McKinney Drilling Company and Zurich American Ins. Co. v. WCAB (Higinbotham) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
McKinney Drilling Company and :
Zurich American Insurance :
Company, :
Petitioners :
:
v. : No. 2105 C.D. 2014
: Submitted: October 16, 2015
Workers’ Compensation Appeal :
Board (Higinbotham), :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: November 5, 2015
McKinney Drilling Company and its insurer, Zurich American
Insurance Company (collectively, Employer), petition for review of the order of
the Workers’ Compensation Appeal Board (Board) affirming the decision of a
workers’ compensation judge (WCJ) that granted the claim petition of Lee
Higinbotham (Claimant) for benefits under the Pennsylvania Workers’
Compensation Act (Act)1 because he was a travelling employee who was injured
while in the course and scope of his employment. We affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
Employer has its home office in Delmont, Pennsylvania. Claimant
did not report to this office while employed as a drill rig equipment operator for
Employer, but reported to various field locations. In February 2008, Claimant had
finished his workday at a field site in Virginia and left to return home to
Pennsylvania. While on his way home, he stopped to fix a flat tire and fell out of
the bed of his truck sustaining injuries. In October 2010, Claimant filed a claim
petition2 seeking compensation benefits alleging that he had sustained neck and
low back injuries, post-concussive syndrome, and depression as a result of the
accident while in the course and scope of his employment with Employer.
At a hearing before the WCJ, Claimant testified that he did not work
at Employer’s home office in Delmont, but at different field locations in the
Northeast region of the United States. He stated that he was assigned to these
drilling projects by the General Superintendent and 95% of the projects required
him to stay away from home. Claimant testified that he used his personal pickup
truck whenever he went to the home office to take back broken parts or to pick up
new parts before he headed out to a project. He stated that his truck had a mounted
toolbox in the bed and he carried some personal tools like hand tools and wrenches
that he was told to bring to the worksite to repair parts during machinery
breakdowns. He testified that he paid for the tools, but that Employer would
replace a broken tool or reimburse him for a replacement.
2
In a claim petition proceeding, a claimant bears the burden of proving all of the
elements necessary to support the award of compensation benefits, including establishing a
causal relationship between the claimant’s injury and his disability. Inglis House v. Workmen’s
Compensation Board (Reedy), 634 A.2d 592, 595 (Pa. Cmwlth. 1993).
2
Claimant stated that at the time of his injury, he was assigned to work
down in Virginia on a power line project. Claimant testified that he stayed
overnight in a hotel from Sunday night to Friday night for the entire week and that
Employer paid directly for the hotel. He testified that he also received a per diem
for his meals and while he used his truck, he was reimbursed for the gas. He stated
that he rode to the site one time with his superintendent, but that he drove his truck
all of the other times.
Claimant stated that on the day of his injuries, he had finished work at
the project and returned home to Pennsylvania when the tire on his truck blew out
while he was on a bridge near Uniontown. He testified that he pulled off at the end
of the bridge to fix the tire and that when he “turned to get out of the bed” after
returning his tools to the truck, “[his] feet went out from under [him], and [he]
went over the side” of the truck. (Reproduced Record (RR) 18). He stated that
there was snow on the ground and in the bed of his truck at that time. He testified
that he “remember[ed] somebody helping [him] get up off the ground. And they
asked [him] if [he] was okay. And then, they helped [him] get into the truck, and
[he] left.” (Id. 19). He stated that he then drove to Uniontown Hospital due to a
headache and low back pain and that a week later his neck started hurting and his
headaches continued.
Claimant testified that the following Monday, he contacted William
Hill (Hill), the superintendent of the job, and Tom McElhaney (McElhaney),
Employer’s Northeast regional superintendent, to notify them of his injuries. He
stated that he was scheduled to go back to Virginia the following week, but that he
3
has not been able to go back to work because he is not able to climb up onto the
drill rig or sit on the rig and he continues to have leg pain, back pain and
headaches. (RR 74-75). Claimant testified that the Virginia project had already
started before he got there and that he did not know how long the project would
last because “[i]t would have been until it was done or until they shipped me
somewhere else.” (Id. 63).
Beverly Fisher, Claimant’s girlfriend, testified that he called her and
told her that he fell off of his truck after it had happened. She stated that when he
got home, he told her that he had pain in his head, neck, shoulders and back and
she took him to the hospital.
Roger Sapp testified that he was driving by the pull-off at the end of
the bridge when he saw a parked truck with its lights on and Claimant lying on the
ground near the truck. He stated that he stopped and helped Claimant up and that
Claimant told him that he had fallen over the side of the truck and just wanted to
go home.
McElhaney testified that the project in Virginia involved installing
poles for an electric line, that it had several phases, and that “[i]t was scheduled for
probably about 35 to 40 working days.” (RR 145). He stated that Claimant started
work on the project a couple of weeks prior to his February 2008 injuries, and
while Employer didn’t normally change work assignments during a project “too
often,” it was “a possibility” that Claimant could work at other job sites during the
project in Virginia. (Id. 151). But, otherwise, Claimant would have continued to
4
work on the project until it was completed in April 2008. (Id. 151-152). He
testified that most of the projects that Claimant worked on were on the road and
required overnight stays. He confirmed that Employer provided lodging for
workers at the Virginia project, and that Claimant was also given a per diem and
reimbursement for fuel costs driving to and from the job site. He stated that
Claimant drove his own truck to the Virginia worksite and that he drove from
home and reported to the hotel. He testified that there might have been times that
Claimant was required to take his own tools to a worksite, but “[i]f there was a
superintendent on the job, they would not need their tools” and that there was a
superintendent at this job location. (Id. 147). McElhaney stated that he first
learned of Claimant’s injuries from Hill, and that Claimant called him over the
weekend and told him that he did not think that he would be back to work. He
testified that he heard from Claimant a few weeks later to sign some insurance
paperwork.
Hill testified that the project was supposed to last 3-1/2 to 4 months,
but that there was no fixed date for it to end. He stated that Employer provided
lodging for its employees in Virginia about 10 to 15 miles away from the worksite,
and that he drove Claimant to the worksite every day in the company truck. He
testified that Claimant rode down to Virginia with him one or two times, but that
Claimant drove his own truck down most of the time. He confirmed that Claimant
was not working at any other worksites while working in Virginia, and that he had
his own set of tools in his truck and that he may have, on occasion, used some of
those tools at the worksite. He stated that Claimant called him when he got the flat
tire, but told him that he would take care of it. He testified that Claimant called
5
him the next day or two after to tell him that he had fallen out of his truck and hurt
his back.
Claimant presented documents from the Uniontown Hospital
Emergency Department indicating that he sought medical treatment for mid and
low back pain a couple of hours after his fall. His treating chiropractor, Dr. Kevin
Lotman, testified that Claimant sought treatment for pain involving his neck,
upper/lower back, hip and leg. Based on Claimant’s history and his examination,
Dr. Lotman diagnosed Claimant as having lumbar and thoracic subluxations
related to his fall and that he sustained a reverse whiplash-type injury to his neck
from falling on his back. Dr. William Mitchell (Dr. Mitchell), a board-certified
orthopedic surgeon, testified that he examined Claimant in 2010 at the request of
an insurance company and found that Claimant had post-traumatic cervical and
low back conditions that were causally related to his fall. Dr. Mitchell stated that
Claimant has been treating with him since that time and he opined that Claimant is
totally disabled from performing his pre-injury job.3
In May 2012, the WCJ issued a decision granting Claimant’s claim
petition, finding that Claimant’s injuries sustained from his fall are compensable
under the Act. The WCJ recognized that the injuries were sustained when
Claimant was on his way home, and that injuries while commuting to and from
work are not generally within the course and scope of employment. However, the
3
The WCJ rejected as not credible the testimony of full recovery offered by Dr. Thomas
Kramer, a board-certified orthopedic surgeon.
6
WCJ determined that an exception to the “coming and going rule4” applied because
the nature of Claimant’s job “required him to perform the duties as a heavy
equipment operator ‘in the field’ at ‘different locations’” so that “[C]laimant did
not have a fixed location that he worked at for [Employer]. Rather, he would work
at the job site he was assigned by his superintendent and the various job sites he
works for [E]mployer, throughout his years of employment … were located
throughout the Northeast region of the United States.” (WCJ 5/31/12 Decision at
17).
The WCJ acknowledged Employer’s argument that Claimant had a
“fixed place of employment” at the time that he sustained his injuries “because he
had been [at] work at the Virginia job site for an extended period of time and he
was working there on an exclusive basis.” (WCJ 5/31/12 Decision at 17).
Nevertheless, the WCJ found:
4
In a claim petition, the burden is on the claimant to prove that he was injured during the
course and scope of employment. Olszewski v. Workmen’s Compensation Appeal Board (Royal
Chevrolet and American Fire and Casualty), 648 A.2d 1255, 1257 (Pa. Cmwlth. 1994).
“Whether an employee is acting within the course and scope of his or her employment at the
time of injury is a question of law to be determined on the basis of the [WCJ’s] findings of fact
and is reviewable by this Court.” Id. Generally, an employee’s injury does not occur in the
course and scope of employment if the employee is injured while travelling to or from the
employer’s premises. Biddle v. Workmen’s Compensation Appeal Board (Thomas Mekis &
Sons, Inc.), 652 A.2d 807, 809 (Pa. 1995). This is often referred to as the “coming and going
rule.” Id. at 808. However there are four exceptions to this rule: “1) claimant’s employment
contract includes transportation to and from work; 2) claimant has no fixed place of work; 3)
claimant is on a special mission for employer; or 4) special circumstances are such that claimant
was furthering the business of the employer.” Setley v. Workmen’s Compensation Appeal Board
(Kawecki Berylco Industries), 451 A.2d 10, 11 (Pa. Cmwlth. 1982).
7
[E]ven though [C]laimant had been working at the job
site for a few weeks prior to the incident of February 29,
2008, that job site was just one of many field sites
[C]laimant had worked at as a heavy equipment operator
for [Employer] throughout the time he held a job.
Furthermore, during his testimony, Mr. McElhaney
credibly confirmed that the Virginia job was completed
on or around April 20, 2008. As such, even if [C]laimant
had remained on that job up until the completion of the
job, [C]laimant would have only had been working at
that particular Virginia job site for a little over two
months. I do not consider such a job assignment to be an
“extended” job assignment, when considered in the
context of [C]laimant’s entire career as a heavy
equipment operator for [Employer]. Furthermore, even
though [C]laimant had been steadily working at the
Virginia job site for a few weeks prior to the incident of
February 29, 2008, Mr. McElhaney acknowledged during
his testimony that it was possible that [C]laimant could
have been reassigned to another job before the Virginia
job was completed. Accordingly, I am not convinced
that [C]laimant’s work for [E]mployer was exclusively
limited to the Virginia job site for any kind of extended
period of time.
(Id. at 17-18).
Based on the foregoing, the WCJ concluded that Claimant had
sustained his burden of proving that he sustained injuries, including back and neck
injuries, when he fell off of the side of his truck and landed on the ground; that he
had successfully established that he was in the course and scope of his employment
with Employer at the time that he fell off of the truck; that he provided Employer
with proper and timely notice of his accident and injuries; and that he successfully
established that he has been totally disabled from his work injuries from March 1,
2008, onwards. (WCJ 5/31/12 Decision at 23).
8
Employer appealed to the Board claiming, inter alia, that the WCJ
erred in determining that Claimant’s injuries were sustained in the course and
scope of his employment. Citing Foster v. Workmen’s Compensation Appeal
Board (Ritter Brothers, Inc.), 639 A.2d 935 (Pa. Cmwlth.), appeal denied, 652
A.2d 1327 (Pa. 1994),5 Employer argued that Claimant was working at the fixed
location in Virginia based on Hill’s testimony that there was no fixed date for the
project to end so the “coming and going rule” applied and his injuries were not
sustained while in the course and scope of his employment while travelling home
from the worksite.
However, the Board affirmed the WCJ’s decision distinguishing
Foster and relying on Sheckler Contracting v. Workmen’s Compensation Appeal
Board (Yonek), 697 A.2d 1062 (Pa. Cmwlth. 1997) and Roman v. Workmen’s
5
As the Board summarized:
The claimant in Foster was employed as a carpenter for the
employer. The claimant testified that he reported directly to
various job sites as assigned by the employer. At the time of his
injury, however, he was assigned to work at a mall for an indefinite
period of time. He was injured while leaving the mall parking lot,
after completing his work for that day. The Court held that the
claimant’s testimony that he was to report to the same job site
every day for an indefinite period indicated that he had a fixed
place of employment. [Emphasis added]. Thus, the claimant was
not in the course and scope of his employment when he was
injured while commuting from the job site to his home. Indeed,
permanency of the work location appears to be the key component
in determining whether an employee has a fixed place of
employment.
(Board 10/28/14 Opinion at 5-6) (citation omitted).
9
Compensation Appeal Board (Department of Environmental Resources), 616 A.2d
128 (Pa. Cmwlth. 1992):
[W]e believe the facts, as established by Claimant’s
credible testimony, are more in line with the
Commonwealth Court’s decisions in Roman and
Sheckler than Foster. In reaching this determination, we
note several similarities between the facts of this matter
and those of Roman and Sheckler, which seem to place
Claimant squarely in the shoes of a travelling employee.
For example, in Roman and Sheckler, as in this case, the
claimants resided in hotels during the workweek, which
were paid for by the employer, and they returned home to
their residences on the weekends. In Roman, in
particular, there appeared to be no question that under
those circumstances, the claimant was a travelling
employee. In addition, in Sheckler, the claimant was
actually travelling home at the time of his injury, but was
nonetheless found to have been in the course and scope
of his employment when he was injured. In that case, the
Court found it significant that the claimant could have
been asked to report to different worksites after he
returned home. Likewise, here, the WCJ noted Mr.
McElhaney’s acknowledgement that Claimant could have
been asked to work at other sites while the Virginia
project was going on.
(Board 10/28/14 Opinion at 8-9) (footnote omitted).
In this appeal,6, 7 Employer argues that the WCJ erred in determining
that Claimant was a travelling employee who was injured while in the course and
6
In a workers’ compensation proceeding, this Court’s scope of review is limited to
determining whether there has been a violation of constitutional rights, errors of law committed
or a violation of appeal board procedures, and whether necessary findings of fact are supported
by substantial evidence. Lehigh County Vo-Tech School v. Workmen’s Compensation Appeal
(Footnote continued on next page…)
10
scope of his employment. Specifically, Employer argues that Claimant had a fixed
place of employment at the Virginia worksite because the project was to be
completed over an indefinite period of time, and he only worked at that site during
the project so his injuries are not compensable under the “coming and going rule.”
However, contrary to Employer’s assertions, we do not believe that
the WCJ erred in granting the claim petition because Claimant was a travelling
employee of Employer under the Act. In Sheckler, a contractor had a temporary
assignment at an Air Force base and the employer paid for and arranged his
lodging near the base during the week, and provided transportation between the
base and the private residence of the job foreman where they left their personal
vehicles. Sheckler, 697 A.2d at 1063. The employer also paid for the gasoline
(continued…)
Board (Wolfe), 652 A.2d 797, 799 (Pa. Cmwlth. 1995). “Substantial evidence is such relevant
evidence as a reasonable person might accept as adequate to support a conclusion…. In
performing a substantial evidence analysis, this [C]ourt must view the evidence in a light most
favorable to the party who prevailed before the factfinder.” Waldameer Park, Inc. v. Workers’
Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003) (citation
omitted).
7
Following argument, we denied Employer’s application for supersedeas by
Memorandum and Order dated February 6, 2015, explaining:
Contrary to Employer’s assertions, we do not believe that
Employer has made a strong showing that it will likely prevail on
the merits. Based on our review of this action and, in particular,
the facts set forth above, it can reasonably be argued that
substantial evidence supports the determination that Claimant was
a travelling employee and was injured during the course and scope
of his employment.
11
used by the vehicles travelling to and from the worksite. Id. In Roman, the
employee worked as an inspector of various construction sites using an employer-
provided car, and the employer paid for him to stay in a hotel near those sites
during the week, returning home on the weekends. Roman, 616 A.2d at 129-30.
The claimants in Sheckler and Roman were deemed to be travelling employees
because their work took them to temporary placements; the employer paid for the
travel to and from the job sites and for lodging near the job sites; and there was no
indication that the claimants were required to report to their employers’ main
locations before proceeding to their assignments. See Sheckler, 697 A.2d at 1063;
Roman, 616 A.2d at 129-30.
Likewise, in this case, substantial evidence supports the WCJ’s
determination that Claimant was a travelling employee. The evidence
demonstrates that Claimant’s employment took him to temporary placements
throughout the Northeast region; that the Virginia project was not indefinite
because it was scheduled to last for 35 to 40 working days; that Claimant could
have been assigned to another project before the Virginia project was completed;
that Employer reimbursed Claimant for the gasoline used to travel to and from the
worksites; that Employer paid for Claimant’s lodging near the worksites; and that
Claimant was not required to report to Employer’s office in Delmont before
proceeding to the worksites. As a result, the WCJ did not err in granting
Claimant’s claim petition and Employer’s claims to the contrary are without merit.
Sheckler; Roman.8
8
The cases that Employer cites are inapposite. See Beaver and Casey, Inc. v. Workmen’s
Compensation Appeal Board (Soliday), 661 A.2d 40, 43 (Pa. Cmwlth. 1995) (the claimant was a
(Footnote continued on next page…)
12
Accordingly, the Board’s order is affirmed.
__________________________________
DAN PELLEGRINI, President Judge
(continued…)
construction laborer on a pipe crew who traveled unreimbursed directly from his home to the
worksite for an indefinite period until the employer’s sanitary pipe contract was completed);
Foster, 639 A.2d at 571-72 (the claimant was a journeyman carpenter who traveled
unreimbursed directly from his home to the worksite for an indefinite period until the employer’s
contract was completed and he would not report to any other worksites during that period);
Biagini v. Workmen’s Compensation Appeal Board (Merit Contracting Company), 632 A.2d
956, 959-60 (Pa. Cmwlth. 1993), appeal denied, 644 A.2d 1203 (Pa. 1994) (the claimant was a
construction foreman who traveled unreimbursed directly from his home to the worksite and was
allowed, but not required, to use his own truck to haul materials at the worksite for which he
could use the company gasoline credit card and he worked at the same site for four months). See
also Sheckler, 697 A.2d at 1063 (“In Foster, the claimant was required to report directly to a site
every day for an indefinite period of time. Because ‘it was not envisioned that claimant would
report to any other sites…,’ [id.], 639 A.2d at 938, we held the claimant ineligible for benefits
when he was injured travelling from his place of employment.”).
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
McKinney Drilling Company and :
Zurich American Insurance :
Company, :
Petitioners :
:
v. : No. 2105 C.D. 2014
:
Workers’ Compensation Appeal :
Board (Higinbotham), :
Respondent :
ORDER
AND NOW, this 5th day of November, 2015, the order of the
Workers’ Compensation Appeal Board dated October 28, 2014, at No. A12-0859,
is affirmed.
__________________________________
DAN PELLEGRINI, President Judge