We have previously discussed the “coming and going rule” in Pennsylvania Workers’ Compensation, where, essentially, an employee is not covered by the PA Workers’ Compensation Act if he or she is injured while on the commute to or from work. Like most legal rules, of course, there are exceptions. The Commonwealth Court of Pennsylvania recently addressed this issue.
In Lutheran Senior Services Management Company v. Workers’ Compensation Appeal Board (Miller), the injured worker had a serious motor vehicle accident while going in to work. Again, by the general rule, workers’ compensation benefits would not be available to the injured worker. However, this fact pattern has a twist. The injured worker was Director of Maintenance Director of Maintenance for a nursing home facility. There were occasions when he had to come in on a day off to deal with an emergency (he was a salaried employee, not an hourly one). On those occasions, the established practice of the employer was to provide “comp time” for him. The “comp time” would run from when he got paged, to when he got back home.
One day, the injured worker was sick. He planned to call out of work. The employer called him and said a security camera malfunction had to be fixed. None of the three employees working under him were available, so he went into work. On the ride into work, he was involved in the bad car accident.
The workers’ comp insurance carrier denied the claim, taking the position that he was hurt on his commute, and not entitled to benefits. After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Claim Petition. Specifically, the WCJ concluded that, “Claimant was sick on March 13, 2014, and except for the special need of the Employer to assure [that the] surveillance cameras became operative . . . Claimant would not have gone to work.” This would represent an exception to the “coming and going rule.”
Upon appeal, the Workers’ Compensation Appeal Board (WCAB), affirmed the decision of the WCJ granting the claim, but on a different basis. The WCAB felt these facts represented more “special circumstances” than a “special mission,” but that, either way, the facts met an exception to the “coming and going rule,” making the award of workers’ comp benefits appropriate.
This decision was then affirmed by the Commonwealth Court of Pennsylvania, after examining the nature of the “special circumstances” exception:
“We focus on the fourth exception, as that is the exception relied upon by the Board. ‘Special circumstances’ have rendered compensable an injury sustained during a commute where: (1) the employee is requested by the employer to come in; (2) the request is for the convenience of the employer or in furtherance of its business; and (3) the trip is not simply for the convenience of the employee . . . Further, the request by the employer can be direct or express, on the one hand, or implied, on the other, to qualify as a special request by the employer.”
After comparing the evidence found credible by the WCJ against the law, the Court had no trouble concluding that the only reason Claimant went in on that day, after planning to call out sick, was to help out the employer and fix the security camera. The fact the “comp time” policy covers door to door shows that travel should be included. This was not just a part of his normal work day. As such, workers comp benefits were properly awarded.
These commuting cases are always difficult, and are very dependent on the facts involved. These kinds of complicated issues should remind injured workers that they need representation of experienced PA workers’ compensation attorneys, like those at Brilliant & Neiman LLC. Both of our attorneys are certified as specialists in the practice of workers’ compensation law, so every one of our clients can be assured their case is being handled by an experienced and competent attorney.