A basic tenant of workers’ compensation law is that commuting to and from work is not considered to be within the course and scope of one’s employment. Of course, like most legal principles, the so-called “coming and going rule” does have exceptions. In 1991, the U.S. Supreme Court identified four such exceptions in Peterson v. Workers’ Compensation Appeal Board (PRN Nursing Agency), 597 A.2d 1116 (Pa. 1991). Earlier this month, the Commonwealth Court in Kush v. Workers’ Compensation Appeal Board (Power Contracting), No. 1688 C.D. 2017 waded through a rather convoluted fact pattern to arrive at the simple conclusion that no exception to the coming and going rule existed in the case.
In Peterson, the exceptions to the coming and going rule were identified to be:
- The employment contract includes transportation to and from work;
- The claimant has no fixed place of work;
- The claimant is on a “special assignment or mission” for the employer; or
- Special circumstances are such that the claimant was furthering the business of the employer.
Of course, the facts of each case matter. The coming and going rule and its exceptions must be closely evaluated on a case-by-case basis in order to determine whether a case is compensable. The Kush case, given its many moving parts, provides an excellent opportunity to revisit the issue and remind the practitioner that a case cannot be declined simply because a prospective client tells you that he was injured commuting to or from work.
In Kush, the claimant was employed by Power Contracting Co. and Vantage Corp. as a union electrical worker when he was injured in a motor vehicle accident while driving to work. Consequently, the claimant filed two claim petitions, alleging disability stemming from the accident, given the uncertainty of the identity of his employer at the time of the accident. It was not disputed that Vantage and Power Contracting shared contracts, conducted their operations from the same building and shared employees between the two companies on a regular basis, making the identity of the employer unclear, initially. The two claim petitions were consolidated and the matter was bifurcated to determine the course and scope issue. In the claim petition against Power Contracting, the claimant alleged that he had been injured in the course and scope of his employment since he was employed either as a traveling employee, or, in the alternative, on a special mission for Power Contracting. Neither employer accepted responsibility.
The claimant testified that he had been employed as a union electrical worker for both Power Contracting and Vantage for the three years prior to the accident. His time was spent as an electrical foreman and he managed many different jobs for each employer. In fact, many of the jobs occurred at the same time. Notwithstanding the fact that he managed multiple jobs that both companies were working on simultaneously, the claimant indicated that he was paid separately by each employer. The claimant further testified that he also moved from one job to another fairly regularly and sometimes worked at different job sites on the same day. The claimant summarized the employment relationship for himself and his coworkers by indicating that “everybody just pretty much moved fluidly from company to company.”
Regarding his means of getting to and from work, the claimant testified that Vantage provided him with a company truck, and that he used that truck to travel to jobs for both Vantage and Power Contracting. Vantage also provided him with a credit card for fuel purchases. Usually, the claimant would drive each morning from his home directly to a job site and he typically did not travel to the headquarters of either company. He was required to maintain a detailed travel log, keeping the costs for Vantage and Power Contracting separate. Each company, therefore, was able to pay for only its own fuel and travel costs.
Notwithstanding the elaborate employment relationship among the claimant and two defendants, the claimant testified that he was only working for Power Contracting on the date of the automobile accident at the “Shaler job site.” While he further elaborated that in general he was managing four different jobs for Power Contracting and five jobs for Vantage on the date of the accident, he had been working almost exclusively for Power Contracting for the three weeks prior to the accident, including seven days in a row leading up to it. Finally, the claimant acknowledged that he did not receive compensation for his travel time unless he needed to pick up a piece of equipment on his way to work.
Following the litigation of the bifurcated issue, the workers’ compensation judge (WCJ) issued a decision denying the claimant’s claim petition, finding that no exception to the coming and going existed in the fact pattern. Essentially, the WCJ concluded that the claimant’s injury occurred during his commute to a fixed job location, which is the classic scenario the coming and going rule was designed to preclude. On appeal, the Workers’ Compensation Appeal Board (board) affirmed the WCJ’s decision.
On appeal to the Commonwealth Court, the claimant argued that two different exceptions to the coming and going rule from Peterson applied—namely that his employment agreement with Power Contracting included compensation for transportation to and from work and that he had no fixed place of employment. The court was not convinced by either argument.
Regarding the notion that Power Contracting paid him for time spent traveling to and from work, the court noted that the claimant had to prove his travel allowance was related to the actual expense and time involved in the claimant’s commute and that the employer provided or controlled the means of the commute. Essentially, the court found that the claimant failed to demonstrate either element since the claimant himself testified specifically both that Vantage and not Power Contracting provided the vehicle for his commute and that his wages did not include pay for travel. Moreover, the claimant presented no evidence at all that Power Contracting either provided or controlled the means of his commute. In essence there was no proof that the employment contract included provisions for travel.
As to the argument that the claimant met an exception to the coming and going rule based on the notion that he had “no fixed place of work,” the court similarly rejected it, appealing to Peterson, Foster v. Workers’ Compensation Appeal Board (Ritter Brothers), 639 A.2d 935 (Pa. Commw. 1994), Mansfield Bros. Painting v. Workers’ Compensation Appeal Board (German), 72 A.3d 842 (Pa. Commw. 2013), and an unreported case. Again, the claimant’s own, credible testimony was the basis for the court’s holding that the WCJ and board’s decisions were supported by substantial evidence that the claimant had a fixed job location for purposes of the “coming and going” rule. The claimant testified that he anticipated working only for Power Contracting at the Shaler job site on the day of the accident; moved equipment to the Shaler job site when it began; and that he worked exclusively at the Shaler site for several weeks prior to the accident. Notwithstanding the convoluted fact pattern which offered many different theories of recovery, the bottom line was that on the date of the accident itself, the claimant had a fixed place of employment. The court found one quote in Mansfield Bros. which cut through the entire fact pattern: “the fact that a job has a discrete and limited duration does not make the employee who holds it a traveling employee.”
The claimant’s practitioner would do well to review the three cases mentioned above, dealing with the coming and going rule. As Kush demonstrates, it sometimes takes a while to get to the bottom of a fact pattern and determine whether an exception applies. While the claim in Kush was ultimately proven not to be compensable, a minor tweak of facts in a similar case could warrant the opposite result.
Christian Petrucci, of the Law Offices of Christian Petrucci, concentrates his practice in the areas of workers’ compensation and Social Security disability. He also counsels injured workers in matters involving employment discrimination and unemployment compensation benefits.