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The Pennsylvania Supreme Court is set to decide whether amendments made to the Workers’ Compensation Act in 1993 abolished the employment-contract exception to the going-and-coming rule. The going-and-coming rule holds that an injury suffered by an employee on his or her way to or from work is not considered to have occurred within the course and scope of employment and is therefore not compensable. There are, however, four exceptions to the rule: The employment contract includes transportation to and from work. The employee does not have a fixed place of work. The employee is on a special assignment for the employer. Special circumstances exist so that the employee is furthering the employer’s business. In a case the high court recently accepted for allocatur review, Rox Coal Co. v. Workers’ Compensation Appeal Board (Snizaski), the employer is asking the justices to decide the employment-contract exception was eliminated in 1993. The Commonwealth Court held otherwise, concluding the Legislature simply refined the exception. The amendment specified “the course of employment shall not include injuries while the employee is operating a motor vehicle provided by the employer if the employee is not otherwise in the course and scope of employment at the time of injury.” The Commonwealth Court said that statement was not meant to address the going-and-coming exception. The attorneys who filed the petition on behalf of Rox Coal Co., Mark Gordon and Michael A. Cohen of Pietragallo Bosick & Gordon in Pittsburgh, claim the case presents an issue of first impression. The Commonwealth Court said the case was not one of first impression because “this court continues to recognize and apply all four exceptions.” But Gordon and Cohen said in the petition that they see it differently. “Respectfully, the only reason that purported decisions continue ‘to recognize and apply all four exceptions’ to the going/coming rule is because this is the first case where the 1993 amendments have been raised, i.e., this is a case of first impression — and further appellate review is needed to clarify the Legislature’s intent,” the petition says. Attorney Fred C. Jug of Brandt Mines Rea & Wise in Pittsburgh represents the claimant. MOTOR VEHICLE ACCIDENT According to the Commonwealth Court’s opinion, written by Judge Rochelle Friedman, Renee Snizaski’s husband, Randy, who worked in a coal mine for Rox Coal Co., was killed in a motor vehicle accident while he was driving to work in a company-owned car. Snizaski filed a fatal-claim petition alleging she was entitled to benefits under the exceptions to the going-and-coming rule. Rox asserted an affirmative defense before the workers’ compensation judge by arguing that Randy died as a result of his own violation of the law, because he was speeding, failing to control the vehicle and driving outside of the lanes of traffic when he was killed. Rox relied on the police report in making its argument. As a second defense, Rox also claimed Snizaski could not receive benefits because Randy died as a result of the violation of a company policy. The WCJ agreed with Rox’s contentions and found that Snizaski’s claim did not fit into any of the four exceptions, denying her claim. The WCAB reversed on the basis that Snizaski’s claim fit within the first exception and ordered a remand for a recalculation of benefits. Rox appealed to the Commonwealth Court and filed a petition for reconsideration with the WCAB arguing the 1993 amendments to Section 301(c)(1) of the WCA eliminated the employment-contract exception to the going-and-coming rule. The WCAB agreed the amendment eliminated that exception but said that because the issue was not raised before the WCJ and the issue was not appealed to the board, it was waived. The WCAB then said Snizaski satisfied her burden under the fourth exception because Randy’s employment requirement to travel to and from work in the company car constituted a special circumstance. The WCAB denied Rox’s request for reconsideration. On appeal to the Commonwealth Court, Rox argued the WCAB was wrong in finding it waived its right to argue the 1993 amendments. Friedman said the court would ignore that argument in order to give it a chance to clear up any doubt surrounding whether the employment-contract exception is still valid. In its argument, Rox pointed to language from the amendment stating that the course of employment does not include “injuries sustained while the employee is operating a motor vehicle provided by the employer if the employee is not otherwise in the course of employment at the time of the injury.” Rox said that statement was the first time the Legislature asserted that an employee injured in a company-owned vehicle should not automatically be considered to have suffered an injury within the course and scope of his or her employment. Friedman said the court agreed with Rox that the amendment meant benefits could not be given automatically in such a situation, but she said that position was nothing new. In fact, she said, the Commonwealth Court made the same statement in a 1991 case, Unity Auto Parts Inc. v. Workers’ Compensation Appeal Board. Because Rox did not contest that transportation to and from work was part of Randy’s contract, Friedman said Snizaski met her burden of proof. The court also concluded that the police accident report was not competent evidence to support Rox’s affirmative defenses. It only allowed the portion of the report that confirmed the time of the accident to be admitted. “With its argument, [Rox] attempts to inject fault and simple negligence into workers’ compensation proceedings; however, the act clearly does not recognize negligence as a defense,” Friedman wrote. “For this reason we similarly conclude that [Rox] has failed to establish any violation of company policy that would preclude [Snizaski's] right to recovery.” The accident report, without corroborating evidence, was also not enough to support a finding that Randy committed a violation of law or company policy, the court said. PETITION Gordon and Cohen argue the Commonwealth Court’s decision ignored legislative intent. The focus of the lower court’s opinion should have been on the language the Legislature used in the amendments, the attorneys said. “The Legislature did not differentiate between an employer-provided vehicle by contract versus a vehicle voluntarily provided,” the petition says. “Essentially, the only way to give meaning to the 1993 amendment to Section 301 (c)(1) of the act is to recognize that the key question at the time of an accident going to/ from work is whether the claimant was otherwise in the course of employment at the time of injury; the focus is no longer on how the vehicle came to be provided to the employee.” As the WCJ found in his findings of fact, Randy was not a traveling employee at the time he was killed. The testimony showed that he was “simply traveling to work at a regularly scheduled time” when the accident happened. The WCJ rejected Snizaski’s testimony that the employer had asked Randy to come into work early on the date of the accident, Gordon and Cohen said. Gordon and Cohen also took a stand against the WCAB’s position that an employee who is on call 24 hours per day is always in the course of employment. They said that holding “disregards the 1993 amendment that an employee must still prove he was otherwise in the course of employment at the time of injury.” Turning to the issue of the accident report, the attorneys said the lower decision means an employer has the burden of authenticating a claimant’s evidence despite the fact that the burden of proof lies on the claimant in a claim proceeding. Gordon and Cohen said the issue was especially important to their case because Rox Coal presented evidence that company policy required employees to obey traffic laws. The report, they said, contained evidence that the decedent broke several driving safety laws and should have been admitted in its entirety.

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