Generally speaking, employees in Pennsylvania are not entitled to workers’ compensation benefits when the employee is injured commuting to work (known as the “Coming and Going” rule).
There are four notable exceptions to this rule. They are that the injured worker: (1) has an employment agreement which includes commuting to and from work; (2) has no fixed place of employment; (3) is hurt while on a “special assignment” for employer; or, (4) is furthering the business of the employer.
The Supreme Court of Pennsylvania, in Peterson v. Workmen’s Compensation Appeal Board (PRN Nursing Agency), decided in 1991, has already told us that an employee of a temporary agency has no fixed place of employment. In that case, the Supreme Court said, “[a] temporary employee, who is employed by an agency, never has a fixed place of work.” The Supreme Court then concluded, “when [an] agency employee travels to an assigned workplace, the employee is furthering the business of the agency. Therefore, . . . as a matter of law, [Peterson] had no fixed place of work . . . and her injury occurred while she was in furtherance of her employer’s business.”
The Peterson decision seems hard to reconcile with a recent decision rendered by the Commonwealth Court of Pennsylvania, Mackey v. Workers’ Compensation Appeal Board (Maxim Healthcare Services). In this case, Ms. Mackey, a home health aide, injured her ribs, knee and back in a motor vehicle accident on the way to a patient’s home. The Workers’ Compensation Judge (WCJ) denied the Claim Petition filed by Ms. Mackey, under the “Coming and Going” rule. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).
Despite the similarities between Ms. Mackey and the injured worker in Peterson, the Commonwealth Court of Pennsylvania affirmed the decision, finding Ms. Mackey not entitled to PA workers’ comp benefits. While Ms. Mackey did work for a temp agency, and was sent directly to a patient’s home from her own, the Court noted that Ms. Mackey worked for the same patient for a year and a half, and had no reason to believe the assignment would be ending in the near future. So, while a temp job typically would have no fixed place of employment, the facts in this case show Ms. Mackey DID have a fixed place of employment.
The Court also rejected Ms. Mackey’s argument that by going to the patient’s home in bad weather, there were “special” circumstances, and she was furthering the interests of the employer. As we discussed in a previous blog entry, the Court disposed of this argument by finding that having an employee show up at work is not a “special” circumstance, but rather a “universal” one, held by every employer.
As attorneys who represent injured workers in PA, we are troubled by this decision. A temp job, by its very nature is . . . you guessed it, temporary. As the Supreme Court of Pennsylvania held in Peterson, a temp job is a different creature, requiring different rules. The Mackey case sets a dangerous precedent. Now there appears to be an imaginary line in time when a temp employee, having no fixed place of employment, magically becomes an employee with a fixed place of employment. As lawyers, we ask for little more than certainty from the Courts; decisions like Mackey only serve to undermine such certainty, leading to additional litigation and further stretching of precious judicial resources.