Ernesto Roman (claimant) appeals here from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s decision denying the claimant compensation under Section 301(c)(1) of The Pennsylvania Workmen’s Compensation Act (Act)
Before this court, the claimant raises two issues. The first is that certain findings of the referee are not supported by substantial evidence. The second is that the referee’s findings do not support the conclusion that the claimant was not within the scope of his employment when he was injured.
The necessary and undisputed facts indicate that the claimant was employed by the Department of Environmental Resources (employer) as an inspector. This work required that he travel to construction sites throughout the state in a car provided by the employer. He was also required to stay in hotels in the vicinity of the construction sites during the work week and he returned to his home in York, PA on the weekends. During June of 1987, the claimant was assigned to work at sites in the Scranton/Wilkes-Barre area. Although suitable lodging was available which was closer to some of the
The referee also made the following findings of fact with which the claimant has taken issue.
8. The Claimant had a habit of visiting with his girlfriend on Monday mornings. The Claimant lived in York, Pennsylvania and his girlfriend lived in the Wilkes-Barre area.
9. The Claimant had stayed at the Holiday Inn in Wilkes-Barre many miles from the job site in spite of the fact that he could have stayed at hotels with comparable accommodations at a much closer location to the job site.
10. The Claimant testified that he had to check in on the first day of work and this was done in the morning.
11. Claimant was not required to check into the motel during lunch hour.
12. The Claimant worked at the job site (north of Scranton) for several weeks and made advance arrangement with the Holiday Inn in Wilkes-Barre on every Friday for the next week. Thus, the Claimant did not have to cheek in until the late afternoon or evening of his first day of work in the following week.
Referee’s Decision of April 4, 1989 at 2, Reproduced Record (R.R.) at 144a.
Based on these facts, the referee concluded that the claimant had failed to meet his burden of proving that his injury occurred within the scope and course of his employ
Because we believe the Board erred as a matter of law by concluding that the claimant failed to meet his burden of proving that his injury was sustained in the course of his employment, we will reverse.
Whether an employee is in the course of his employment at the time of his injury is a question of law which must be based on the findings of fact. Stillman v. Workmen’s Compensation Appeal Board (CBR Enterprises), 131 Pa.Commonwealth Ct. 106, 569 A.2d 983 (1990). The course of employment is necessarily broader for traveling employees and is liberally construed to effectuate the purposes of the Act. Aluminum Co. of America v. Workmen’s Compensation Appeal Board, 33 Pa.Commonwealth Ct. 33, 380 A.2d 941 (1977). 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. Investors Diversified Services v. Workmen’s Compensation Appeal Board, 103 Pa.Commonwealth Ct. 562, 520 A.2d 958 (1987). The employer bears the burden of rebutting this presumption. Aluminum Co. 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. Port Authority of Allegheny County v. Workmen’s Compensation Appeal Board (Stevens), 70 Pa.Commonwealth Ct. 163, 452 A.2d 902 (1982). “[T]emporary departures from the work routine for the purpose of administering to the comforts of an off-the-premises employee, including authorized breaks for lunch, will not interrupt the continuity of the employee’s course of employment.” Id. at 167, 452 A.2d at 904.
To meet its burden, the employer introduced the testimony of the claimant’s co-worker to establish the claimant’s habit of meeting his girlfriend for breakfast or early lunch every Monday morning before she started working at noon.
Additionally, the employer presented evidence that contradicted the claimant’s statement that he was traveling to his hotel to check-in for the week. Because the referee accepted the employer’s evidence, it succeeded in establishing where the claimant was not going when he was injured. However, proof of this fact alone is woefully inadequate for the purpose of rebutting the presumption and showing that the claimant had abandoned his employment relationship.
Accordingly, the order of the Board is reversed.
ORDER
AND NOW, this 24th day of September, 1992, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is reversed and the case is remanded for computation of benefits.
Jurisdiction relinquished.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
. Our scope of review in workmen's compensation cases is limited to determining whether constitutional rights have been violated, errors of law committed, or whether findings of fact are supported by substantial evidence. Furnco Constr. Corp. v. Workmen’s Compensation Appeal Board (Dorogy), 124 Pa.Commonwealth Ct. 17, 555 A.2d 275 (1989).
. “The general rule in Pennsylvania is that evidence of a person's habit is admissible to show that he or she acted in conformity with the habit on a given occasion.” Leonard Packel & Anne Bowen Poulin, Pennsylvania Evidence 185 (1987) (footnote omitted).
. Although the claimant asserts that this finding of fact is not supported by substantial evidence, we need not address this issue due to our resolution of this case.
