J. Peters v. WCAB (Cintas Corp.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan Peters, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Cintas Corporation), : No. 1835 C.D. 2017
Respondent : Argued: March 13, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY1 FILED: July 18, 2019
Jonathan Peters (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) November 16, 2017 order
affirming the WC Judge’s (WCJ) decision dismissing his Claim Petition. The issue
before this Court is whether the Board erred in determining that Claimant was not in
the course and scope of his employment when his injury occurred.2 After review, we
affirm.
1
This matter was reassigned to the author on June 4, 2019.
2
In his Statement of Questions Involved, Claimant presents three issues: (1) whether the
Board erred by failing to apply the applicable legal standard for a traveling employee; (2) whether
the Board abused its discretion by differentiating between mandatory and non-mandatory work
functions; and (3) whether the Board erred or abused its discretion by determining that Claimant
was not in the course and scope of his employment. See Claimant Br. at 4. Because Claimant’s
first and second issues are subsumed in this Court’s analysis of the third issue, they have been
combined therein.
Cintas Corporation (Employer) employed Claimant as a uniform sales
representative. Claimant’s home branch was located in Allentown, although
Claimant would also work from home as necessary. Claimant’s job duties entailed
cold calling potential prospects, scheduling appointments, meeting with contacts to
present the products, and eventually closing the sale and negotiating the contracts.
His workweek included some time in the office on Monday mornings, Tuesdays, and
Wednesday mornings to set the appointments, and in the field the remainder of the
week.
On February 27, 2015, a full sales day, Claimant was in the northern
portion of his territory which included Pottsville, Orwigsburg, and Tower City. After
his last appointment that day he drove to Allentown to attend a celebration with co-
workers at the Tilted Kilt. On the way, Claimant passed the exit for his home and
continued to drive to the Tilted Kilt. It is disputed how long Claimant stayed at the
Tilted Kilt. While driving home, Claimant was involved in a motor vehicle accident
from which he sustained multiple injuries.
On December 29, 2015, Claimant filed the Claim Petition seeking
payment of partial disability benefits from February 28 to April 2, 2015 and total
disability as of April 3, 2015. Employer filed an Answer denying the material
averments. The WCJ held hearings on February 10 and April 1, 2016. On November
1, 2016, the WCJ denied and dismissed the Claim Petition concluding that Claimant
failed to meet his burden of proving that he was in the course and scope of
employment at the time of his motor vehicle accident. Claimant appealed to the
Board. On November 16, 2017, the Board affirmed the WCJ’s decision. Claimant
appealed to this Court.3
“On review[,] this Court must determine whether constitutional rights were violated, errors
3
of law were committed, or necessary findings of fact were supported by substantial competent
2
Claimant argues that he was in the course and scope of employment at
the time of the accident because he was a traveling employee on his way home from a
work-sponsored event in a work van. Employer responds that because Claimant
made a clear departure from his employment, Claimant was not in the course and
scope of employment, as a matter of law, at the time of the motor vehicle accident.
Specifically, Employer contends that the WCJ’s findings of fact clearly establish that
Claimant’s actions were so removed from his employment as to constitute
abandonment.
Initially, “[w]hether an employee is acting within the course of his
employment is a legal determination to be made based upon the WCJ’s findings of
fact.” Ace Wire Spring & Form Co. v. Workers’ Comp. Appeal Bd. (Walshesky), 93
A.3d 923, 931 (Pa. Cmwlth. 2014).
Further,
[t]his Court has analyzed course of employment cases in
two ways, depending on whether the claimant is a traveling
or stationary employee. What constitutes ‘scope and course
of employment’ is broader for traveling employees than for
stationary employees, and it includes driving to any
appointment for the employer. Whether a claimant is a
traveling employee is determined on a case by case basis,
and the Court must 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.
Rana v. Workers’ Comp. Appeal Bd. (Asha Corp.), 170 A.3d 1279, 1284 (Pa.
Cmwlth. 2017) (citations omitted). When an employee is determined to be a
traveling employee, he is entitled to a presumption that he is in the course and scope
of employment when he is traveling to or from work. See id. “To rebut this
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
3
presumption, [an e]mployer ha[s] to establish [employee’s] actions at the time of the
accident were ‘so foreign to and removed from’ his usual employment that those
actions constituted abandonment of employment.” Id. at 1285 (quoting Holler v.
Workers’ Comp. Appeal Bd. (Tri Wire Eng’g Solutions, Inc.), 104 A.3d 68, 71 (Pa.
Cmwlth. 2014)). The issue herein is whether Employer rebutted the presumption that
as a traveling employee who set out to work in the morning, Claimant’s injury
occurred while in the course and scope of his employment.
We begin our analysis with a review of cases involving the traveling
employee presumption. In 1966, the Pennsylvania Superior Court decided Maher v.
Hallmark Cards, Inc., 218 A.2d 593 (Pa. Super. 1966). In Maher, the decedent, a
traveling employee, stopped at a hotel for drinks with co-workers after finishing the
employer’s business and was in an accident on his way home therefrom. The Maher
Court ruled that the traveling employee presumption applied, the employer did not
rebut the presumption, and the decedent’s spouse was entitled to benefits.4
Thereafter, this Court held in Oakes v. Workmen’s Compensation Appeal
Board (Pennsylvania Electric Co.), 469 A.2d 723 (Pa. Cmwlth. 1984): “[T]he
established principal (sic) that one who is employed to travel and who is provided
with transportation in order to carry out such duty has a scope of employment that is
‘necessarily broader than that of an ordinary employee, and is to be liberally
construed to effectuate the purposes of the [WC] Act.[5]’” Oakes, 469 A.2d at 725
(quoting Aluminum Co. of Am. v. Workmen’s Comp. Appeal Bd. (Lindsay), 380 A.2d
941 (Pa. Cmwlth. 1977)).
4
Notably, Maher involved a fatality and, as set forth in Oakes v. Workmen’s Compensation
Appeal Board (Pennsylvania Electric Co.), 469 A.2d 723 (Pa. Cmwlth. 1984), the liberality of the
reading of the Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S.
§§ 1-1066, goes to the claimant, i.e., the widow, not the decedent.
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
4
An examination of the underlying facts in each case reveals the rationale
behind the traveling employee presumption. In Maher, the claimant’s decedent was
working in Downingtown, Pennsylvania, and went across the street from the news
agency wherein he was assisting other salesmen in setting up a greeting card display,
to a hotel for drinks after his work was completed. The accident occurred in
Downingtown, on his way home to Philadelphia. Clearly, the decedent had not left
his work location of Downingtown at the time of the accident. Similarly, in Oakes,
the claimant’s decedent had been working in Meadville, Pennsylvania, approximately
13.3 miles from his home. The decedent stopped numerous places after his work was
completed. However, all of the places he stopped were in Meadville. The accident
happened while the decedent was traveling home from Meadville. Thus, because the
decedents in Maher and Oakes were not in the vicinity of their homes when they
stopped after the end of their workdays, “[t]he homeward trip was a necessary part of
the[ir] business excursion[s].” Oakes, 469 A.2d at 726 (emphasis omitted) (quoting
Maher, 218 A.2d at 596). As has been recognized, traveling employees do not have
“the option of avoiding” the hazards of traveling homeward. Ball-Foster Glass
Container Co. v. Giovanelli, 177 P.3d 692, 697 (Wash. 2008) (emphasis added).
Indeed, as this Court in Roman v. Workmen’s Compensation Appeal
Board (Department of Environmental Resources), 616 A.2d 128, 130 (Pa. Cmwlth.
1992), expounded: “[T]emporary departures from the work routine for the purpose of
administering to the comforts of an off-the-premises employee . . . will not interrupt
the continuity of the employee’s course of employment.” Id. at 130-31 (emphasis
added) (quoting Port Auth. of Allegheny Cty. v. Workmen’s Comp. Appeal Bd.
(Stevens), 452 A.2d 902 (Pa. Cmwlth. 1982)).
In Roman, the claimant worked as an inspector, which required him to
travel to various construction sites. After finishing an inspection, the claimant was
5
injured in a motor vehicle accident. The claimant testified that at the time of the
accident he was on his way to check in to a hotel in Wilkes-Barre, Pennsylvania. The
employer presented contrary evidence to show that when the accident occurred the
claimant was en route to meet his girlfriend. The referee found that comparable
hotels were available closer to the construction sites, but the claimant chose to stay in
Wilkes-Barre so he could visit his girlfriend. The referee also found that the claimant
was not required to check in to the hotel midday, which is when the accident
occurred. As a result, the referee concluded the claimant was not within the course
and scope of his employment at the time of the accident, and the Board affirmed.
This Court reversed, reaffirming the legal principle that as a traveling employee who
was injured after setting out on his employer’s business, the claimant was entitled to a
presumption that he was within the course and scope of his employment. The Roman
Court explained that the claimant was required to stay in a hotel in the vicinity of the
construction sites during the workweek and return to his home in York, Pennsylvania,
on the weekend. Because the claimant was working in the Scranton/Wilkes-Barre
area and the accident occurred within five minutes of the Wilkes-Barre work site, the
Court ruled that he was in the course and scope of his employment when traveling
from the work site.
Contrary to the above cases, Claimant in the instant case left his work
vicinity, passed his home, attended happy hour at the Tilted Kilt and was involved in
an accident on his way home from happy hour. Importantly, when the decedent in
Maher left the Downingtown hotel, he had not left his work location of
Downingtown. Similarly, in Oakes, the decedent’s accident happened while the
decedent was traveling home from his work location of Meadville. Finally, in
Roman, the claimant was required to stay in a hotel in the vicinity of the construction
sites during the workweek and the accident occurred within five minutes of the work
6
site. Here, not only was Claimant in the vicinity of his home, he chose to pass his
home to attend the happy hour, after which the accident occurred.
In examining the traveling employee presumption, it is clear the
claimants in Maher and Oakes were granted benefits because “[t]he homeward trip
was a necessary part of the business excursion.” Oakes, 469 A.2d at 726 (quoting
Maher, 218 A.2d at 596 (emphasis added)). Moreover, “[t]he rule recognizes that a
traveling employee is subjected to hazards [the employee] would otherwise have the
option of avoiding, and as a result, the hazards of travel become the hazards of the
employment.” Ball-Foster, 177 P.3d at 697 (emphasis added; quotation marks
omitted).
In the instant case, “[t]he homeward trip” had ended before Claimant
traveled to the Tilted Kilt. Oakes, 469 A.2d at 726 (emphasis omitted) (quoting
Maher, 218 A.2d at 596). Claimant clearly had the option of avoiding any hazards
simply by choosing to take the exit home as opposed to bypassing his exit to attend
happy hour. Under the circumstances, Claimant’s travel from the Tilted Kilt to his
home cannot be considered in the course and scope of his employment. Accordingly,
this Court holds that “based upon the WCJ’s findings of fact,” Claimant was not in
the course and scope of his employment at the time of his motor vehicle accident.
Walshesky.
Claimant further contends that because the gathering at the Tilted Kilt
was a work-sponsored event, he remained in the course and scope of his employment
when he traveled thereto. However, the WCJ, as fact finder, determined that the
meeting at the Tilted Kilt was not furthering the interests of Employer, but rather was
a social gathering. The law is well established that “[t]he WCJ is the ultimate
factfinder and has exclusive province over questions of credibility and evidentiary
weight.” Univ. of Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8
7
(Pa. Cmwlth. 2011). “The WCJ, therefore, is free to accept or reject, in whole or in
part, the testimony of any witness[.]” Griffiths v. Workers’ Comp. Appeal Bd. (Red
Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000).
Here, the WCJ expressly declared:
[T]his [WCJ] credits, in part, and rejects, in part, the
representations of [] Claimant as to the events of February
27, 2015 and their work-relatedness. This [WCJ] had the
opportunity to review the bearing and demeanor of []
Claimant, and while it is unfortunate Claimant was involved
in a motor vehicle accident on February 27, 2015, his
representations that the event was, in his mind,
mandatory at the Tilted Kilt that evening is rejected in
light of the more credible testimony of his colleagues.
WCJ Dec. at 8 (emphasis added).
To accept Claimant’s argument would require this Court to reverse the
WCJ’s credibility determination that Claimant was not required to attend happy hour.
The law expressly prohibits an appellate court from taking such action. See Jacobs v.
Unemployment Comp. Bd. of Review (Bridgeview Partners), 137 A.3d 1260 (Pa.
2016). Because Claimant had already completed his homeward travel before
attending happy hour, Claimant was outside the scope of his employment when the
injury occurred. Accordingly, substantial evidence supports the WCJ’s findings of
fact, and the facts support the conclusion that Employer rebutted the presumption.
For all of the above reasons, the Board’s order is affirmed.
__________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan Peters, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Cintas Corporation), : No. 1835 C.D. 2017
Respondent :
ORDER
AND NOW, this 18th day of July, 2019, the Workers’ Compensation
Appeal Board’s November 16, 2017 order is affirmed.
__________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan Peters, :
Petitioner :
:
v. : No. 1835 C.D. 2017
: Argued: March 13, 2019
Workers’ Compensation Appeal :
Board (Cintas Corporation), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
DISSENTING OPINION BY
JUDGE COHN JUBELIRER FILED: July 18, 2019
The course of employment for traveling employees is necessarily broad.
Roman v. Workmen’s Comp. Appeal Bd. (Dep’t of Envtl. Res.), 616 A.2d 128, 130
(Pa. Cmwlth. 1992). Once a traveling employee sets off on the employer’s business,
there is a presumption that the employee is furthering the employer’s interest. Id.To find a traveling employee is outside of the course of employment, the employer
must show the employee’s “actions were so foreign to and removed from his usual
employment that they constitute an abandonment of that employment.” Id.(emphasis added). Here, Jonathan Peters (Claimant), a traveling salesperson, was
injured in a motor vehicle accident after attending what the Majority labels as a
“happy hour,” a characterization not found in either the Decision of the Workers’
Compensation Judge (WCJ) or the Opinion or Order of the Workers’ Compensation
Appeal Board (Board). Importantly, (1) Claimant’s employer, Cintas Corporation
(Employer), invited him to the social event; (2) Employer organized and paid for the
social event; (3) Employer regularly held a social event during sales blitzes; and (4)
the social event occurred at the end of Claimant’s workday. Given these facts, I
cannot conclude that, in attending this employer-sponsored social event, Claimant’s
“actions were so foreign to and removed from his usual employment that they
constitute an abandonment of that employment,” which is the standard for traveling
employees. Id. Accordingly, I would reverse the Board’s Order, which affirmed the
Decision of the WCJ, and remand the matter for further proceedings related to the
medical component of the Claim Petition.
To be entitled to benefits, claimants must show they suffered a work-related
injury under Section 301(c)(1) of the Workers’ Compensation Act (Act).1 An injury
is compensable only if a claimant proves that the injury occurred in the course of
employment and was related thereto. O’Rourke v. Workers’ Comp. Appeal Bd.
(Gartland), 125 A.3d 1184, 1189 (Pa. 2015). Whether employees’ injuries occurred
in the course of their “employment is a question of law to be determined” based upon
the WCJ’s findings of fact. PPL v. Workers’ Comp. Appeal Bd. (Kloss), 92 A.3d
1276, 1283 (Pa. Cmwlth. 2014). “What constitutes scope and course of
employment” varies “depending on whether the claimant is a traveling employee or
a stationary” one. Jamison v. Workers’ Comp. Appeal Bd. (Gallagher Home Health
Servs.), 955 A.2d 494, 498 (Pa. Cmwlth. 2008). Given the remedial nature of the
Act, “[t]he course of employment is necessarily broader for traveling employees.”
Roman, 616 A.2d at 130.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
RCJ-2
The different treatment of traveling employees, as compared to stationary
ones, is longstanding and not unique to Pennsylvania. Also known as the continuous
coverage rule, or the commercial traveler rule, the traveling employee rule is the
“prevailing” or “the majority view among jurisdictions throughout the United
States.” Ball-Foster Glass Container Co. v. Giovanelli, 177 P.3d 692, 696 (Wash.
2008); Buczynski v. Indus. Comm’n of Utah, 934 P.2d 1169, 1172-73 (Utah 1997)
(summarizing cases across the country). The rationale behind the doctrine has been
explained as follows: “[w]hen the travel is essentially part of the employment, the
risk [of injury during activities necessitated by travel] remains an incident to the
employment even though the employe[e] may not actually be working at the time of
the injury.” Buczynski, 934 P.2d at 1174 (quoting State Accident Ins. Fund Corp. v.
Reel, 735 P.2d 364, 367 (Or. 1987)) (alterations in original) (emphasis omitted).
Stated another way, “[t]he rule recognizes that a traveling employee is subjected to
hazards [the employee] would otherwise have the option of avoiding,” and as a
result, “the hazards of travel become the hazards of the employment.” Ball-Foster,
177 P.3d at 697 (internal quotation omitted).
In Pennsylvania, this Court has formulated the traveling employee rule as
follows:
When a traveling employee is injured after setting out on the business
of his employer, it is presumed that he was furthering the
employer’s business at the time of the injury . . . . The employer
bears the burden of rebutting this presumption . . . . To meet its
burden, the employer must prove that the claimant’s actions were so
foreign to and removed from his usual employment that they constitute
an abandonment of that employment.
Roman, 616 A.2d at 130 (emphasis added).
RCJ-3
Here, there is no dispute that Claimant was a traveling employee. There is
also no dispute that Claimant set out on the business of Employer that morning when
he went to his appointments and had been performing work on Employer’s behalf
all day. This is sufficient to give rise to the presumption that Claimant was acting
within the course and scope of his employment at the time he was injured, which
occurred later that same day. Therefore, the burden shifts to Employer to rebut this
presumption by showing that Claimant’s “actions were so foreign to and removed
from his usual employment that” he abandoned it. Id. (emphasis added). We have
held that to constitute abandonment, a break in employment “must . . . be of a
pronounced nature.” Universal Cyclops Steel Corp. v. Workmen’s Comp. Appeal
Bd. (Krawczynski), 305 A.2d 757, 764 (Pa. Cmwlth. 1973) (emphasis added). “To
be denied compensation, an employee must have ‘virtually abandoned the course
of his employment, or . . . at the time of the accident, [be] engaged in something
wholly foreign thereto.’” Pfizer, Inc. v. Workmen’s Comp. Appeal Bd. (Gresham),
568 A.2d 286, 290 (Pa. Cmwlth. 1989) (quoting Capitol Int’l Airways, Inc. v.
Workmen’s Comp. Appeal Bd., 428 A.2d 295, 297 (Pa. Cmwlth. 1981)) (first
emphasis added).
The Majority concludes that by passing the normal highway exit for his home
and attending the non-mandatory event at the Tilted Kilt, Claimant “abandoned” his
employment. Based upon our precedent involving traveling employees, I do not
believe these facts legally constitute abandonment. The courts have found traveling
employees were furthering the interests of their employers in situations where the
claimants’ actions were more of a personal nature than Claimant’s actions here. For
instance, in Maher v. Hallmark Cards, Inc., 218 A.2d 593 (Pa. Super. 1966), benefits
were awarded to the survivors of a traveling salesman who was killed in a motor
RCJ-4
vehicle accident. The decedent had been assisting other salesmen with setting up a
greeting card display. After the work was completed around 7:45 p.m., the decedent
and his colleagues went to a hotel across the street where they drank beer and talked
business. At about midnight, after decedent had imbibed four to six bottles of beer,
he left and was killed in an accident one hour later. The referee2 concluded the
decedent was in the course of his employment because he was returning from a job
at the time of the accident and awarded benefits. The Board affirmed. On appeal,
the employer argued the decedent was not in the course or scope of his employment
because he voluntarily assisted the salesmen while outside of his own sales territory,
and the decedent had deviated from his employment since he was at a place where
his presence was not required and a number of hours elapsed from the time the work
was completed to when the accident occurred. The Superior Court affirmed the
award of benefits, also concluding the decedent was in the course and scope of his
employment at the time. Id. at 595. It explained that “[t]he course of employment
of an outside salesman is necessarily broader than that of an on the premises
employe[e].” Id. It further explained that “a break in the course of employment
must be of a pronounced character,” and slight deviations do not remove the
employee from the course of employment. Id. at 596. The Superior Court concluded
the stop at the hotel was not a deviation. Id.
In Oakes v. Workmen’s Compensation Appeal Board (Pennsylvania Electric
Co.), 469 A.2d 723 (Pa. Cmwlth. 1984), this Court reversed a Board order that
denied benefits to the claimant. There, a foreman was killed on his way home from
working on a power outage for the employer. Seven hours elapsed between the time
he completed working on the power outage and the accident. During this time, the
2
WCJs were previously referred to as referees.
RCJ-5
decedent shopped for building materials needed for an addition he was constructing
at his home. He also stopped at various bars throughout the day. The claimant was
subject to recall, but there was no evidence he was called back in during this time.
The referee found the decedent engaged in personal business for nearly seven hours
after his workday completed and concluded the decedent was not engaged in the
furtherance of the employer’s business. The Board affirmed, but we reversed.
Citing Maher, we held the decedent was “killed in completing the employer’s task
on which he had embarked earlier in the day” and “the homeward trip was a
necessary part of his employment.” Id. at 726.
Here, Claimant attended the employer-sponsored social event at the Tilted
Kilt immediately following his last sales appointment. Employer paid for appetizers
and drinks. Whether Claimant voluntarily attended the event does not sever the ties
to Employer. Nor does the fact that the event’s purpose was more social than
business related. In Maher, the decedent’s actions were purely personal. The fact
remains that Claimant, at Employer’s invitation, attended the event, which was
organized and paid for by Employer, at the end of his workday, and Employer
acknowledged holding similar events on other occasions.
Similarly, the WCJ’s finding that Claimant was not required to attend the
event does not remove Claimant from the realm of a traveling employee. The WCJ
and Board both relied upon cases, although involving social events, where the
claimants were not traveling employees, to conclude Claimant was not eligible for
benefits. Canning v. Workers’ Compensation Appeal Board (Pennsylvania Senate)
(Pa. Cmwlth., No. 985 C.D. 2014, filed January 9, 2015); Brown v. Workmen’s
Compensation Appeal Board (Liken Employment Nursing Services), 588 A.2d 1014RCJ-6
(Pa. Cmwlth. 1991). Therefore, a different analytic framework applied, and neither
case is controlling here.
This case is more akin to Investors Diversified Services v. Workmen’s
Compensation Appeal Board (Howar), 520 A.2d 958 (Pa. Cmwlth. 1987), where we
applied the traveling employee presumption to a claimant attending a social event
hosted by the employer. There, the claimant worked as a traveling insurance and
investment representative and was injured returning from a holiday party hosted by
the divisional sales manager. The referee and Board awarded benefits. The
employer argued the claimant was not furthering the employer’s interest because the
holiday party was purely social, and the claimant broke any ties to his employment
by taking a woman on a ride in his new vehicle before leaving the party. We held
attending the party fostered camaraderie, even if attendance was not required. Id. at
960-61. We also found that the claimant’s conduct in taking the woman for a ride
in his new vehicle was not sufficient to constitute abandonment of his employment.
Id. at 961. Citing Maher and Macke Vending Co. v. Abrams, 365 A.2d 451 (Pa.
Cmwlth. 1976), in which we awarded death benefits to the family of an employee
killed on his way home after attending a work meeting and visiting with his friends
for several hours, we held in Investors Diversified Services that, “as a matter of
law,” we could not conclude “the claimant’s deviation from the course of his
employment was so pronounced in character as to” disqualify him from receiving
benefits. Investors Diversified Servs., 520 A.2d at 961 (emphasis added).
Claimant’s actions here are similar to those of the claimant in Investors
Diversified Services. The WCJ found that attendance at the Tilted Kilt was not
mandatory, and we are bound by the WCJ’s fact finding, Williams v. Workers’
Compensation Appeal Board (USX Corp.-Fairless Works), 862 A.2d 137, 143 (Pa.
RCJ-7
Cmwlth. 2004). However, whether Claimant was in the course of his employment
and furthering the interest of Employer is a question of law, as is whether Claimant
abandoned his employment, and we are not bound by the WCJ’s or Board’s legal
conclusions. Kloss, 92 A.3d at 1283; Investors Diversified Servs., 520 A.2d at 960-
61. Contrary to the Majority’s view, it is not necessary to disturb the WCJ’s finding
that attendance at the Tilted Kilt event was voluntary to determine that Claimant did
not abandon his employment by attending the event. Just because attendance was
not required does not mean the event was not work-related. There is no dispute that
Sales Manager invited Claimant and other salespersons to the Tilted Kilt during the
sales blitz, similar to other events Sales Manager has organized during past blitzes.
Employer paid for the drinks and appetizers. While Claimant may have driven past
the highway exit for his home in order to attend the event, he did so immediately at
the end of his sales calls. Based on our precedent, I cannot conclude, as a matter of
law, that driving by one’s exit home on a highway to attend an event organized and
paid for by one’s employer is of such a “pronounced nature” to constitute
abandonment of one’s employment or is “wholly foreign” to one’s employment.
Universal Cyclops, 305 A.2d at 764 (citation omitted) (emphasis added); see also
Pfizer, Inc., 568 A.2d at 290. Presumably, had Claimant’s home been located on the
other side of the Tilted Kilt, or his travels taken him back to town in a different
direction, the Majority would not have found that he abandoned his employment.
This is a difficult case, but given our precedent, the humanitarian purpose of
the Act, and the policy behind the traveling employee rule, I would conclude that
Claimant’s actions did not constitute abandonment of his employment. I recognize
that it may seem unfair that traveling employees are treated differently than
stationary ones. However, that is not remedied by determining a traveling
RCJ-8
employee’s eligibility for benefits based upon the location of his home, and whether
he passed his exit on the highway on his way to attend a social event organized and
sponsored by Employer. For these reasons, I would reverse the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
President Judge Leavitt joins in this dissenting opinion.
RCJ-9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan Peters, :
:
Petitioner :
:
v. : No. 1835 C.D. 2017
: Argued: March 13, 2019
Workers' Compensation Appeal :
Board (Cintas Corporation), :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
CONCURRING OPINION
BY JUDGE WOJCIK FILED: July 18, 2019
I concur in the result reached by the Majority, but I disagree with its
analysis insofar as it emphasizes the location of the activity instead of whether the
activity was employment-related. The workers’ compensation judge (WCJ) found
as fact that the event at the Tilted Kilt was voluntary, and I would affirm on that
basis. Whether the event was held at a location before or after the employee’s
customary highway exit is neither dispositive, nor relevant, to whether the
employee’s attendance was required or encouraged, or whether the activity was
work-related or in furtherance of the employer’s business interests. If the WCJ had
found the event to be of a different character, its location would be entirely
irrelevant. The WCJ, however, plainly found that the event was voluntary and not
work-related. The analysis should end here.
Thus, I agree that while the claimant may be a travelling employee, he
was not a travelling employee at the time of his injury. I would affirm on the bases
enunciated by the WCJ, and affirmed by the Board, all of which are supported by
substantial evidence.
MICHAEL H. WOJCIK, Judge
MHW - 2