Williams v. Workers' Compensation Appeal Board

A97-1680, out set at least April one the criteria set out dated No. is vacated in these modifying Compensation cases as a basis and the Workers’ Judge’s or- specific WCJ’s granting determination. der 140 weeks of loss bene- fits is reinstated. 306(c)(22) Initially, we note that Section (Act),3

the Workers’ pro- Act permanent vides that disfig- for serious and J., DOYLE, dissents. head, face, urement of the neck or produces unsightly appearance and which usually

is not employment, incident to the compensation awarded shall not exceed Moreover, Supreme weeks. Court

Hastings explained that the translation

disfigurement compensation monetary into legal

both a question and a factual that is

reviewable the Board its own view of City the claimant. See also Phila- delphia, Management Risk Div. v. Work- WILLIAMS, Petitioner, J. Gerard (Har- Compensation Appeal men’s (Pa.Cmwlth.1997). vey), 690 A.2d 1293 As court, Harvey did the quote Supreme APPEAL COMPENSATION WORKERS’ holding Hastings Court’s as follows: (MATCO BOARD ELECTRIC COMPA- concludes, viewing [I]f WCAB NY, INC. Northern Insurance Com- disfigurement, of a claimant’s ref- Respondents. pany), capriciously disregarded competent eree by entering significant- evidence an award Pennsylvania. Commonwealth Court of ly range outside the most referees would Argued select, Feb. 1998. may modify the WCAB the award may justice require. Decided Dec. Id. at 611 A.2d at 1190. holding Hastings

We understand the

require the Board to set forth reasons for

its modification of a in a facial WCJ’s award

disfigurement explain case. The Board must capriciously

at a minimum that the WCJ competent

disregarded awarding evidence significantly

a number of weeks outside the

range compensation judges most workers justice required

would select Indicating

modification. the WCJ’s

award excessive without more insuffi-

cient.

Accordingly, we vacate Board’s order

and reinstate the WCJ’s order as modified repre- that the award of 140

indicate weeks loss, specific

sents award for total

disability benefits.

ORDER

Now, 13, 1998, the order of the November Board, Compensation Appeal

Workers’ 2, 1915, amended, 513(22). § of June P.S.

3. Act P.L. Scranton, Holmes, petition-

Thomas M. er. Scranton, Schoen, respondent.

Alan P. COLINS, Judge, and President Before PELLEGRINI, J., SMITH, J., DOYLE, J., J., FLAHERTY, KELLEY, J., LEADBETTER, J.

LEADBETTER, Judge. Williams,

Claimant, appeals J. Gerard Compensation Ap the order Workers’ (Board) Com peal under the Workers’ (the Act).1 present pensation Act The issue injuries, claimant’s appeal ed on whether work, driving he was which occurred while “coming and fall within case heard en going” rule.2 We ordered this address inconsistencies banc so that we could Compensation v. Workmen’s between Kear Co.), (Fairman Drilling 102 Pa. Appeal Bd. (Pa.Cmwlth.1986) 193, 586 517 A.2d court, published opinions other Corp. v. Work particularly Bechtel Power (Postleth Compensation Appeal Bd. men’s 544, wait), A.2d 1266 Pa.Cmwlth. 648 167 denied, 585, (Pa.Cmwlth.1994), 540 Pa. alloc. (1995), and Peer v. Workmen’s 655 Constr.), (B W Compensation Appeal Bd. & (Pa. 540, 1096 94 503 A.2d Pa.Cmwlth. Cmwlth.1986). review, specifically After Bechtel and the consistent Peer and reaffirm court, prior in this and overrule line cases Rear. was em- reflects that claimant

The record (Mateo) Company ployed Mateo Electric project on a as electrician Pennsylvania. The County, Sayre, Bradford ninety- Sayre approximately site in home, from claimant’s five miles at the site to work required to made the a.m. Claimant everyday at 7:00 736, amended, 2, 1915, being Biddle 77 in the course P.L. 1. Act of June (Thomas - 1041.4, Compensation Appeal Bd. §§ Workmen's 1 2501-2626. P.S. Sons, Inc.), 652 A.2d 539 Pa. &Mekis (1995); Corp. v. Work BechtelPower 808-09 going” rule refers to (Postlethwait), Appeal Bd. by an men's principle general received (Pa.Cmwlth.1994), 1271 are and from work denied, Pa. 655 c. the em al compensable the Act because lo (1995). ployee is considered the time daily basis, board, necessary commute driving portation, ex- either penses. pooling brother-in-law’s truck or car employees.

other travelling time shall be Section 17 No before after hours Claimant had obtained the with Mateo any job travelling to or from workmen for as a result of a referral from jurisdiction in the Union where office Local Union 81 of the International report job. ordered to on the workmen are Workers, Brotherhood of Electrical of which N.T. of Claimant’s Exhibit No. March rules, he awas member. Pursuant union agreement also allowed Mateo to 1993. claimant was required job job transfer from site to site eligible remain for future referrals. union jurisdiction the union. jurisdiction encompasses of the union. approximately for Mateo Claimant worked eight Pennsylvania, counties in Northeastern four weeks until he had an automobile acci- including Bradford. collective applicable commuting while to work on dent March bargaining agreement, “In- referred as the jto time, 1992. At that he lost control of the Agreement,”3 provided side that claimant driving, truck he was and sustained crashed specific would receive a rate if hour|y injuries, partially paralyzed. left him designated worked within the territory as Thereafter, petition a claim claimant filed A, per zone and an additional 49 cents if hour seeking under the Act. denied benefits Mateo Sayre he worked outside zone A in zone B.4 eventually petition and the matter was and, B therefore, was located zone claim- Compensation Judge heard a Workers’ hour, ant received the additional 49 cents (WCJ), granted who benefits. The day.5 or an additional reversed, appealed to court. and claimant this for neither the time nor ex- employee acting Whether an penses commuting! he incurred to and from within the course of his at the respect ¡expenses work. With and injury legal question, of an is a deter time agreement transportation, provided: on mined the basis of the WCJ’s factual Section 9 no When the has findings, subject plenary to this court’s permanent jurisdiction shop located in the review. Compensa Olszewski Workmen’s ¡such Union, Chevrolet), of the (Royal then under circum- tion 167 Pa. (Pa. stances Scranton shall the Cmwlth. be considered Cmwlth.1994). Generally, city shop under the in which the is located.6 rule, going” sustained an commuting to and work while from pay for Section 16 The shall compensable are not under the Act. Id. This traveling time and furnish premised recognition on rule that an shop job, job to job, from employee traveling usually to or from work is jurisdiction shop, within the of the Union. premises, neither nor en jurisdiction On of the gaged work outside the furtherance of the Union, shall furnish trans- business. There 1098.7 Although given apprentices party 3. Mateo is not a ence was who in the resided agreement, agree applica- it did to its labor market where the work site was located. apprentice sites at Mateo work within union’s' In this since no electricians market, jurisdiction. ap- County lived the Bradford labor claimant, prentices, such as were referred from encompassed beyond 4. B 60- Zone area and traveled from outside of that area. Scranton, mile radius courthouse Penn- According sylvania. appellate to claimant’s subsection, shop 6. Pursuant to this Mateo’s brief, wage this differential was to all elec- deemed to be located in Scranton. regardless who worked in Zone B tricians they where lived or how far traveled. Brief general, obligation employee’s 7. Appellant at employer begins when he arrives at work agreement provided procedure completes 5. The also ends when he his duties and leaves the through employer’s premises. employee’s the referral electricians commute procedure, prefer- part Pursuant to that to and from work is not deemed to be a union. however, jurisdiction of rule, ing any job in the exceptions to to or from

are four this are ordered to where workmen to or from the Union (1) compensable job. if: deemed work will be employment contract together includes 16 and A review of Sections work; (2) has no from the claimant clearly sepa- two there are and/or indicates that (3) work; place

fixed is on claimant Agreement concern- provisions rate (4) special assignment employer; expenses. and travel special circumstances are such situations which 16 deals with Section claimant was the business of shop or is at the centered 648 A.2d at employer. Id. See also on the job. Section moved Olszewski, 1271; these, hand, 648 A.2d at 1257. Of in which situations other deals with only need deal with the first and fourth.8 directly we employee report is directed job to the site. Although inexplicably his decision was to In instant Claimant the only exception, on the fourth the WCJ found report site. Thus the directly to the bargaining agreement that the collective re- apply 16 to the provisions of do Section quired employer provide transporta- the was incor- instant and the WCJ provi- tion. He based this conclusion on the justify pay- applying them to the rect 16 was to sion Section of ment benefits.... shop job. provided from He then inter- be (No. Co., Inc., preted provide the contract that each Electric v. Matco Williams 1997), A94-1890, 7. employee responsible transport- slip op. at the was filed June (here, ing shop himself to the because there benefits, reversing of In the WCJ’s award shop, no a theoretical location in Scran- was upon Bechtel. Peer and the Board relied ton) responsible and the then Peer, claimant, com- a boilermaker who the transporting him from to the Scranton approximately thirty-five miles muted job. claimant was di- location Since day, sought benefits under from work each directly job, rected to to the the WCJ rid- the Act after he by transporting reasoned that himself the motorcycle Under the ing his to work. job, fulfilling employer’s claimant was the bargaining agreement of a collective terms and, doing responsibility when thus so (CBA) the claimant’s between furthering Adopt- the interests. union, a fixed the claimant received ing reading the WCJ’s of Section claimant fare, calculated car which was amount as appeal argues on that both the first and utilized the according to a formula which However, exceptions satisfied. fourth are place em- between the claimant’s distance interpretation of the contract was the WCJ’s City point of Pitts- ployment and a the erroneous, disregarded the plainly since it actually burgh, of the distance regardless unambiguous provisions of 17. As Section benefits, affirming the denial traveled. noted, the Board although provision held that this court Section 17 reads as follows: provided the claimant allowance the travel did not compensation, the CBA or with extra

No time shall be before obligate claimant for travel- after hours workmen (1991), Supreme held Court where employee’s job responsibilities; rather it is agency serving temporary never merely employee’s own of a that an viewed as place that when travel of work such interest or convenience. has a fixed workplace, assigned to an 287-88, Id. agency’s at business. excep that the third 8. Claimant does claim distin Not is Peterson 597 A.2d at 1120-21. regarding applies, the sec and his assertion case, but we have guishable the instant from appear been raised below. ond does not to have holding apply that case to interpreted the events, merit, since it At all it is devoid temporary employees, which specifically to throughout undisputed the time claimant Com See Foster Workmen's claimant is not. Sayre only at he worked worked for Mateo Bros., Inc.), (Ritter 162 Pa. pensation Appeal Bd. making argument, claimant re site. In (Pa.Cmwlth.), 938 Ap 639 Peterson v. Workmen’s lies on (1994). denied, (PRN 1327 Pa. 652 A.2d Agency), 539 peal Nursing 528 Pa. alloc. satisfied, with transportation, did it nor allow the claimant when he ployer long to exercise control over the claim- chose undertake commute. In facts, presence light transportation. ant’s means of of such and in 503 A.2d at business, nature of we contract believe claimant’s can be said claimant, Similarly, to have included to and plumber pipefitter, injured in an work, returning automobile accident while home proximately the employer’s furthered busi- Lancaster, from work. The lived in claimant ness. Pennsylvania pool commuted car (footnote and citations omit- daily Limerick, to and basis from his ted). Pennsylvania. Pursuant terms of the Initially it should noted that court applicable employees, including appears have Rear found its salient claimant, received a diem travel both facts to establish entitlement under allowance without consideration as to wheth- attempt- fourth exceptions, first and without er own transporta- used their distinguish ing to them to focus between nor tion to commute or the actual miles traveled. their different elements. For sake Relying on this court held that clarity, exceptions will deal contractual of a diem travel seriatim. not, allowance to all a could as Peer, law, Rear, beyond dispute matter It is that provi- of be to be construed transportation sion Bechtel and this share same employ- of that case is, pattern. fact That claimant material ee’s commute was within the his course of compensation some received additional Bechtel, employment. A.2d at a travel the location of his site or as hand, On the argues other claimant allowance, compensated directly but was not exceptions apply the first and fourth particular expense commuting. for his of analysis of this court in In that Rear. employers provided nor con- neither approxi- the claimant’s commute was transportation. None of trolled means of miles, mately routinely and claimant re- requested any take the claimants were ceived an extra a his cover home, work nor did have work-related expenses, travel lodging whether he obtained leaving responsibilities after site. near site the drill or returned home at the (as validly may all four cases it be it inferred day. end of the work We held: Bechtel, the Board in court in present case, In the we conclude that below) Rear and the WCJ work fur- claimant’s was in compensation an the additional incen- of therance his affairs. The might tive to attract workers who otherwise employer’s undertaking nature of the in- find the because of the com- undesirable workplaces volved establishment of vari- at Bechtel, Nonetheless, mute. in Peer and we sundry sites, creating occupa- ous and clearly give held that these facts did not rise tional environment in work could employer provided to the conclusion that from an was concentrated far transportation meaning of first ee’s home. exception, panel in Rear held contrary. We that Peer Bechtel believe that, in undisputed recognition It of ie., law, principle state the correct conditions, per such work a diem was directly where allowances are not re- lodging who near drill those found expense lated to the or distance of the em- payments recog- site. These were made commute, ployee’s and where the unique nition of the character of the does not or control the means of business, ployer’s advantageous used, to make the contract cannot be and attractive continued deemed include to and from were, however, Such monies are work.9 contract, express implied, applies

9. The first circumstances where either Indus.), (Kawecki 69 Pa.Cmwlth. entirely dispose Berylco holding This does (Pa.Cmwlth.1982). Thus, in case, however, 241, 451 A.2d 10 the issues in this because Ap Lopresti on the v. Workmen’s grounded holding also its Rear Co.), 35 Pa.Cmwlth. exception, peal (Gulf Constr. special fourth circumstances such (Pa.Cmwlth.1978), 384 A.2d 1017 the claimant was the busi- return home was on the claimant’s employer. of his Rear reasoned that ness employment paid “to found to be within the course compensation additional requested the advantageous make and attractive continued where home and then employee’s to call builder from employment” and thus that held, employer. “[t]he court “proximately This undertaking the commute back during pursuing, purposefully This decedent furthered the business.” hours, normal holding places in conflict with his usual and also Rear obligations his for the benefit performance of Peer and Bechtel. we noted with- employer.” Id. excep- out further discussion of the fourth and convenience Similarly, in F. Rittner that, William “the allowance did not fur- 1019-1020. [travel] Compensation Appeal Bd. Employer.” 503 A.2d Co. v. Workmen’s ther the (Rittner), 464 A.2d 675 adopted at 1098. In Board had (Pa.Cmwlth.1983): analysis, virtually the Rear in haec verba payments ... to make [“These were made employment, part As of the contract such continued of skilled labor with ... Employer supplied the Decedent facts, advantageous.... this set of Given Decedent drove utility van which the

we are satisfied that ... such day. The and forth to work each back proximately furthered Defendant’s business” day, call 24 Decedent was on hours omitted) (emphasis A.2d at 1270. ]. 648 during regular utilized the van reversed, Peer. following This court to day, working hours but also after work deliveries, respond to to special make Rear, disregards surprising If one it not is Employer’s premises emergencies at the gave only that Peer and Bechtel brief atten out on the road. exception; long tion to the fourth it has been Id. at 677. Under these circumstances: special entitling held that the circumstances to necessary Decedent employee injuries was for the [I]t to benefits for sustained forth to each during “in the van back and work a commute must involve an act drive comply Employ- to the employe engaged day which ... in order with order prepared to requirement that he be employer, express implied, of the or and not er’s any time of the employe.” respond emergencies to simply of the for convenience facts, Lebowitz, 265, light day night. of these Rybitski Pa.Super. 104 or v. 175 161, inescapable the Dece- (Pa.Super.1954). is 162 Accord Set conclusion accident, dent, en- ley Compensation Appeal Bd. at the time v. Workmen’s Store, 467, Pa.Super. A.2d 173 obligated provide employee Dep't 182 128 employer is to 1956), transportation employees a from (Pa.Super. with means of that the or it insures and/or Susquehanna generally See Morucci v. transporta work. promptly public when arrive at work 508, (1929); Co., 297 Pa. 147 A. 533 Collieries available, Hockenberry v. Work is State tion not 403, Ziskind, Campagna Pa. 135 A. 124 v. 287 249, Fund, Pa.Super. 2 A.2d 536 133 men’s Ins. 518, (1926); Trego, 124 A. 174 Dunn v. 279 Pa. 8); important (Pa.Super. It is 193 Nilsson. (1924); Jersey, v. New Knorr Central Railroad of note, however, pro that when is 172, (1920). 797 See also William 268 Pa. 110 A. mandatory term of as a vided to the Compensation Appeal v. F. Rittner Co. Workmen’s contract, employee’s entitle employment 596, (Rittner), A.2d 675 76 Pa.Cmwlth. 464 Bd. during injuries occur ment to benefits Bros., (Pa.Cmwlth.1983); Nepi 138 v. Nilsson specific require a commute does not the work 107, aff'd, (Pa.Super.1939), Pa.Super. 9 A.2d 912 finding provision cases, 561, (1940). 75 In such Pa. 14 A.2d 338 employer’s See interest. serves to benefit part of the consideration Co.; Pennsylvania Hastings v. F. Rittner William usually employee’s it deemed services and Co., Pa.Super. 595 Ins. 407 Nat'l Mut. Cas. benefit of he because it inures offered denied, (Pa.Super.1991), Pa. 530 alloc. e.g., employer, as an inducement it serves (1992). finding would 255 Such 607 A.2d position with the the employer, Campagna; fourth, exception. not the first relate to the Susman Kaufmann’s gaged always furtherance of his it is interest business. employees work, particularly come to if some job, circumstances its duties or contrast, Id. at 679. In in Workmen’s Com location, interest, make it unattractive. This Farms, pensation Appeal Hickory Bd. v. circumstance, being special far from (Pa.Cmwlth. Pa.Cmwlth. 367 A.2d 730 extreme, 1976), logical universal one. Taken its employee, voluntarily on her analysis initiative, the Kear would eviscerate the “com- night own took work home at going” Therefore, altogether. rule following day. decrease it her workload for the is overruled. We held that her on the way home were not within the course conclusion, the evi because at home was record, dence of we hold claimant has for her own convenience. failed to establish that his travel to and/or Parts, Finally, Unity Auto Work Inc. v. from work falls within either the first or Compensation Appeal men’s (Bigley), fourth going” (Pa.Cmwlth.1991), 610 A.2d 1071 agreement rule. The denied, oc. 528 Pa. all obligate provide did not Mateo to claimant (1991), specifically rejected argument transportation or means of commut quite analysis similar to the adopted later ing to work and travel to work claimant’s There, although part employ

Kear. of his response special request contract, ment temporarily claimant was al by Mateo.10 direction company lowed ride in the van to and day-to-day repair work on a basis pending Accordingly, the order of the Board is parents’ so, doing car. was in While he affirmed. seriously injured. an accident and was “really he testified that needed” an ORDER employee in the store because two school, NOW, leaving December, return and he AND this 11th understood that “if we did not Compensa- [the order of the Workers’ transportation, claimant] have a captioned did not Board in above Thus, job.” argued hereby Id. at 1075. claimant matter is affirmed. special

that “this case within falls circum stances he ‘was because FLAHERTY, dissenting. Judge, employer by the business of his his attend respectfully majority I from the dissent work,’ ance at he been which would not have opinion which now an enables to employer-provided able to do without trans “collectively bargain” way out its of the rejected portation.” Id. argument We this (Act) Compensation per- Act Workers’ and holding and reversed Board’s employers mits other to evade test of employ occurred in course of “furtherance interests” ment. merely promulgating a Review of the above cases makes clear policy can evade the Act.1 and Peer Bechtel were decided accordance (Claimant) precedent with clear and it was Kear which Claimant Gerald J. Williams course, petition general alleging from it. in a sense filed varied Of a claim the seri- hourly 10. Our conclusion consistent with our decision ant received an increased rate when he Com., Ap Compensation in either in Davis v. Workmen’s worked Allentown Bethlehem. Un- circumstances, (Foodarama Inc.), Supermarkets, held peal der that the claim- Pa. those (Pa.Cmwlth.1979). any exceptions ant not fall within did and, therefore, There, claimant, "coming going" pharmacist, and a rule was involved returning employment from not in course of his at the time a fatal accident while home of his accident. Id. at Bethlehem Al store. though usually Reading, the claimant worked in employ Pennsylvania Compensation expected periodically he was work in 1. The Workers' Act amended, 2, 1915, Under er’s stores in Allentown Bethlehem. is the Act June P.L. contract, §§1-1041.4; claim- the terms of his 77 P.S. 2501-2626. miles from job site was 95

ous, and the injuries he in a site paraplegic arrive icy roadway city limits. In order motor vehicle accident on an Scranton work, at 4:00 a.m. to rise to Bradford he had timely while from Scranton 4:50 a.m. County of his later than were sustained the course his home no and leave March, February Compensation During Workers months of (WCJ) Judge temporary in dark- awarded Claimant was done much of the drive work benefits, disability job required medical Working total Claimant ness. this and/or litigation twenty costs. The min- Workers on the road four hours be (WCAB) earning reversed the decision per day because utes order, of the and from that WCJ to be able apprentice at the rate enough appealed Court. of the in the area stay in a motel afford job site. special of the circum- importance location, case, especially of this stances journeyman an Claimant was terrain, traveled, required distance In- (apprentice) Local Union risks of severe hazardous weather and road Work- Brotherhood of Electrical ternational bargaining conditions and the role (IBEW) such, provi- subject to the and as ers readily agreements apparent are not from agreement, a a sions of opinion. Agreement” known as the “Inside document Claimant was involved a one-car auto- (CBA).2 period of in the fifth Claimant was 12, 1992, approxi- mobile accident on March apprentice- six-period/five-year a electrician mately north of the York- one mile New ship requiring of education and 8000 hours Pennsylvania border. The weather was se- paying from one-third training while enough discourage usual vere Claimant’s $18, i.e., in the first journeyman’s rate of $6 travelling companion to turn back after start- i.e., period, year the fifth to two-thirds Claimant, however, being ap- an out. $12.49. prentice, travelling from continued Scranton IBEW, for the Lo- Manager Business site) when, County (job Sayre in Bradford may journeyman while a cal testified that crossing overpass, pick- Claimant’s turn, ap- assignment the first refuse skidded, ice, up patch left truck struck a assignment, may not refuse an prentices roadway times. and overturned several locale, as Bradford in a even distant Claimant was thrown the vehicle circumstances, County, because injuries, including frac- sustained severe two disadvantage to contractor. this would be (T8-9), tured thoracic vertebrae a bruised journey- requires a of three ratio CBA right spinal and a fractured and left cord the low- apprentice. Inclusion of men to one iliac He confined a wheel- pelvic bone. aggre- paid apprentice results in lower er any motor control chair and does not have contractor, wage for the gate electrician’s sternum, of his including the use below making the lowering costs and thus labor lower extremities. bidding when competitive more contractor employed Claimant was job. for a (Employer) by Electrical electrician Mateo concen- 11, 1992, membership of the IBEW is February until March County. There were in Employer trated Lackawanna project at a where was Thus, County. in project. apprentices no Bradford primary contractor a construction assigned to was p.m. 3:30 once Claimant worked from 7:00 a.m. to Claimant (a to make the Sayre, required he was daily. suburb His home Dunmore 200-mile, Scranton) twenty-minute round and exactly four-hour 100.3 miles from (NECA). separate Contractors Association Agreement” simply tional Electrical 2. The "Inside bargaining agreement though Employer is a member for IBEW mem- Even power compa- utility, e.g., NECA, working for a Employer signed bers not Letter of Assent Agreement ny. parties by the thereby covered entitled to be and was (in was an (R.R. Local 81 which Claimant IBEW’s apprentice Agreement. at 41a- of the Inside terms job) and the Scranton Divi- for this 35-36). 42a, N.T. Chapter Jersey the Na- Penn-Del sion of the 1148

trip every day in to comply and Bechtel.3 order with the Rear key factor to deter- apprenticeship mining terms injury of the CBA. If Claim- whether or not an during trav- however, ant apprentices compensable, or other el is refused to should not be the there, alone, travel allowance but would have been should be forced all the travel, e.g., location, circumstances of the higher incur a aggregate wage by rate extent, risk, etc., using of which journeymen, assuming journeymen factor, especially one considering would choose to whether employment in that vicinity the nature of the travel furthers the year. that time of employer. interests of the CBA, Under the right contractor has the Strikingly, in contrast to Claimant’s to transfer employees in any IBEW Peer, the claimant was a boilermaker who job it has eight-county geographi commuted to the only thirty- site Ohio region cal encompassed by Local 81. How way. five each miles He sustained serious ever, injuries in order for the way while on his to work when he Claimant to be compensa- work-related and involved in a motor vehicle accident. On ble, Claimant’s situation must fall into one of Court, §301(c) appeal analyzed to this exceptions “coming going and Act, §411, 77 P.S. which states that rule.” Generally, injuries sustained while compensable injuries include those “sus- commuting from, “coming go or actually tained en- ing” from work compensable are not gaged in the furtherance of the business or Act, since are not considered employer, affairs of the whether (the employment coming course of employer’s premises or elsewhere.” The rule). going Compensa Peer v. Workmen’s Peer exceptions court also discussed the (B Construction), tion Board &W 94 general rule, “coming going” (Pa.Cmwlth. Pa.Cmwlth. follow the criteria in Jones v. Workmen’s 1986). recognizes excep (Rehabilitation Compensation Appeal Board rule”, tions to the going Inc.), Coordinators which a travelling employee will be consid (Pa.Cmwlth.1985). Peer, a col- ered to have sustained an in the (CBA) agreement lective between employment course of if he meets one of provided and claimant’s union following exceptions: for a travel allowance. Commonwealth 1) Claimant’s contract includ- merely properly Court held that WCAB re- transportation; ed jected legal the WCJ’s conclusion that 2) place had no fixed itself, places in and claimant’s travel ment; to and from work within the course of his 3) special assignment; Claimant was on a Although, provided the CBA extra 4) Special circumstances are such that the members, compensation to union Peer did Claimant was the business of require provide transporta- employer. any special and did not include circum- City Monessen School District v. Work involved, regarding stances the travel both Board, Compensation Appeal men’s 155 Pa. present which are in the instant case. (1993); 624 A.2d 734 Rear v. addition, expressly the Court found that the Compensation Appeal Workmen’s in allowance Peer did not further the (Fairman Drilling Company), 102 Pa. Accordingly, er’s business. this Court held (1986). 517 A.2d 586 bring that the CBA did not claimant’s trans- majority opinion perceives portation The in scope a conflict to and from work within the holdings Peer, thus, employment. the of Peer and Rear and mistaken- of his first focused ly attempts by holding employer’s to settle it that the on the furtherance of interests only record, facts of in nothing this case are the same as then in found the (Pa.Cmwlth.1994), Corp. Compensa 3. Bechtel Power v. Workmen's 648 den i alloc. (Postlethwait), ed, (1995). 540 Pa. 655 A.2d 516 of receipt determining whether the in provisions of the focus including pay the travel em- expenses brings the money travel justify on the the reliance WCJ’s of his ployee within the course pay benefiting employer the travel required by extent the Act. facts, in Despite the differences settle case seeks to majority in the instant while the claimant was killed and Bechtel Rear results between the diverse driving home from The claimant was work. following line of cases on the Peer day travelling paid per an additional $5.00 unnecessarily reasoning Peer and of noted, however, to his site. Court Unfortunately, a solu- Rear. overruling only employee loca- that the worked at one be- in further confusion result tion will day per that did not tion and strictly employer’s on an travel it cause relies travelling expenses because constitute the travel payment policy or on paid whether an drove or ear which was collec- provisions agreement of an paid pooled to work and were without consid- legislated tively rather than on the bargained an em- eration for the actual distance that statutory expressed in purpose intent and ployee If needed travel work.4 workers, Act, in protection the for which Bechtel, the follow Claimant’s differential effect, right in sue the have traded their per hour is to him whether or 49 cents common employer at law. and, therefore, carpools he drives §301(c) Act, should not considered travel allowance In accordance with majority either. relies on character- §411, compensable of an P.S. denying ization of the 49 cents hour in actually is ployee occurs when disability this Claimant benefits when was Employer’s busi- engaged in furtherance clearly injured furthering Employ- Peer. ness.

er’s business. Rear, majority seeks overrule While the Rear, no formal there was injuries are not concluding in that Claimant’s in clearly contract. claimant Rear testified that compensable when Claimant was expenses. he was for travel Employ- $20 solely furthering the interests of alleged has, effect, Rear er, $20 overruled lodging, but that claimant chose to Peer. it use to travel to and from work instead. Rear, facts in Peer and Bechtel As the The Referee in Rear found that the claimant evolved, more succeeding ease focused each employer’s business and expense on the varieties travel and more the nature business plans rather policies establishing places involved work at “various complete picture of all emphasizing than factors, sundry Using sites.” three fur- what other factors that determine Referee in Rear found that the monies were business, clearly thers the expenses for travel and thus the claimant fit Act, 301(c) of the 77 P.S. stated Section go- within an §441. ing” in Rear are: rule. The three factors Peer, Rear Resolution the conflicts (1) employer required Was the accomplished under equally and Bechtel transportation? it held Act when (2) allowed to exercise Was primarily further- during control over the means of compen- are business ance employees? chosen individual determination is that such factual sable and (3) Did the allowance further the into taking consid- left to the factfinder best employer? compensa- method of travel eration that the making such a only one factor appeal, emphasized it was tion is this court On be the determination.5 that the third factor manifest employment at time scope of his on the course and benefits were denied injuries. his grounds was outside case, following contains In this the CBA

Employer place ling, was found to only applies have its while Section 16 not to State, and, payment, Employer’s New York having but also to additional jurisdiction, obligation transportation none within the union’s to if Scranton furnish was, job thereby, jurisdiction, designated “shop” is within the union’s as the under as-well time, board, etc., paying travelling terms of Section 9. but not Under the terms of transportation job to Employer Section furnish when the required not to fur- (not for) just jurisdiction. within pay nish transportation from (Scranton) (Bradford) shop job to and return. provisions CBA, Under the of the Claim- simply This is unable to be contradicted. It hourly per ant’s higher rate was hour $.49 plain Agree- and clear on the face of the working (sixty beyond for in Zone B miles ment. Scranton). Square Courthouse Because hourly only paid this additional rate was In this clearly the facts demonstrate jobs sixty worked outside the mile radius of

that the properly WCJ found that the Claim- courthouse, payable it was not to ant, site, in travelling job pri- did so travelling, who as Bechtel marily for' Employer, the benefit of the Peer, infra, only percentage it was for himself and not for the union. WCJ paid journeymen the full travelling rate concluded that obligates this Section Em- should considered the ployer provide and, transportation since “transportation” obligation under the first so, Employer failed to do Claimant was ful- coming going to the rule. filling Employer’s obligation by providing his own vehicle. importantly, apprentice Most this was not job job able to turn down this closer to majority opinion reviewed Section 16 his home under the terms of the CBA with- conjunction with Section 17 and held that jeopardizing journeyman out career as a separate provisions: were two Section year electrician which was within one of com- dealing job shop type travel and pletion. Section 17 where an is directed to report directly job majority site. The Under Section 16 of the holds that reported because the Claimant required provide transportation. er is site, directly provisions Employer provided instead a mere requiring Employer Section 16 (.49 hour) $3.92/day bargained which it apply did not and that for, WCJ in order to relieve itself of the burden of applying was incorrect in Section 16 to in- providing transportation employees. for the clude benefits under Rear. permit- of this Court has now apparent This conclusion is not from the Employer through ted the bar- plain language of the CBA. gaining process compensating to avoid only way (requiring ployees that Section 16 furtherance Employer transportation) to furnish its own business. order to assure a applicable force, paid Employer to this Claimant is if the lower labor jurisdiction site is not within bargain of the union. had to subscribe to a collective for a that, Although hour, provides of'only CBA Section 17 “no differential 49 cents travelling time shall be ... when had to at the risk of work- job,” men are ordered to unemployment Accepting Sec- and loss of career. only applies

tion 17 for travel- the travel allowance CBA furthers provisions relating pay: jurisdiction to travel of the Union. On work outside of Union, jurisdiction Employer Employer perma- Section 9 When the has no board, shop jurisdiction transportation, nent Union, located in the shall furnish and all added.) then under such circumstances Scran- necessary expenses. (Emphasis city ton shall be considered the in which the traveling Section 17 No time shall be shop is located. after before or hours to workmen for any job jurisdiction to or from in the pay Section 16 The shall for travel- the Union where are ordered workmen shop time and furnish job. report on the job, job job, shop, special a circumstance expenses, was the and Claimant should business Em- penalized directly farthered the interests not for be this. and, such consequence of a direct ployer as apprentices, as Consequently, such Claim- longer able travel, no the Claimant ant, travel two hundred who were forced to gradua- of in shadow apprentice bodied in daily miles order place him a a that would tion with future competitive wage rate and who addi- with electrician, highest among the journeyman tionally subject being directed respect to building trades with ranks of union, directly by jobs, not various but skill, education, and training, compensation only travelling pri- were not contemplat- benefits, relegated to but is now marily employer, for the benefit of the but without the from a wheelchair his dream so, acting doing were to farther body. Bradford feeling of lower use and his apparent er’s business with little additional neighbors northern tier County and its personal benefit to the Pennsylvania legitimately earned have of time, and cost of travel other than risk winters reputation the most severe day. pay of additional which this Court should Pennsylvania, of The Court in Bechtel Commonwealth imagine It is hard judicial take notice. present in the case failed in the chose to travel there that Claimant analysis apply the three-factor set forth for an extra $3.92 dead of winter of receipt Kear determine whether monies Employer have attracted other could expenses brings for travel pittance. electricians there employment. of These within the course his circumstance” being not an “unusual factors are in conflict with either Peer Far from per- coming going they only criteria since outline which would eviscerate allowances, rule, taining receipt condi- consistently of travel hazardous road only determining Pocono through which is one factor tions Scranton mountains, surrounding counties in going and the whether travel meets the into the York State Pennsylvania rule.” and New certainly special are circum- Bradford area emphasized Kear court it comparable to the road condi- stances factor manifest the third south central areas tions in the southeast and determining receipt of focus in whether Pennsylvania during those same months. money expenses brings for travel con- consistently winter weather severe ployee within course Pennsylvania are ditions certain areas arduous, By long, undertaking the hazard- areas and defi- radically from other different every day depths to Bradford in the ous ride nitely are.special circumstances winter, greatly furthered the Claimant coming going exception to the fourth Employer. interest of the While along with considered rule which should be compensation additional factors, including, but not limit- other all the Claimant, Employer of minimal benefit etc., case to, policies, on a pay ed advantage. a tremendous economic realized Bech- did in Kear and case basis Bradford, apprentices resided in Since no easy answer searching for an without tel use Employer would have been forced to entirely on one factor. based almost may journeymen may or higher paid who considers the is obvious. one reason When that time choose to policies in variety pay of travel innumerable apprentices if Local year in that locale the the ba- agreements and required to Bradford to travel had not been only be a origination, it will their sis for wage only 49 receive a much lower various circumstances of time when matter per hour added for cents differential exceptions also be will cause numerous time, risk involved. effort and ulti- majority opinion which will made to being paid to lip service mately lead to provides ex- an excellent The instant case is in further- when the travel the true test of incidents ample how the nature and major- business. travel, ance of regard payment of travel without ity opinion already depar- has started such a

ture. holding in these cases on travel should factor,

turn very not on one narrow such as allowance,

the characterization of a travel but presented whether or not the facts as Employer”

“further the interest of the

provided by the Act and A stated Rear. compensation

worker’s benefit should not be

dependent upon private policies agree- or travel, regarding policy

ments whether that

is instituted Agreement an Inside policy prepared solely by

or a unilateral employer. nego-

tiations, language travel benefits setting pay

forth travel easily conditions are too

compromised exchanged for other and/or important benefits, compensation

more or relationship coming

which have no

going here, rule. Rear should be followed Likewise,

not overruled. Peer and Bechtel Rear, overruled,

need not be either. Peer

and Bechtel were each decided on their facts determining whether further-

ance of the business interests. employers has now enabled

collectively bargain away unilaterally

adopt policies escape legislatively their responsibilities

mandated under the Act. I

would reverse the and affirm WCAB

decision of the WCJ to award benefits.

Judge joins SMITH this dissent.

Timothy HOFFMASTER, Petitioner, APPEAL

WORKERS’ COMPENSATION (SENCO PRODUCTS,

BOARD

INC.), Respondent. Pennsylvania.

Commonwealth Court July

Submitted on Briefs 1998.

Decided Dec.

Case Details

Case Name: Williams v. Workers' Compensation Appeal Board

Court Name: Commonwealth Court of Pennsylvania

Date Published: Dec 11, 1998

Citation: 721 A.2d 1140

Docket Number: 1578 C.D. 1997

Court Abbreviation: Pa. Commw. Ct.