Jorge Martinez v. Lewis Tree Service (Workers’ Compensation Appeal Board); No. 298 C.D. 2023; filed Feb. 8, 2024; Senior Judge Leavitt
The claimant worked as a crew leader for the employer’s tree-trimming business. On October 1, 2021, while driving home in his personal vehicle at the end of the workday, the claimant sustained injuries in a motor vehicle accident. He then filed a Claim Petition, alleging that his injuries were compensable because he was a traveling employee with no fixed place of business. The workers’ compensation judge bifurcated the proceedings to decide the issue of whether the claimant was in the course and scope of his employment at the time of the accident.
The claimant testified that each morning he left his house in his personal vehicle and drove to the yard, got into one of the employer’s trucks, and drove to the work site. At the end of each day, he returned to the yard, where he picked up his vehicle to drive home. The location of the yard changed several times per year, depending on the location of the jobs. The employer did not have a fixed and permanent yard for its trucks and equipment. The claimant followed this routine on the date of the motor vehicle accident. On his way home in his vehicle, the claimant was rear-ended.
The employer testified that its employees are not compensated for their commuting time or expenses. The employer also testified that approximately six different yards are used. The yards are not owned by the employer, they are leased spaces to park the trucks. Because the claimant was a driver, he was assigned jobs that needed a bucket truck. The claimant was part of a group that trimmed trees around power lines.
The judge denied the Claim Petition, concluding the claimant was not in the course and scope of his employment at the time of injury. The claimant appealed to the Workers’ Compensation Appeal Board, which affirmed. Both the judge and the Appeal Board found that the injuries sustained by the claimant from the motor vehicle accident that occurred while he was commuting to home from work placed him outside the course and scope of employment and that there were no exceptions that applied.
The claimant appealed to the Commonwealth Court, arguing that one of the exceptions to the Coming and Going Rule applied to him because he was a traveling employee with no fixed place of work and, therefore, was entitled to a presumption that he was in the course and scope of employment while driving home from work. According to the claimant, his position as a crew leader required him to pick up a company vehicle at a “yard” and drive the vehicle to various job sites where he trimmed trees. The employer countered that its “yard” gave the claimant a fixed place to work.
The court affirmed the decisions below and dismissed the claimant’s appeal. In doing so, they noted that the claimant drove his personal vehicle to and from his home, his workday started at his employer’s yard and not his home, the claimant was not reimbursed for travel expenses and did not store equipment at home; therefore, claimant had a fixed place of work, albeit one of short duration. According to the court, a change of work location during the day, or from day to day, does not make a claimant a traveling employee.
