Opinion
No. 1645 C.D. 2011
04-18-2012
Comcast Corporation, Petitioner v. Workers' Compensation Appeal Board (Clark), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Comcast Corporation (Employer) challenges the order of the Workers' Compensation Appeal Board (Board) which affirmed the decisions of the Workers' Compensation Judge (WCJ) that granted the claim and reinstatement petitions of Terrance Clark (Claimant).
Claimant was employed as a level three communications technician. He installed cable, phone, and internet services in customers' homes. He also performed repairs for customers from the point of access at the pole to the inside of the house. Employer provided Claimant with a company van which he was permitted to drive to and from work. Claimant was not permitted to use the vehicle for non-work purposes.
On April 17, 2008, Claimant left his residence at approximately 5:30 a.m. to drive to Employer's Downingtown, Pennsylvania office. As Claimant slowed to avoid a deer, he was struck from behind by another vehicle. Claimant injured his neck, shoulders, and back. Claimant did not work from April 17, 2008, until June 7, 2008, when Claimant returned to work with no limitations.
On June 11, 2008, Claimant petitioned for benefits and alleged that he suffered a "[r]ight shoulder strain/sprain, neck, left hand numbness, mid-back strain/sprain" on April 17, 2008, when he was injured in the automobile accident. Claim Petition, June 11, 2008, at 1. Claimant sought total disability benefits from April 23, 2008, forward.
On September 22, 2008, Claimant testified before the WCJ that he was provided with a company van which he drove from home each morning. Notes of Testimony, September 22, 2008, (N.T.) at 8; Reproduced Record (R.R.) at 20a. Claimant described his workday. Claimant explained that he normally spent about fifteen minutes in the main office in the morning. At the end of the day, Claimant usually went back to the office to drop off paperwork and then went home. N.T. at 11; R.R. at 23a. Claimant was almost always on the road during the day except when he was at a customer's house. N.T. at 12; R.R. at 24a. At the time the accident occurred Employer had a policy where employees would be on call after normal working hours on a rotating basis and would take the van from home to the job. N.T. at 13-14; R.R. at 25a-26a. The day after the accident Claimant experienced a stiff neck, pains in his shoulder, and the middle part of his back. N.T. at 18; R.R. at 30a. Claimant worked on April 20, 2008, and April 21, 2008. N.T. at 19-20; R.R. at 31a-32a. He did not work after that until June 8, 2008. He continued to have pain in the back and occasional headaches. N.T. at 24-25; R.R. at 36a-37a.
Claimant's attorney questioned Claimant about his work schedule:
Q: Tell the Judge what that entails? In other words, do you drive to your jobs or do you drive to an office?N.T. at 10-11; R.R. at 22a-23a.
A: I usually start in the morning. I drive directly to the office in Downingtown to pick up any paperwork for the day and any equipment assigned to be installed for the day.
Q: So do you go to the main office in Downingtown to pick up assignments for your day where you said that you're going out into the field to people's houses to install?
A: That's correct. Anything other than what they call standard equipment which would be things you would physically need to put into someone's house that day. But everything else is kept on the van.
Q: When you say standard equipment, like a cable splitter . . . you have that in the van?
A: Right.
Q: But if somebody gets like a new DVR and they want that installed, you go pick those up in the morning?
A: DVRs, cable modems and phone modems we have to physically pick up in the morning.
Claimant presented a report from Claimant's treating physician, William B. Funk, M.D. (Dr. Funk). Dr. Funk diagnosed Claimant with a cervical sprain and strain, and paraspinous, thoracic, and lumbar strains as a result of the April 17, 2008, motor vehicle accident. Dr. Funk opined that Claimant made steady progress in all areas except the mid-back. Report of William B. Funk, M.D., December 5, 2008, (Dr. Funk Report) at 1. His diagnosis after an examination of Claimant on December 5, 2008, was "persistence of paraspinous muscle spasming and pain in the thoracic area consistent with persistence of thoracic strain but with resolved cervical strain and sprain and resolved lumbar strain." Dr. Funk Report at 2.
Employer presented the medical report of John D. Caggiano, M.D. (Dr. Caggiano). Dr. Caggiano examined Claimant on March 16, 2009, took a history, and reviewed medical records. Dr. Caggiano opined that Claimant suffered from thoracic pain which was causally related to the automobile accident of April 17, 2008. Dr. Caggiano opined that "The claimant may well have reached maximum medical improvement. In that the exact anatomic cause for his current problem is yet to be defined, it is difficult to say with certainty that the claimant will continue to improve or whether he will not improve at all. Either way, the claimant is able to perform his regular duty status . . . ." Report of John D. Caggiano, M.D., March 16, 2009, at 2-3.
The WCJ granted the claim petition and found that Claimant was totally disabled from April 17, 2008, through June 7, 2008. The WCJ suspended benefits as of June 8, 2008. The WCJ found Claimant and Dr. Funk credible. The WCJ further found that Dr. Caggiano's opinion partially corroborated Dr. Funk's. The WCJ made the following relevant conclusion:
1. Claimant has met his burden to establish that his injury occurred within the course and scope of his employment. Claimant established that he is a graveling employee' with no fixed place of work. Although Claimant reported to the Downingtown office, he did the bulk of his work at multiple customer locations, and on occasion drove directly between his home and these locations. Claimant's presence at the office was limited
to picking up paperwork and equipment for installation and was no more than 15 minutes per day. Accordingly, Claimant is a traveling employee and injuries occurring during his travel to and from work are recoverable. . . . (Citation omitted).WCJ's Decision, June 18, 2009, Conclusion of Law No. 1 at 5; R.R. at 11a.
Employer appealed to the Board.
Shortly thereafter, on July 6, 2009, Claimant petitioned to reinstate benefits and alleged that his condition worsened to the point where he could no longer do his job. The WCJ granted the reinstatement petition and awarded Claimant total disability benefits from June 19, 2009, through October 4, 2009. The WCJ suspended benefits as of October 4, 2009. The WCJ awarded Employer a credit for short term disability benefits paid to Claimant.
Claimant also filed a penalty petition. The WCJ denied the petition. Claimant did not appeal. The penalty petition is not before this Court.
Employer appealed to the Board.
The Board consolidated the two appeals and affirmed.
Employer did not challenge the reinstatement of benefits. However, if this Court determines that Claimant was not entitled to benefits initially, he would not be entitled to a reinstatement.
Employer contends that at the time of his injury Claimant was commuting to work and was not in the course and scope of his employment.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact were supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
Section 301(c)(1) of the Workers' Compensation Act, 77 P.S. §411(1), defines an injury sustained while the employee is "engaged in the furtherance of the business affairs of the employer" as an injury occurring in the course and scope of employment. The question of whether an employee was injured in the course of his employment is a question of law to be determined from the findings of fact. Tredyffrin-Easttown School Dist. v. Breyer, 408 A.2d 1194 (Pa. Cmwlth. 1979). In general an employee is not eligible for benefits while injured going to or from work. Eberle v. Union Dental Co., 390 Pa. 112, 134 A.2d 559 (1957). In Setley v. Workmen's Compensation Appeal Board (Kawecki Berylco Indus.) 451 A.2d 10 (Pa. Cmwlth. 1982), this Court stated the following four exceptions to this "going and coming" rule: "1) claimant's employment contract includes transportation to and from work; 2) claimant has no fixed place of work; 3) claimant is on a special mission for employer; or 4) special circumstances are such that claimant was furthering the business of the employer."
Act of June 2, 1915, P.L. 736, as amended.
The fact that an employer has a central office where an employee sometimes works is not controlling. Beaver and Casey, Inc. v. Workmen's Compensation Appeal Board (Soliday), 661 A.2d 40 (Pa. Cmwlth. 1995). When a traveling employee is injured after setting out on the business of his employer it is presumed that he was furthering his employer's business at the time of his injury. The employer then bears the burden of rebutting that presumption by proving that the employee's actions were so foreign and removed from his usual employment that they constituted an abandonment of employment. Roman v. Workmen's Compensation Appeal Board (Department of Environmental Resources), 616 A.2d 128 (Pa. Cmwlth. 1992).
Here, the WCJ determined Claimant established that, though he was injured on his way to work, he had no fixed place of work. Claimant credibly testified that he worked as a telephone, internet, and television technician and was provided with an Employer-owned van which he took to and from work. While he generally drove to Employer's office to pick up paperwork and/or special equipment he might need, he then spent the rest of his day traveling to and from customer locations. He then typically returned to the office at the end of the day to drop off paperwork.
The WCJ as the ultimate finder of fact in workers' compensation cases has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). This Court will not disturb a WCJ's finding when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995).
Based on this credible testimony, this Court finds no error on the part of the Board when it affirmed the WCJ's determination that Claimant was a traveling employee with no fixed workplace who was injured in the course and scope of his employment. Though Claimant usually reported to Employer's office, he was there for no more than fifteen minutes. He then spent his whole workday traveling to install services or make repairs for Employer's customers. The fact that he initially stopped at Employer's office is not dispositive. See Toal v. Workers' Compensation Appeal Board (Sternick), 814 A.2d 837 (Pa. Cmwlth. 2003).
This Court notes that Employer made no attempt to rebut the presumption that, once it was established that Claimant was a traveling employee, Claimant was engaged in activities so foreign to Employer's interests to constitute an abandonment of employment. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 18th day of April, 2012, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge