Opinion
No. 706 C.D. 2014
11-20-2014
Tiffany Altamirano, Petitioner v. Workers' Compensation Appeal Board (Seraphim LLC), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Tiffany Altamirano (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision and order of the Workers' Compensation Judge (WCJ) dismissing her Claim Petition on the ground that her injuries were not sustained in the course and scope of her employment. For the reasons set forth below, we reverse.
The relevant facts in this case are undisputed. Claimant was employed from May 2009 to August 29, 2011 by Seraphim LLC d/b/a Visiting Angels (Employer) as a home health aide providing non-medical care and assistance to individuals in their homes. (WCJ Decision Findings of Fact (F.F.) ¶¶3, 3a, 4; 2/14/12 Hearing Transcript (H.T.) at 8-9, Reproduced Record (R.R.) at 8a-9a; 4/17/12 H.T. at 22, 30, 40-41, R.R. at 75a, 83a, 93a-94a.) Employer contracted with individuals to provide them home caregiving and assigned Claimant and other aides to work shifts in the clients' homes. (WCJ Decision F.F. ¶¶3, 3d, 4; 2/14/12 H.T. at 15, 18-20, 32-33, R.R. at 15a, 18a-20a, 32a-33a; 4/17/12 H.T. at 22-23, 40-41, R.R. at 75a-76a, 93a-94a.) Claimant worked at many different client homes during her work for Employer and did not have a fixed schedule because caregiving services could be terminated by either Employer or the client and staffing needs could vary. (WCJ Decision F.F. ¶¶3, 4, 4c; 2/14/12 H.T. at 17-18, R.R. at 17a-18a; 4/17/12 H.T. at 13, 30-31, 35-38, R.R. at 66a, 83a-84a, 88a-91a; Claimant Ex. 4, R.R. at 109a.) Employer characterized Claimant as a "part-time, temporary" employee. (WCJ Decision F.F. ¶¶4, 9; Claimant Ex. 4, R.R. at 109a; 4/17/12 H.T. at 37-38, R.R. at 90a-91a.)
Claimant was not required to report to Employer's office before or after a shift in a client's home. (WCJ Decision F.F. ¶¶3i, 4e, 7.) Employer paid Claimant only for the hours at the client's home and not for her transportation or time getting from her home to the client. (WCJ Decision F.F. ¶¶3h, 4d.) In addition to her caregiver shifts, Claimant also worked on-call assignments for Employer answering Employer's telephone after hours from 4:00 p.m. until 8:00 a.m. the next morning, taking messages and arranging for a substitute caregiver when an aide called in that she could not work. (WCJ Decision F.F. ¶¶3, 3b; 2/14/12 H.T. at 21-22, R.R. at 21a-22a.) This work was done away from Employer's office, and Employer paid Claimant for this on-call, after-hours telephone coverage in addition to her wages for the caregiver shifts that she worked. (2/14/12 H.T. at 22, 32, R.R. at 22a, 32a; WCJ Decision F.F. ¶3.)
On August 29, 2011, Claimant was seriously injured in an automobile accident while being driven by her husband from her home to a client's home to work an 11:30 p.m. to 7:30 a.m. shift. (WCJ Decision at 1 & F.F. ¶¶3f, 3g, 5a.) For approximately three months prior to August 29, 2011, Claimant had worked the same 11:30 p.m. to 7:30 a.m. shift for the same client. (WCJ Decision F.F. ¶¶3c, 4b; 2/14/12 H.T. at 11-13, 15-16, R.R. at 11a-13a, 15a-16a; 4/17/12 H.T. at 41, R.R. at 94a.) During that period, Claimant had also occasionally worked for Employer at other clients' homes and had worked some additional shifts for the same client. (WCJ Decision F.F. ¶¶3, 4, 4c; 2/14/12 H.T. at 16-18, R.R. at 16a-18a; 4/17/12 H.T. at 11-13, 34-35, 41-42, R.R. at 64a-66a, 87a-88a, 94a-95a.) At the time of the accident, Claimant was working for Employer on call handling after hours telephone calls and had been on duty in that capacity since 4:00 p.m. that afternoon. (WCJ Decision F.F. ¶3b; 2/14/12 H.T. at 21, R.R. at 21a; Claimant Ex. 2, R.R. at 108a.) Claimant's employment with Employer was terminated effective August 29, 2011, after the occurrence of the accident. (WCJ Decision F.F. ¶3b; 2/14/12 H.T. at 9, R.R. at 9a; Claimant Ex. 2, R.R. at 108a.)
The injuries alleged in Claimant's Claim Petition include carotid and vertebral artery dissections, traumatic brain injury, and spinal fractures. (Claim Petition at 1; WCJ Decision F.F. at 1; 4/17/12 H.T. at 10, R.R. at 63a.) Employer did not dispute that Claimant suffered significant injuries in the automobile accident, but the exact nature and extent of those injuries was not resolved because the hearing before the WCJ was limited to the issue of whether the accident occurred in the course and scope of Claimant's employment. (2/14/12 H.T. at 27-29, 46-50, R.R. at 27a-29a, 46a-50a; 4/17/12 H.T. at 48-49, R.R. at 101a-102a; WCJ Decision at 1.)
On December 2, 2011, Claimant filed a Claim Petition seeking disability benefits and payment of medical expenses for her injuries in the August 29, 2011 accident. The WCJ bifurcated the proceedings to resolve first the question of whether Claimant was acting in the course and scope of her employment at the time of the accident. The WCJ held hearings on that issue on February 14, 2012 and April 17, 2012 at which Claimant and Employer's owner testified. On September 5, 2012, the WCJ issued a decision dismissing Claimant's Claim Petition. In this decision, the WCJ found the testimony of both Claimant and Employer's owner credible, but ruled that Claimant's travel to the client's home at the time of the accident did not fall within any of the exceptions to the rule that injuries in travel to or from work are generally not covered by the Workers' Compensation Act (the Act). (WCJ Decision F.F. ¶¶3, 4 and Conclusions of Law (C.L.) ¶¶4-9.) Claimant timely appealed and the Board affirmed on April 4, 2014. This appeal followed.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Our review is limited to determining whether an error of law was committed, whether the WCJ's necessary findings of fact are supported by substantial evidence, whether the Board violated its procedures, and whether constitutional rights were violated. Mackey v. Workers' Compensation Appeal Board (Maxim Healthcare Services), 989 A.2d 404, 406 n.2 (Pa. Cmwlth. 2010). --------
In order to qualify for workers' compensation benefits, a claimant bears the burden of demonstrating that her injuries occurred in the course and scope of her employment. Wachs v. Workers' Compensation Appeal Board (American Office Systems), 884 A.2d 858, 862 (Pa. 2005); Mackey v. Workers' Compensation Appeal Board (Maxim Healthcare Services), 989 A.2d 404, 406 (Pa. Cmwlth. 2010). Section 301(c)(1) of the Act provides that injuries in the course and scope of employment include "injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere." 77 P.S. § 411(1). The question of whether an employee's injuries were in the course and scope of employment is a question of law fully reviewable by this Court. Wachs, 884 A.2d at 862; Peterson v. Workmen's Compensation Appeal Board (PRN Nursing Agency), 597 A.2d 1116, 1119 (Pa. 1991); Mackey, 989 A.2d at 406.
Under what is commonly called the "going and coming rule," injuries occurring off the employer's premises while the employee is traveling to or from work are generally not within the course and scope of employment. Wachs, 884 A.2d at 861-62; Biddle v. Workmen's Compensation Appeal Board (Thomas Mekis & Sons, Inc.), 652 A.2d 807, 808-09 (Pa. 1995); Peterson, 597 A.2d at 1119; Mackey, 989 A.2d at 406-07. Four exceptions to this rule exist, however, and an injury suffered during the claimant's commute is within the course and scope of employment where: (1) the employment agreement between the claimant and employer included transportation to and from work; (2) the claimant had no fixed place of work; (3) the claimant was injured while on a special assignment for the employer; or (4) special circumstances indicate that the claimant was furthering the business of the employer. Wachs, 884 A.2d at 862; Biddle, 652 A.2d at 809; Peterson, 597 A.2d at 1119-21; Mackey, 989 A.2d at 407.
Claimant argues that the WCJ and the Board erred in ruling that Claimant had a fixed place of work and that her claim for benefits was barred by the "going and coming" rule. We agree.
In Peterson, our Supreme Court held that a licensed practical nurse assigned to work at a hospital by her employer had no fixed place of work and was therefore entitled to disability benefits for injuries in an automobile accident on her way to work at that hospital. The claimant's employer in Peterson was an agency that "entered into agreements with various hospitals, nursing homes, and private individuals, for the purpose of supplying registered nurses, licensed practical nurses, and nursing assistants, to those parties as their needs arose," and assigned claimant to work for a client by calling her a week in advance to inquire whether she was interested in accepting the assignment to that client and shift. 597 A.2d at 1118. The claimant's employer did not pay her for her time or expenses traveling to the client workplace and the claimant reported directly to the assigned workplace and not to the employer's office. Id. The Supreme Court held that the claimant was a temporary employee of an agency that supplies workers and therefore did not have a fixed place of work, rejecting the employer's contention that the hospital to which she had been assigned was a fixed place of work. Id. at 1120. Because the claimant had no fixed place of work, her travel to her assigned client workplace was in furtherance of the employer's business and within the course and scope of her employment. Id. at 1120-21.
In contrast, our Supreme Court and this Court have held that an employee of a construction company has a fixed place of work at the employer's job site and that injuries in accidents commuting to or from the job site are not in the course of employment, if the claimant has been assigned to that site indefinitely and has not shown that he was regularly working for the employer at other job sites during the same time period. Biddle, 652 A.2d at 809-10; Bensing v. Workers' Compensation Appeal Board (James D. Morrissey, Inc.), 830 A.2d 1075, 1079 (Pa. Cmwlth. 2003); Foster v. Workmen's Compensation Appeal Board (Ritter Brothers, Inc.), 639 A.2d 935, 938 (Pa. Cmwlth. 1994). Peterson does not apply to such claimants because they are working for the employer at the employer's work site, and are not employees of an agency that assigns them to work for other persons and entities. Foster, 639 A.2d at 938.
In Mackey, this Court applied these precedents and held that a home health aide had a fixed place of work at the home of the patient to whom she was assigned, where the claimant had been assigned by her employer to that same patient for a year and one-half and had never been assigned by her employer to any other patient or location. The Court ruled that the claimant's employer was the same type of employer as in Peterson, an agency that provides temporary workers as needed by its clients. 989 A.2d at 409. The Court, however, concluded that the length of the claimant's assignment and absence of any other assignments demonstrated that "Claimant's assignment was, for all actual and practical purposes, a permanent assignment" and that the mere theoretical possibility that she could in the future be assigned to a different location if her patient moved did not negate the fact that her lone assignment was a fixed place of work. Id.
Here, contrary to Employer's contention, Claimant worked for the same type of agency as in Peterson. Mackey, 989 A.2d at 409. This case is therefore unlike Biddle and the other construction cases, where the employer was not an agency that assigned its workers to clients and employers' own job site constituted a fixed place of employment. Claimant's work situation was also far closer to that in Peterson than the long-term, single work assignment in Mackey.
The undisputed testimony found credible by the WCJ established that, as in Peterson, Claimant was assigned to clients by a telephone call from Employer offering assignments where Employer needed to place caregivers and instructing Claimant where and when to report. (2/14/12 H.T. at 15, 17-20, 32-33, R.R. at 15a, 17a-20a, 32a-33a; 4/17/12 H.T. at 23, R.R. at 76a.) While Claimant had worked for approximately three months with the same client to whose home she was traveling at the time of the accident, unlike the situation in Mackey, she had also worked at one or two other clients' homes during that period and had been assigned by Employer to many different clients over the two years that she worked for Employer. (2/14/12 H.T. at 17-18, R.R. at 17a-18a; 4/17/12 H.T. at 11-13, 30, 34-35, 41-42, R.R. at 64a-66a, 83a, 87a-88a, 94a-95a.) Employer represented that Claimant's "schedule varies from week to week as we do not guarantee hours or a set schedule" and that "[o]ur employees are categorized as part-time, temporary due to the nature of our business." (Claimant Ex. 4, R.R. at 109a.) Employer's owner admitted that these statements were an accurate description of Claimant's work situation at the time of her accident. (4/17/12 H.T. at 37-38, R.R. at 90a-91a.) The fact that Employer did not pay Claimant for time traveling from her home to a shift or pay her travel expenses is irrelevant to whether she is eligible for benefits on the ground that she had no fixed place of work. Peterson, 597 A.2d at 1120.
Moreover, Claimant was in fact working for Employer at more than one location on the day of the accident and was working for Employer before the accident occurred. On August 29, 2011, Claimant was being paid by Employer for on-call work covering after hours telephone calls from 4:00 p.m. on, and was thus already at work before she left her home to travel to her shift at the client's home. (2/14/12 H.T. at 21-22, R.R. at 21a-22a; Claimant Ex. 2, R.R. at 108a.) Where a claimant is already at work for her employer before traveling to a workplace location, the "going and coming" rule does not apply and injuries sustained on the way to that location are in the scope and course of employment, even if the claimant has a fixed place of work. Ruth Family Medical Center v. Workers' Compensation Appeal Board (Steinhouse), 718 A.2d 397, 401 (Pa. Cmwlth. 1998); Bradshaw v. Workmen's Compensation Appeal Board (Bell Hearing Aid Center), 641 A.2d 664, 667 (Pa. Cmwlth. 1994); Denny's Restaurant v. Workmen's Compensation Appeal Board (Stanton), 597 A.2d 1241, 1244 (Pa. Cmwlth. 1991).
Because of the nature of Claimant's work as a home health aide assigned by Employer to work for different clients with no set schedule and because she was already at work for Employer at the time of her accident, Claimant's injuries en route to her shift at a client's home were within the course and scope of her employment. The Board's order affirming the WCJ's dismissal of her Claim Petition must therefore be reversed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 20th day of November, 2014, the order of the Workers' Compensation Appeal Board (Board) in the above matter is REVERSED. This case is REMANDED to the Board to remand to a Workers' Compensation Judge with instructions to address and determine the nature and extent of the injuries sustained by Claimant Tiffany Altamirano in the accident of August 29, 2011 and of her disability from such injuries.
Jurisdiction relinquished.
/s/_________
JAMES GARDNER COLINS, Senior Judge