L. Best v. WCAB (City of Philadelphia) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ladelphia Best, :
Petitioner :
:
v. : No. 1578 C.D. 2019
: Submitted: February 28, 2020
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: July 13, 2020
Ladelphia P. Best (Claimant) petitions for review of an adjudication of
the Workers’ Compensation Appeal Board (Board) that denied her claim petition
filed against the City of Philadelphia (Employer). In doing so, the Board affirmed
the decision of the Workers’ Compensation Judge (WCJ) that Claimant was not
acting in the course and scope of her employment at the time of her injury. Claimant
asserts that the Board erred in holding that the injury she sustained just before
entering Employer’s vehicle was not work-related. We affirm the Board.
Background
For 15 years, Claimant worked for Employer as a waste recycling
laborer, which involved empty recycling cans into the recycling truck. On August
28, 2017, she filed a claim petition pursuant to the Workers’ Compensation Act
(Act),1 alleging that she sustained an injury to her left foot on June 8, 2017, while
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.4, 2501–2710.
she was “waiting for the [Employer] truck to pick [her] up to go to area 5[.]”
Certified Record (C.R.), Item 2, at 2. Employer denied all allegations, and hearings
were held before the WCJ. With the agreement of the parties, the WCJ bifurcated
the proceeding to decide, first, whether Claimant was acting within the course and
scope of her employment at all relevant times.
Claimant testified in person before the WCJ on November 9, 2017. She
stated that she worked night shift from 10:00 p.m. to 6:00 a.m. At 9:30 p.m. each
night, she and her co-workers would be picked up at a Wawa Market (Wawa) in an
Employer vehicle to “go to the yard to start [their] job[s].” Notes of Testimony
(N.T.), 11/9/2017, at 9; Reproduced Record at 24a (R.R. __). At the yard, Claimant
would sign in and receive her assigned route, which was located in Center City.
Claimant was paid for the hours of 10:00 p.m. to 6:00 a.m.
Claimant testified that on June 8, 2017, “a little before 9:30 [p.m.,]” she
went into the Wawa “to get [] something to drink,” while the other workers walked
to the pick-up location. Id. at 19; R.R. 29a. After leaving the store, Claimant was
walking through the Wawa parking lot when a car backed up over her left foot. On
cross-examination, Claimant clarified that the pick-up location was across the street
from the Wawa parking lot.
Claimant presented the deposition testimony of David Hall, a co-
worker, who drove Employer’s vehicle. Hall testified that for six years the pick-up
location was across the street from the Wawa. Employees, including Claimant, took
a bus to get to that pick-up location. Hall drove the employees to the work yard
where they dispersed to their assigned trucks to work in “different parts of Center
City.” N.T., 3/19/2018, at 14; R.R. 49a. The workers did not have to go back to the
yard at the end of their shift.
2
Employer presented the deposition testimony of Elizer Beauchamp, its
crew supervisor. He testified that the workers would call the yard when they arrived
at the bus station “at Wawas (sic)” and then be picked up across the street. Id. at 7;
R.R. 58a. Employer’s vehicle did not “normally go into the Wawas (sic). [It] usually
make[s] a quick U-turn and wait[s] facing east towards the yard.” Id. at 12; R.R.
63a.
On June 21, 2018, the WCJ denied the claim petition, concluding that
Claimant was not acting within the course and scope of her employment at the time
of her injury. Resolving “all essential issues of credibility and factual disputes in
favor of Employer,” WCJ Decision, 6/21/2018, at 4, Finding of Fact No. 6, R.R. 4a,
the WCJ found that the place of Claimant’s injury, i.e., the Wawa parking lot, was
not part of Employer’s “premises” for purposes of Section 301(c)(1) of the Act, 77
P.S. §411(1). The pick-up location was across the street from the Wawa. The WCJ
further found that Claimant was not a traveling employee because she had always
been assigned to the same area within Center City, and she was not furthering
Employer’s business by stopping to get a drink at the Wawa store.
In her appeal to the Board, Claimant argued that the WCJ erred in
finding that the Wawa’s parking lot was not part of Employer’s premises and that
she was not a traveling employee. The Board affirmed the WCJ’s decision. It
explained that had Claimant been injured while being transported in the Employer
vehicle, then her injury would have been compensable. Board Adjudication,
10/24/2019, at 8; R.R. 17a. Claimant now petitions this Court for review.
3
Appeal
On appeal,2 Claimant raises one issue, i.e., that the Board erred in
concluding that her injury did not occur in the course and scope of her employment.
Claimant contends that her injury was compensable because Employer offered her
transportation to and from work; she was a traveling employee furthering
Employer’s business at the time of her injury; and the site of injury was part of
Employer’s premises, citing US Airways, Inc. v. Workers’ Compensation Appeal
Board (Bockelman), 221 A.3d 171 (Pa. 2019).
Analysis
To be eligible for compensation, an injured employee must establish
that her injury occurred in the course of employment and that it was related thereto.
Section 301(c) of the Act, 77 P.S. §411.3 Whether an employee is injured in the
course of employment is a question of law to be determined on the basis of the
2
This Court’s review of a workers’ compensation adjudication determines whether an error of law
or a constitutional violation was committed or whether the findings of fact are supported by
substantial, competent evidence. Myers v. Workers’ Compensation Appeal Board (University of
Pennsylvania and Alexsis, Inc.), 782 A.2d 1108, 1110 n.1 (Pa. Cmwlth. 2001).
3
Section 301(c)(1) provides in pertinent part:
The terms “injury” and “personal injury,” as used in this act, shall be construed to
mean an injury to an employe, regardless of his previous physical condition, except
as provided under subsection (f), arising in the course of his employment and
related thereto.… The term “injury arising in the course of his employment,” as
used in this article … shall include all [] injuries sustained while the employe is
actually engaged in the furtherance of the business or affairs of the employer,
whether upon the employer’s premises or elsewhere, and shall include all injuries
caused by the condition of the premises or by the operation of the employer’s
business or affairs thereon, sustained by the employe, who, though not so engaged,
is injured upon the premises occupied by or under the control of the employer, or
upon which the employer’s business or affairs are being carried on, the employe’s
presence thereon being required by the nature of his employment.
77 P.S. §411(1).
4
WCJ’s findings of fact. Markle v. Workers’ Compensation Appeal Board (Bucknell
University), 785 A.2d 151, 153 (Pa. Cmwlth. 2001).
An injury takes place in the course of employment if it occurs in either
one of two distinct situations. First, an injury is compensable if it occurs while the
claimant is furthering the business or affairs of her employer, whether the injury
occurs on or off the employer’s premises. U.S. Airways v. Workers’ Compensation
Appeal Board (Dixon), 764 A.2d 635, 640 (Pa. Cmwlth. 2000). Second, if the
claimant is not furthering the employer’s business at the time of the injury, she is
entitled to benefits if she is injured “on the employer’s ‘premises’ at a reasonable
time before or after the work period.” Newhouse v. Workmen’s Compensation
Appeal Board (Harris Cleaning Service, Inc.), 530 A.2d 545, 547 (Pa. Cmwlth.
1987). To be eligible for benefits in this situation, the claimant must prove that: (a)
the premises were occupied or under the control of the employer, or where the
employer’s business or affairs are being carried on; (b) she was required by the
nature of her employment to be present on the employer’s premises; and (c) she
sustained injuries caused by the condition of the premises or by operation of the
employer’s business or affairs thereon. Workmen’s Compensation Appeal Board
(Slaugenhaupt) v. United States Steel Corporation, 376 A.2d 271, 273 (Pa. Cmwlth.
1977).
Generally, under what is known as the “coming and going” rule,
injuries sustained while an employee is traveling to or from her place of employment
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 four exceptions to the coming and going rule.
5
An injury sustained during an employee’s commute to or from work is compensable
if any of the following apply:
(1) the employment contract included transportation to and from
work;
(2) the employee has no fixed place of work;
(3) the employee is on 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).
Claimant asserts that she meets the first exception to the coming and
going rule because Employer picked her up at the Wawa and transported her to the
work yard. Claimant argues that “whether the actual vehicle pulls into the [Wawa]
parking lot or not is inconsequential” because she would not have been at the Wawa
but for the instruction of Employer. Claimant Brief at 14. Employer counters that
Claimant waived the transportation arrangement exception to the coming and going
rule because she did not present that argument to the WCJ or the Board. Even so,
Employer argues that the transportation arrangement exception is inapplicable
because Claimant was injured before arriving at the pick-up location.
Issues are waived if not preserved at every stage of a proceeding.
Wheeler v. Workers’ Compensation Appeal Board (Reading Hospital and Medical
Center), 829 A.2d 730, 734 (Pa. Cmwlth. 2003). However, whether Claimant is
eligible for benefits under the transportation arrangement exception to the coming
and going rule is an issue encompassed within the more general issue of whether she
was acting within the scope of employment at the time of injury. See Toal Associates
6
v. Workers’ Compensation Appeal Board (Sternick), 814 A.2d 837, 841 n.3 (Pa.
Cmwlth. 2003). Here, the Board held that Claimant was not entitled to compensation
because she was not injured while being transported in Employer’s vehicle, which
is an issue subsidiary to the scope of employment issue and, thus, properly before
this Court. Id. We reject Employer’s waiver argument.
However, we conclude that Claimant did not satisfy the transportation
arrangement exception to the coming and going rule. The injury occurred in the
Wawa parking lot before she reached the pick-up location. Stated otherwise, the
Wawa parking lot was outside of the transportation arrangement between the parties.
Claimant acknowledged that the pick-up location was across the street
from the Wawa. However, she argues that she would not have been at the Wawa
but for the existence of the transportation arrangement. A similar argument was
presented in Pittsburgh Hyatt House, Inc. v. Workmen’s Compensation Appeal
Board, 437 A.2d 461 (Pa. Cmwlth. 1981). In that case, a claimant sustained a
work-related injury, and his supervisor sent him to a nearby hospital for treatment.
While leaving the hospital and heading home, the claimant was robbed at a bus stop
and sustained new injuries. The referee awarded the claimant benefits for the new
injuries as well as for those suffered at the job site, and the Board affirmed. The
employer appealed, asserting that the injuries the claimant suffered at the bus stop
were not work related. We agreed, rejecting the claimant’s assertion that “but for”
his employment, he would not have been at the bus stop.
We explained that the “but for” test is used to determine whether an
injury was related to employment, not whether the claimant sustained the injury in
the course of employment. Id. at 463; see also Section 301(c) of the Act, 77 P.S.
7
§411 (injured employee must establish that her injury occurred in the course of
employment and that it was “related thereto”). We further explained, as follows:
The “but for” language [in Workmen’s Compensation Appeal
Board v. Borough of Plum, 340 A.2d 637 (Pa. Cmwlth. 1975),[4]]
was not intended for application to determinations of whether the
employee’s injury was sustained while he was actually engaged
in the business or affairs of his employer and certainly not
intended to provide that every injury sustained by a worker which
would not have been sustained if he had not been employed,
including injuries sustained while going to and from work,
should be compensable.
Pittsburgh Hyatt House, 437 A.2d at 463.
Based on the precedent of Pittsburgh Hyatt House, we reject Claimant’s
argument that her injury is compensable under the first exception of the coming and
going rule. Claimant was directed to meet at the pick-up location across the street
from the Wawa, not in the Wawa parking lot, as the WCJ so found.
Claimant argues, alternatively, that she is eligible for benefits under the
second exception to the coming and going rule. Claimant contends that she had no
fixed place of work; her position as a laborer involved “going from trash can to trash
can throughout Center City.” Claimant Brief at 19. She asserts that her job is
analogous to that of the claimant in Holler v. Workers’ Compensation Appeal Board
4
Borough of Plum involved an application of the exception to the coming and going rule for
employees without fixed places of work. In that case, the deceased claimant was a truck driver
who hauled asphalt between an asphalt plant and a job site in another town. He was shot to death
by fleeing bank robbers while his truck was stopped at the side of the road. We held that the
decedent was actually engaged in the furtherance of his employer’s business at the time of his
death and that his stop beside the road for his personal comfort was a minor deviation from the
furtherance of his employer’s business. We further held that the decedent’s death was related to
his employment and, thus, compensable under Section 301(c) of the Act, 77 P.S. §411. We stated
that “[c]learly, but for hauling asphalt the decedent would not have been in a position to be shot.”
Borough of Plum, 340 A.2d at 640 (emphasis added).
8
(Tri Wire Engineering Solutions, Inc.), 104 A.3d 68 (Pa. Cmwlth. 2014), a cable
technician who this Court held was a traveling employee. Employer counters that
Claimant worked “at the same fixed location,” which was the recycling route within
Center City. Employer Brief at 14. Claimant presented no contrary evidence.
When a traveling employee is injured after setting out on the
employer’s business, it is presumed that she is furthering the employer’s business at
the time of the injury. Holler, 104 A.3d at 72. This presumption is rebuttable by the
employer. Id. “Whether a claimant is a traveling employee is determined on a case
by case basis, and we consider ‘whether the claimant’s job duties involve travel,
whether the claimant works on the employer’s premises or whether the claimant has
no fixed place of work.’” Id. at 71 (quoting Beaver & Casey, Inc. v. Workmen’s
Compensation Appeal Board (Soliday), 661 A.2d 40, 42 (Pa. Cmwlth. 1995)).
Further, “[t]he fact that an employer has a central office at which an employee
sometimes works is not controlling.” Toal Associates, 814 A.2d at 841. In
determining whether a claimant is a traveling employee, “we must keep in mind that
the [Act] is remedial in nature and intended to benefit the worker, and, therefore, the
Act must be liberally construed to effectuate its humanitarian objectives.” Peterson
v. Workmen’s Compensation Appeal Board (PRN Nursing Agency), 597 A.2d 1116,
1120 (Pa. Cmwlth. 1991). Thus, the course of employment is “necessarily broader”
for traveling employees. Holler, 104 A.3d at 71.
In Hohman v. George H. Soffel Co., 46 A.2d 475 (Pa. 1946), the
claimant was employed as a plumber who worked at various places, as instructed by
his employer. The claimant was struck by a vehicle one morning while en route to
a job site. In affirming the award of compensation benefits, our Supreme Court
found that the claimant’s employment “required him to be at one place one day on
9
the employer’s business and at a different place, perhaps miles distant, for like
purpose on another or even a succeeding day.” Id. at 476. The Supreme Court
reasoned:
The service of the employer’s interest in the circumstances
shown necessarily made of the claimant a “roving” or “itinerant”
workman. The travel to and from his home and the place of his
current work was not the ordinary travel of a workman between
his home and his regular place of work. The claimant’s travel,
for which he was reimbursed by his employer, was an essential
part of the expeditious performance of his work in the
furtherance of the employer’s business, as was also his
transportation of the supplies which were stored at his home for
his use in his work. Under the established facts of this case, his
home rather than his employer’s shop was the usual starting and
stopping place of his course of employment. The claimant’s
status was analogous to that of a “travelling salesman” to whom
compensation is payable for injuries suffered while going about
in the actual furtherance of his employer’s business.
Id. at 476-77 (internal citations omitted) (emphasis added).5
Likewise, in Holler, this Court held that a cable technician was a
traveling employee. The claimant was responsible for installing cable and network
services for his employer’s customers. He began each workday by reporting to the
employer’s facility, where he received his assignments for the day and picked up his
equipment. He then traveled and worked at various customer locations. The
claimant was given a company van which he used to drive to and from work. The
claimant was injured in an automobile accident one morning while en route to the
employer’s facility.
5
The Hohman court did not expressly mention the “no fixed place of work” exception; rather, the
rationale concerned whether the injury occurred while the employee was in the furtherance of the
employer’s business.
10
Although the claimant had to report to the employer’s facility, he stayed
there briefly, and he then spent his whole workday traveling to install services or
make repairs for his employer’s customers. “The fact that he initially stopped at [his
e]mployer’s office is not dispositive.” Holler, 104 A.3d at 72 (citing Comcast
Corporation v. Workers’ Compensation Appeal Board (Clark) (Pa. Cmwlth., No.
1645 C.D. 2011, filed April 18, 2012), slip op. at 7-8). As a traveling employee, the
claimant was entitled to a presumption that he was working for the employer during
the drive from his house to the employer’s facility, and the employer failed to rebut
this presumption. We held that the claimant was injured during the course and scope
of his employment and remanded the matter for further proceedings.
Hohman and Holler are distinguishable. Unlike the plumber in
Hohman or the cable technician in Holler, who traveled to and from their homes and
the job sites as their employers directed, here Claimant worked a fixed route that
started and ended within Center City. Claimant presented no evidence that her home
was “the usual starting and stopping place of [her] course of employment.” Hohman,
46 A.2d at 477. Claimant was not paid during the time of her commute. Employer
did not transport Claimant to the work yard from her home.
In sum, the record established that Claimant had a fixed place of work,
and her travel to and from her home and the job site was not an essential part of the
performance of her job in furtherance of Employer’s business. Accordingly, we hold
that she was not a traveling employee.
Finally, Claimant contends that the Wawa parking lot constituted
Employer’s “premises” within the meaning of Section 301(c)(1) of the Act, 77 P.S.
§411(1). Claimant Brief at 24. Claimant argues that the Board erred by
distinguishing the subject case from Bockelman, 221 A.3d 171. In that case, an
11
airline employee was injured while riding an airport shuttle bus to an employee
parking lot after her shift ended. The employer did not own the shuttle bus or the
parking lot. The Board granted the claimant workers’ compensation benefits, and
this Court affirmed. On further appeal, the employer argued that the employee was
injured on the shuttle bus, which was not its “premises” for purposes of Section
301(c)(1) of the Act. The Supreme Court rejected this argument. It reasoned that
an employer’s premises under Section 301(c)(1) of the Act is not limited to property
that the employer legally owns or physically controls. It concluded that the airport
parking lot was integral to the employer’s business operations because the employee
parked her vehicle there and the shuttle service, which the employee used to enter
the workplace, operated there. As such, the Supreme Court held that the employee
was injured on the employer’s “premises” within the meaning of Section 301(c)(1)
of the Act.
Claimant argues that the Wawa parking lot is similar to the shuttle bus
in Bockelman because, although not owned or controlled by Employer, it was “the
means by which [she] reported to work.” Claimant Brief at 24. However, the WCJ
found that Employer’s pick-up location was across the street from the Wawa parking
lot, and Claimant does not dispute this finding. Claimant did not park her vehicle in
the parking lot, and she did not have to walk through the parking lot to reach the
pick-up location. Rather, Claimant, along with her co-workers, took a bus to the
pick-up location. N.T., 3/19/2018, at 12, R.R. 47a (Hall Deposition); N.T.,
3/19/2018 at 7, R.R. 58a (Beauchamp Deposition). Claimant presented no evidence
that the parking lot had any relation to the operation of Employer’s business and,
thus, we affirm the Board’s holding that Claimant did not sustain an injury on
Employer’s premises for purposes of Section 301(c)(1) of the Act.
12
Conclusion
Claimant was not acting in the course of her employment at the time of
her injury. Claimant did not establish that she was exempt from the coming and
going rule. She was not injured on Employer’s premises within the meaning of
Section 301(c)(1) of the Act. Accordingly, we affirm the Board’s order.
_____________________________________
MARY HANNAH LEAVITT, President Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ladelphia Best, :
Petitioner :
:
v. : No. 1578 C.D. 2019
:
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
ORDER
AND NOW, this 13th day of July, 2020, the order of the Workers’
Compensation Appeal Board dated October 24, 2019, in the above-captioned matter
is hereby AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge