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The contract exception to Pennsylvania’s going-and-coming rule applies when an employee dies while driving to work in a company car he specifically demanded before being hired by his employer, the state Supreme Court has ruled in a 4-3 decision. Wachs v. Workers’ Compensation Appeal Board stems from the October 1998 death of James Wachs, who at the time was employed as a supervisor of office equipment technicians at American Office Systems. Wachs, according to the majority’s opinion, had returned to AOS in 1991 after spending several years working for a competitor. An AOS official testified that the only way Wachs could be convinced to return to AOS was if he was given a company car. According to the opinion, he was driving the same company car he was given in 1991 when he died in a car crash roughly seven years later. “Because [Wachs' widow] established by substantial evidence that decedent’s negotiated employment contract included transportation to and from work via a company car, and decedent was killed on his way to work in that car, we affirm the Commonwealth Court’s order granting fatal death benefits to [her],” Justice J. Michael Eakin wrote. Eakin was joined by Chief Justice Ralph J. Cappy and Justices Russell M. Nigro and Max Baer. In so holding, the majority agreed with the conclusion of several Commonwealth Court panels that a 1993 amendment to the Workers’ Compensation Act did not entirely do away with the contract exception to the going-and-coming rule. But in a dissent, Justice Thomas G. Saylor argued that the changes to � 301(c)(1) of the act did just that. “I would conclude that the 1993 amendment to Section 301(c)(1) of the Workers’ Compensation Act abrogated the common law employment contract exception to the going-and-coming rule, and that the rule otherwise applies to the facts of the present case,” Saylor wrote. He was joined in his dissent by Justices Ronald D. Castille and Sandra Schultz Newman. According to Eakin’s opinion, the case began when AOS insurer Donegal Mutual Insurance Co. denied Wachs’ widow’s claim for coverage. Pennsylvania case law has established that an employer is generally not liable for injuries sustained by an employee while he or she is traveling to or from work, Eakin wrote. The workers’ compensation judge hearing the case found that Wachs had not been acting within the course of his employment when he died. It was noted that though for several years he had been a roving technician after being rehired, as a supervisor, his fixed place of employment was AOS’ offices. Ultimately, the WCAB affirmed. “The Commonwealth Court reversed, concluding the WCJ and WCAB overlooked the fact that [Wachs' widow] had adequately proved decedent obtained the company car as part of his employment contract,” Eakin wrote. “Regardless of whether the decedent was traveling to AOS’ office or a client location at the time of the accident, the court opined decedent was acting within the scope of his employment because the employment contract exception to the going-and-coming rule applied.” In a number of decisions, Eakin wrote, both the Commonwealth Court and state Supreme Court have interpreted the Workers’ Compensation Act as permitting claims if one of four exceptions is met — including if “claimant’s employment contract includes transportation to and from work.” The majority rejected the argument that the contract exception is inapplicable in Wachs because at the time of his death, Wachs’ most current contract did not address transportation. “[Wachs' widow] offered unequivocal testimony, accepted by the WCJ as fact-finder, that decedent conditioned his re-employment with AOS with the requirement that he be provided a company car,” Eakin wrote. Eakin then addressed the 1993 amendment to � 301(c)(1), in which language was added barring claims involving injuries incurred while driving company cars “if the employee is not otherwise in the course of employment at the time of injury.” He noted that in its 2001 decision in Rox Coal v. WCAB, the Commonwealth Court dismissed the argument that the 1993 change to � 301(c)(1) eliminated the contract exception to the rule. “The [ Rox Coal] court reasoned the General Assembly’s insertion of the restrictive language reaffirmed what the courts had already recognized and had enforced,” Eakin wrote. But Saylor and his fellow dissenters disagreed. “The amendment’s text contains no indication that proving a common-law exception to the going-and-coming rule may operate effectively to nullify the limitation set forth,” Saylor wrote. “Rather … the wording is absolute in its preclusion of benefits unless the employee is “otherwise” acting in the course of employment.” Claimant’s attorney Charles Bufalino, a West Pittston, Pa., solo practitioner, said the majority’s decision is important because it marks the first time the Supreme Court has addressed the 1993 change to � 301(c)(1). “The Supreme Court has now affirmed what was more or less implied in Rox Coal,” Bufalino said. Terrence Dempsey of Lenahan & Dempsey in Scranton, Pa., who represented AOS and Donegal Mutual, did not immediately respond to calls seeking comment.

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