell phone and laptop for messages and responding to phone calls,
after which he would shower and work from home or set out for wherever his job
required. On the day of the accident, Ms. Bortz testified that Claimant took their
2
daughter for an eye doctor appointment and then to school. She stated that Claimant
then returned home to drop off the receipt for the eye doctor visit and that Claimant
thereafter proceeded to work at Employer’s McKeesport location. (F.F. No. 5.)
Claimant also presented testimony at a deposition. He testified that his
job as a commercial account manager required him to seek new clients and to maintain
the existing client base, which entailed traveling to deliver vehicles and to meet clients.
He stated that he had a written employment contract, which set forth the terms of his
compensation and included the use of a demonstrator (“demo”) vehicle and fuel card
to purchase gas for his commute and to use for business purposes. He stated that, while
his prime location was at Employer’s McKeesport location, he would have to travel to
the Employer’s other locations if the contract involved a non-Ford product since the
McKeesport location was strictly a Ford dealership.1 Additionally, he stated that he
was not required to appear at his McKeesport office every day if his duties required
him to be elsewhere and that he would sometimes work from home. Claimant testified
that he did not have regular working hours and did not have to punch a time clock when
he went into the McKeesport office. However, Claimant stated that, when he was not
working at the McKeesport location, he would inform Employer regarding where he
would be that day. Claimant stated that he sometimes works at the Blairsville,
Somerset, or Uniontown locations and that he worked at the Tyrone location once or
twice. (F.F. No. 6; R.R. at 265a, 273a-75a.)
Claimant further testified that he had an office at the McKeesport location
with his name on the door for the duration of his employment in which he kept his
business and personal effects but, when he worked at the other locations, he did not
1
For example, Claimant indicated that if a client wanted another make of vehicle, such as a
Chrysler, he needed to go to one of Employer’s other locations that sold Chryslers to complete that
sale. (F.F. No. 6.)
3
have an assigned office. Claimant estimated that he would spend approximately 50%
of his time at the McKeesport location. With regard to his sales, Claimant testified that
the majority of his fleet sales were Ford vehicles, which were processed at the
McKeesport location. Claimant stated that his laptop could access all of his work
programs except the program to process sales. (F.F. No. 6; Board’s op. at 4.)
Claimant testified about a meeting he had with Jack Bartko, Employer’s
director of operations, and Keven Sergent, Employer’s owner, in September 2013 to
discuss his pay structure and schedule. Claimant testified that when he asked Mr.
Sergent if it mattered to him where Claimant worked, his response was, “No,
[Claimant], keep doing what your [sic] doing.” (F.F. No. 6.) Claimant testified that he
requested Mr. Bartko to clarify that arrangement with the other managers. Claimant
indicated that he requested this so that he would not have to check in on a daily basis
if he were working at Employer’s Blairsville or Uniontown location because his direct
manager would “pester” him if he were not working in McKeesport. (F.F. No. 6.)
With regard to the day of the accident, Claimant testified that he took his
daughter to an eye doctor appointment and then to school, after which he returned to
his house to pick up his laptop, check his email, and set out to work in McKeesport.
Claimant stated that he was going to McKeesport because he had to process some sales
before the end of the month. Claimant stated that he could not remember any additional
details after leaving his driveway and beginning his travel to McKeesport. Finally,
Claimant reviewed various text messages he exchanged with Guy Lettieri, Employer’s
sales manager, and Employer’s policy that he signed regarding the use of “demo”
vehicles. Id.
Mr. Bartko, Employer’s director of operations who manages all six of
Employer’s locations, presented testimony on behalf of Employer. He stated that
4
Claimant was hired in September 2007 as the commercial account manager for the
McKeesport location, which involved selling vehicles to commercial and fleet
customers. He stated that Claimant was given a “demo” vehicle to be used on a daily
basis for business purposes, including travel to and from his work location. Mr. Bartko
also described the “demo” vehicle policy and protocol, which includes a requirement
that the occupant use seatbelts and obey traffic laws, and stated that, if an employee
did not abide by the protocol, the “demo” vehicle could be taken away. Mr. Barko
noted that Claimant had his “demo” vehicle taken back for a six-month period for
health reasons. (F.F. No. 7.)
Mr. Bartko stated that Claimant was required to report to work each day,
Monday to Friday, from 9:00 a.m. to 5:00 p.m. He acknowledged that Claimant would
sometimes need to go to other locations, but stated that, on those occasions, Claimant
was required to inform the sales manager of where he would be. Mr. Bartko testified
that Claimant’s sales had to be processed by the end of the month, if he expected to be
paid for them that month, and that Claimant had to go to the location where the car was
sold in order to process the paperwork. He also indicated that Claimant was not set up
with a home office because his job required him to make personal contact with the
customers. Id.
Regarding the September 2013 meeting, Mr. Bartko stated that Claimant
asked Mr. Sergent whether he cared where Claimant worked or whether Claimant
needed to notify the sales manager if he would be working outside of the McKeesport
office. Mr. Bartko acknowledged that Mr. Sergent replied that he did not care whether
he was in the McKeesport office or making fleet sales contacts. Additionally, Mr.
Bartko stated that Claimant only had an office at the McKeesport location and was not
permitted to work from home. (F.F. No. 7.)
5
Finally, Mr. Bartko testified that in October of 2013, he was concerned
about the number of sales that Claimant had processed for the month and
communicated his concern to Claimant by text message. Further, Mr. Bartko stated
that on October 29, 2013, he asked Claimant to come into the McKeesport office to
process the remaining sales for the month. (F.F. No. 7.)
Employer also offered the testimony of Mr. Lettieri, the sales manager for
the McKeesport office. Mr. Lettieri testified that he was Claimant’s direct supervisor
for seven months prior to the accident. Mr. Lettieri stated that Claimant was required
to be at the McKeesport location to sell and deliver cars but stated that Claimant
occasionally needed to be at other locations, in which case he needed to check in with
Mr. Lettieri. Mr. Lettieri also stated that Claimant did not have permission to work
from home and estimated that Claimant worked from the McKeesport office
approximately 75% of the time. Finally, Mr. Lettieri stated that at the end of October
2013, he exchanged text messages with Claimant about processing his sales for the
month. (F.F. No. 8; R.R. at 158a.)
Mr. Sergent, Employer’s owner, testified at a hearing. He stated that, in
2007, he hired Claimant as a commercial sales manager. Mr. Sergent confirmed that
Claimant’s office was at the McKeesport location but noted that Claimant occasionally
worked from other locations. Specifically, Mr. Sergent stated that Claimant would
sometimes have to go to other locations to finalize sales of vehicles other than Ford
models and that Claimant would sometimes make field visits to prospective and current
customers. Mr. Sergent also confirmed that sales paperwork had to be generated from
the office where the sale arose and he estimated that 80% to 100% of Claimant’s sales
were out of the McKeesport location. With regard to Claimant’s “demo” vehicle, Mr.
6
Sergent testified that the purpose of “demo” vehicles was to demonstrate the product
to customers, as employees should “drive what [they] sell.” (F.F. No. 9.)
Mr. Sergent testified about the September 1, 2013 meeting during which
Claimant’s pay plan and work location were addressed. Mr. Sergent stated that he
informed Claimant that it was acceptable for him to work at Employer’s Blairsville or
Uniontown locations, but that he needed to keep Mr. Lettieri apprised of his location.
Mr. Sergent also testified that he told Mr. Lettieri, “it was okay for [Claimant] to work
out of our sisters stores, but he was still required to check in and make his whereabouts
known.” Id. Mr. Sergent stated that Claimant’s primary work location was not
changed as a result of the meeting, and Claimant was not permitted to work from home.
Id.
Employer offered the report and deposition testimony of Gregory
Sullenberger, a crash reconstructionist and former state trooper, as well as the
information from the crash data retrieval system of Claimant’s vehicle, a Toyota
4Runner. Mr. Sullenberger testified that he performed an investigation of the
circumstances of Claimant’s accident by downloading and reviewing data from the
airbag module, commonly referred to as the “black box,” of the vehicle involved in the
accident, as well as the police report, photographs of the accident, and Claimant’s
testimony. Additionally, Mr. Sullenberger stated that he visited the accident scene,
took measurements and photographs, and contacted PennDOT to get information about
traffic volume and crash data. (F.F. No. 10; R.R. at 492a-95a.)
Mr. Sullenberger noted that the collision occurred between the front right
portion of Claimant’s vehicle and a tree and boulder after the vehicle left the roadway.
Mr. Sullenberger determined that the vehicle was coasting at approximately 75 miles
per hour or faster prior to the collision and that, 1.6 seconds before impact, Claimant
7
applied the brakes but took his foot off the brake within a second before impact.
Additionally, Mr. Sullenberger noted that Claimant was not wearing a seatbelt. Mr.
Sullenberger was not able to provide a specific reason why Claimant’s vehicle left the
road, but opined that, if Claimant were not speeding and had worn a seatbelt, he would
have maintained better control of the vehicle and suffered less severe injuries. Mr.
Sullenberger indicated that he spoke with the police officer who responded to the
accident, who indicated that he intended to charge Claimant with two summary
offenses, but the charges never registered with PennDOT. Ultimately, Mr.
Sullenberger concluded that Claimant violated the law by speeding. (F.F. No. 10; R.R.
at 496a-515a.)
Employer also submitted the text message exchanges between Claimant
and Mr. Bartko and Claimant and Mr. Lettieri regarding Claimant’s need to process the
paperwork for his October 2013 sales before the month’s end. Employer additionally
submitted its Employee Manual, which contained the provision regarding use of
“demo” vehicles, stating that the vehicles must be operated within the posted speed
limit and that the driver must obey all traffic regulations. (F.F. Nos. 11-12.)
WCJ’s 2015 Interlocutory Decision and Order
By decision and order dated October 22, 2015, the WCJ concluded that
Claimant sustained his injuries in the course and scope of his employment. The WCJ
generally found all of the witnesses to be credible and noted that, with the exception of
minor differences, all of their testimony was largely consistent with each other and with
the documentary evidence. (F.F. No. 13.)
8
In his findings, the WCJ noted that Claimant had an office only at the
McKeesport location where 80% to 85% of his sales were generated. Additionally, the
WCJ found that Claimant was not permitted to work from home and that he spent
between 50% to 75% of his days at the McKeesport location. However, the WCJ also
found that Claimant’s job required him to occasionally travel to Employer’s other
locations and to meet with customers, but that he was required to advise his supervisor
of his whereabouts. As a result of the September 2013 meeting, the WCJ determined
that Claimant was permitted to work at any of Employer’s six locations, as long as he
advised his supervisor where he was working. (F.F. Nos. 16, 17, 18, 19, 20, 22.)
The WCJ found that, on the day of the accident, Claimant was en route to
the McKeesport location to process his outstanding October sales when he was
involved in the one-vehicle accident. In so finding, the WCJ stated that he credited the
evidence, including the text messages, which indicated that Claimant needed to go to
the McKeesport location to finish the processing of his sales for the month. The WCJ
relied upon Mr. Sullenberger’s interpretation of the black box data in finding that
Claimant was coasting at approximately 75 miles per hour shortly before the accident
but briefly applied the brakes immediately before impact. The WCJ also found that
Claimant was not wearing a seatbelt and that the responding police officer intended to
charge Claimant with two summary offenses, but noted that no charges were ever
processed, and that Claimant was not convicted of any offenses arising from the
incident. (F.F. Nos. 23-27.)
Accordingly, the WCJ found that there was no evidence to demonstrate
that the cause of the accident was the result of any intentional violation of law or
positive order. The WCJ noted that Mr. Sullenberger was unable to formulate an
opinion as to the actual cause of the accident, as the most he could offer was an opinion
9
that Claimant’s injuries “likely” would have been less severe if he had been traveling
at a lower speed or wearing a seatbelt. The WCJ further stated that, even if Mr.
Sullenberger’s testimony constituted a competent expert opinion, no opinion was
tendered that Claimant’s speeding caused the accident or any of his injuries.
Additionally, the WCJ noted that the fact Claimant had not applied the gas or brakes
(except briefly) in the seconds leading up to the impact “raised the possibility that he
was either incapacitated or distracted immediately before the impact.” (F.F. No. 28.)
Thus, the WCJ found that an attempt to discern the true cause of the accident and
Claimant’s injuries based upon the record would be, “at best, educated speculation” in
that there was no definitive proof offered by Employer regarding the impact, if any, of
Claimant’s alleged speeding and failure to wear a seatbelt. Id.
Ultimately, the WCJ concluded that Claimant did not have a fixed place
of employment at the time of the injury and was in the course of his employment at the
time of the motor vehicle accident. In so finding, the WCJ considered the “critical
aspect of the case” to be the September 2013 meeting between Claimant and Mr. Bartko
and Mr. Sergent, in which Mr. Sergent agreed that Claimant could work at any location
he desired so long as he checked in with his supervisor. (C.L. No. 3.) Although the
WCJ determined that the conversation was merely a ratification of their past practice,
the WCJ stated that, in any case, it was clear from that point forward that Claimant was
not required to report daily to the McKeesport office and could work from any of
Employer’s six locations, unless he was required to be elsewhere. Id.
Further, the WCJ concluded that, even if the conversation at the meeting
had not occurred, Claimant would still have been an employee without a fixed place of
employment in that his work locations were “very fluid depending upon his sales and
customer contact.” Id. The WCJ noted Claimant’s estimate that he spent as little as
10
50% of his time in McKeesport and that he would sometimes go a full week without
going to the office there. In further support of this point, the WCJ recounted that all of
Employer’s witnesses agreed that part of Claimant’s job required him to travel to the
other locations, which was borne out by the fact that he was given mobile
communication devices as well as a vehicle and gas card. Finally, the WCJ relied on
this Court’s holding in Holler v. Workers’ Compensation Appeal Board (Tri Wire
Engineering Solutions, Inc.), wherein we held, “The fact that an employer has a central
office at which an employee sometimes works is not controlling.” 104 A.3d 68, 71
(Pa. Cmwlth. 2014). (C.L. No. 3.)
Next, the WCJ determined that Claimant’s claim petition was not barred
by a violation of law or positive work order. Regarding Employer’s argument that
Claimant violated a positive work order because he was speeding and not wearing a
seatbelt—both of which were against its policy on company vehicles—the WCJ noted
that these actions were not so foreign to Claimant’s job duties so as to suggest that he
had abandoned them or rendered him a stranger to his work. Furthermore, the WCJ
found that, because Employer could not show what impact, if any, these violations had
on the accident, Employer failed to show that these violations caused or increased
Claimant’s injuries. (C.L. No. 5.)
Relatedly, the WCJ noted that Claimant was never charged with a crime
as a result of the accident and concluded that his claim should not be barred for
violation of a law. Moreover, the WCJ stated that even if Employer proved that
Claimant engaged in misconduct by speeding and not wearing a seatbelt, the citations
that the responding officer intended to charge him with were merely summary offenses
11
and not tantamount to a violation of the law under section 301(a) of the Workers’
Compensation Act (Act).2 (C.L. Nos. 5, 7.)
WCJ’s 2016 Final Decision and Order
On December 17, 2015, the parties entered a stipulation in which they
agreed that Claimant had been disabled since October 30, 2013; Claimant’s weekly
disability rate was $917.00; Claimant gave timely notice of the injury to Employer;
Claimant consented to supersedeas as to medical expenses, including any subrogation
lien in the event of an appeal to the Board; and, although Employer might seek
supersedeas for out-of-pocket expenses incurred by Claimant, Claimant did not agree
to supersedeas for them.
On January 19, 2016, the WCJ issued a final order, fully incorporating the
October 22, 2015 interlocutory decision and order. The WCJ found that the December
17, 2015 stipulation that the parties entered into was fair to all parties and supported by
the record, and therefore adopted and incorporated it into the decision. (F.F. No. 10.)
The WCJ further determined that Claimant proved he suffered a
compensable work-related injury, which disabled him, and granted his petition. (C.L.
No. 3.) The WCJ ordered Employer to pay Claimant $917.00 per week beginning
2
Section 301(a) of the Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §431. Section
301(a) states, in pertinent part:
Every employer shall be liable for compensation for personal injury to,
or for the death of each employe, by an injury in the course of his
employment, and such compensation shall be paid in all cases by the
employer, without regard to negligence, according to the schedule
contained in sections three hundred and six and three hundred and
seven of this article: Provided, That no compensation shall be paid
when the injury or death is intentionally self inflicted, or is caused by
the employe's violation of law . . . but the burden of proof of such fact
shall be upon the employer . . . .
12
October 30, 2013, as well as all work-related medical expenses and out-of-pocket
expenses, and assessed 10% interest on all due and unpaid compensation. The WCJ
further ordered Employer to pay $1,025.58 in litigation costs and 20% of the benefits
as a reasonable attorney’s fee to Claimant’s counsel. Employer appealed to the Board,
but the Board affirmed the WCJ’s decision, noting (1) it was not uncommon for
Claimant to travel among Employer’s various business locations as part of his job
duties; (2) Claimant was authorized to use a company demo vehicle as part of his job
duties; and (3) Claimant was provided a gas card for the vehicle. (Board’s op. at 13.)
Petition for Review
Employer thereafter filed a petition for review with this Court,3 alleging
that the WCJ erred in concluding that (1) Claimant was in the course of employment at
the time of the motor vehicle accident; (2) Claimant’s petition was not barred by section
301(a) of the Act because of a violation of law; and (3) Claimant’s claim petition was
not barred because of a violation of a positive work order/work rule. Employer sought
supersedeas from the Board pending this Court’s decision, which was denied.
Employer then sought supersedeas with this Court, which was granted with respect to
medical expenses, including any subrogation lien, by order dated July 27, 2017.
Discussion
In a workers’ compensation proceeding, the WCJ is the ultimate fact
finder and is the sole authority for determining the weight and credibility of evidence.
3
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow Lakes
Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa. Cmwlth.
2006).
13
Lombardo v. Workers’ Compensation Appeal Board (Topps Company, Inc.), 698 A.2d
1378, 1381 (Pa. Cmwlth. 1997). “As such, the WCJ is free to accept or reject the
testimony of any witness, including medical witnesses, in whole or in part.” Id. The
WCJ’s findings will not be disturbed on appeal when they are supported by substantial,
competent evidence. Greenwich Collieries v. Workmen’s Compensation Appeal Board
(Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). “Substantial evidence is such relevant
evidence which a reasonable mind might accept as adequate to support a finding.”
Berardelli v. Workmen’s Compensation Appeal Board (Bureau of Personnel, State
Workmen’s Insurance Fund), 578 A.2d 1016, 1018 (Pa. Cmwlth. 1990).
Moreover, where both parties present evidence, it is irrelevant that the
record contains evidence which supports a finding contrary to that made by the WCJ;
rather, the pertinent inquiry is whether evidence exists that supports the WCJ’s
findings. Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.),
721 A.2d 1152, 1155 (Pa. Cmwlth. 1998).
Additionally, on appeal, all inferences drawn from the evidence shall be
taken in favor of the party prevailing before the WCJ. Krumins Roofing and Siding v.
Workmen’s Compensation Appeal Board (Libby), 575 A.2d 656, 659 (Pa. Cmwlth.
1990).
Section 301(a) of the Act states, in relevant part,
Every employer shall be liable for compensation for personal
injury to, or for the death of each employe, by an injury in
the course of his employment, and such compensation shall
be paid in all cases by the employer, without regard to
negligence, according to the schedule contained in sections
three hundred and six and three hundred and seven[ ] of this
article: Provided, That no compensation shall be paid when
the injury or death is intentionally self inflicted, or is caused
by the employe's violation of law . . . but the burden of proof
of such fact shall be upon the employer . . . .
14
77 P.S. §431. Under section 301(c)(1) of the Act, compensable injuries must occur
during the course of employment while the employee is “actually engaged in the
furtherance of the business or affairs of the employer.” 77 P.S. §411(1). However, not
compensable are “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.” Id.
Under the “going and coming rule,” generally, injuries sustained while an
employee is traveling to and from his place of employment are considered “outside the
course and scope of employment,” and not compensable. Holler, 104 A.3d at 71.
However, such injuries will be considered to have occurred during the course and scope
of employment if one of the following exceptions applies:
(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 employer; or (4) the special circumstances are such that
the claimant was furthering the business of the employer.
Id. “The claimant bears the burden of proving his injuries were sustained in the course
and scope of his employment. Whether a claimant was acting within the course and
scope of his employment when his injury occurred is a question of law and is
reviewable de novo.” Id. at 70 n.3 (internal citation omitted).
Employees are classified as either stationary employees or traveling
employees, and those who fall under the “no fixed place of work” exception are
traveling employees. Beaver & Casey, Inc. v. Workmen’s Compensation Appeal Board
(Soliday), 661 A.2d 40, 42-43 (Pa. Cmwlth. 1995). The determination of whether a
claimant is a traveling employee is made on a case-by-case basis and takes into
consideration “whether the claimant’s job duties involve travel, whether the claimant
15
works on the employer’s premises, or whether the claimant has no fixed place of work.”
Holler, 104 A.3d at 71 (quoting Beaver & Casey, Inc., 661 A.2d at 42.) The course of
employment is broader for traveling employees, who are exempt from the “going and
coming rule.” Holler, 104 A.3d at 71.
Additionally, the “fact that [a] claimant was injured while traveling home
in [an] employer’s vehicle does not automatically support a conclusion of law that the
injury occurred in the course of employment.” Steckel v. Workers’ Compensation
Appeal Board (Have-A-Vend, Inc.), 53 A.3d 946, 950 n.3 (Pa. Cmwlth. 2012) (quoting
Wachs v. Workers’ Compensation Appeal Board (American Office Systems), 884 A.2d
858, 863 (Pa. 2005)).
At issue here is the WCJ’s determination that Claimant was without a
fixed place of employment and, hence, was exempt from the “going and coming rule.”
Employer argues that such a determination is unsupported by the facts or the law and
analogizes the present case to Biddle v. Workmen’s Compensation Appeal Board
(Thomas Mekis & Sons, Inc.), 652 A.2d 807 (Pa. 1995) (project manager of a company
that built and repaired bridges involved in a vehicular accident while driving home),
Davis v. Workmen’s Compensation Appeal Board (Foodarama Supermarkets, Inc.),
398 A.2d 1105 (Pa. Cmwlth. 1979) (pharmacist for a supermarket involved in fatal
accident while driving home from one of the stores in which he periodically worked),
and Steckel, 53 A.3d at 946 (manager of coffee division of a vending company involved
in vehicular accident after delivering a replacement coffee pot to a customer). In each
of these cases, it was determined that the employees were not within the course of
employment.
Employer distinguished Holler, in which this Court held that the cable
technician-claimant was a traveling employee, emphasizing that the claimant did not
16
have “any office or any fixed worksite” and that his work was performed in the field
at his customers’ various locations. (Employer’s brief at 18.) Employer asserts that,
if Holler’s holding is not limited to its factual circumstances, it would lead to absurd
results, including allowing the classification of “traveling employee” in every instance
where the claimant works for an employer with multiple locations to which he
occasionally must travel. For example, Employer asserts that attorneys who must
travel to other counties to attend hearings or whose firms have multiple locations out
of which they sometimes work, as well as Workers’ Compensation Appeal Board
members who travel to hear oral argument throughout the Commonwealth, would be
considered employees without a fixed place of employment simply because their
employer has multiple locations to which they occasionally must travel. Thus,
Employer argues, if any of those employees were to be injured while commuting to
their primary office, they would be considered within the course of employment
because, under the WCJ’s analysis here, they are employees without a fixed place of
employment. Such a broad application, Employer argues, would lead to the conclusion
that such employees are in the course of employment 24 hours a day unless there has
been a clear deviation or departure.
With regard to Claimant, Employer asserts that, had he been injured while
traveling between dealerships, he would have been in the course of employment;
however, such was not the case, as Claimant was traveling from his home to the
McKeesport location.
Employer also takes issue with the factors the Board relied upon in
affirming the WCJ. Employer argues that the second and third factors—that Claimant
was provided a demo vehicle and gas card for his job duties—are inapplicable because
there was never an assertion in this case that Claimant was provided the vehicle and
17
card as part of an employment contract, as it asserts there was not an employment
contract.4 Employer cites section 301(c) of the Act, which states, in part, that “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 the injury” are
not compensable. 77 P.S. §411(1). As to the remaining factor, that it was not
uncommon for Claimant to travel among Employer’s various locations as part of his
job duties, Employer asserts this alone does not equate to Claimant being a traveling
employee.
We agree that the present facts do not support the conclusion that
Claimant was a traveling employee without a fixed place of employment. Here, the
motor vehicle accident occurred while Claimant was traveling into the McKeesport
office, where he spent up to 75% of his time and in which he maintained his sole office
with his personal and business effects and name on the door, to perform his regular
monthly processing of sales. Although Claimant did occasionally have to process his
sales at other locations, on the day of the accident, Claimant was traveling to the
McKeesport location, out of which he made 80% to 85% of his sales. Indeed, it is clear
that Claimant was generally expected to come to the McKeesport office for work unless
he had an articulable reason to be elsewhere. As such, Claimant’s occasional work
from the other locations was the exception, not the rule.
Based upon these facts, when considering the three factors for
determination of whether a claimant is a traveling employee, it is clear that Claimant
was a stationary employee because, while his job involved travel, Claimant had a fixed
place of work, which was primarily on Employer’s premises at the McKeesport
location. See Beaver & Casey, Inc., 661 A.2d at 42.
4
Claimant testified that he had an employment contract with Employer but produced no
evidence of the same.
18
Claimant’s employment situation most closely resembles that of the
decedent in Davis, who worked as pharmacist for a supermarket chain with several
locations. 398 A.2d at 1106-07. The decedent primarily worked at the employer’s
Reading store but was expected, when necessary, to work at other locations. Id. On
the day of the fatal car accident, decedent was returning home from the employer’s
Bethlehem store. Id. This Court determined that the decedent’s injuries were not
sustained in the course of employment.
Similarly, here, Claimant primarily worked from the McKeesport
location, but was occasionally required to work at Employer’s other locations as well.
While we are sympathetic to Claimant’s condition and the extent of his injuries, given
the aforementioned circumstances, we cannot agree that the facts support the
conclusion that Claimant was a traveling employee within the course of employment
when his injuries occurred. Instead, because Claimant was a stationary employee, and
because none of the remaining exceptions apply, the going and coming rule is
applicable and, accordingly, the injuries he sustained during his commute to work did
not occur within the course of his employment.
Accordingly, for the foregoing reasons, the order of the Board is
reversed.5
________________________________
PATRICIA A. McCULLOUGH, Judge
5
Based upon the above determination, we need not reach Employer’s remaining arguments
regarding whether an affirmative defense applies.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tri Star Auto Group, :
Petitioner :
: No. 549 C.D. 2017
v. :
:
Workers’ Compensation Appeal :
Board (Bortz), :
Respondent :
ORDER
AND NOW, this 17th day of January, 2018, the order of the Board,
dated April 7, 2017, is hereby reversed.
________________________________
PATRICIA A. McCULLOUGH, Judge