September 14, 2021

Course and Scope of Employment defense rejected by Commonwealth Court of Pennsylvania

It is well established that under the “coming and going rule,” injuries sustained while an employee is traveling to and from his place of employment are not compensable. In Stewart v. WCAB (Bravo Group Services, Inc.), No. 812 CD 2020, the WCJ denied a Claim Petition concluding that Claimant was not injured in the course and scope of his employment.

By way of background, Claimant’s injury occurred at the Glaxo Smith Kline building in King of Prussia, PA where Claimant worked as an employee of Bravo Group Services, Inc. which provides janitorial services to Smith Kline. Claimant filed a Claim Petition alleging that he sustained an injury to his left foot and ankle on March 22, 2018, while exiting a shuttle van in front of the Smith Kline building before beginning his shift. Claimant testified that Employer assigned him to the Smith Kline building, where he worked from 5:00 p.m. to 10:00 p.m. Claimant commuted to work each day by public transportation. At Gulph Mills Station, Claimant took a shuttle operated by Smith Kline to his assigned building. At the end of his shift, Claimant returned to the Gulph Mills Station on a shuttle that was provided and operated by the Employer. This incident occurred at 4:32 p.m., before Claimant had clocked in for work.

After reviewing the evidence, the WCJ found that Claimant was injured leaving the shuttle, which had stopped in front of the building where he worked. However, the WCJ concluded that the shuttle was not part of Employer’s “premises” for purposes of Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act and denied the claim.

Claimant filed an Appeal to the WCAB, which affirmed the WCJ’s Decision holding that because Claimant sustained an injury while commuting to work on a shuttle bus that was not owned or controlled by Employer, his injury was not compensable under the “coming and going” rule. Claimant appealed.

The Commonwealth Court analyzed the facts of this case with the existing case law providing that the critical factor is not the employer’s title to or control over the area, but rather the fact that the employer had caused the area to be used by employees in performance of their assigned tasks. The case law confirms that areas may be considered part of the employer’s premises if they are integral to the employer’s workplace or constitute a reasonable means of ingress to or egress from the workplace. The Court held that a reasonable means of ingress or egress can include a moving vehicle. As such, the Court held that the “coming and going rule” does not bar a claimant from receiving workers’ compensation benefits when he sustained the injury upon his arrival to begin his shift, was required by the nature of his employment to be present in the area where he was injured, and was entering the workplace a reasonable time before his shift. The Court further reasoned that Claimant had already arrived at the building at the time of his injury and thus, he was no longer commuting. The Court determined that the WCAB erred in its application of the “coming and going rule.” Interestingly, the Court found that Claimant slipped and fell a few feet from the front entrance of the building, which was the place where the employer’s business or affairs are being carried on and the employee’s presence there was required by the nature of his employment. The Court reversed the WCAB’s adjudication and remanded for a determination of the amount of compensation benefits payable with respect to Claimant’s work injury.

These types of cases are very fact specific. In order to successfully defend a claim utilizing the “coming and going rule”, the specific facts must be analyzed under the test set forth in the case law to determine if injuries were sustained in the course of employment and are compensable under Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act.

Zachary M. Rubinich is a partner in our Philadelphia office. He focuses his practice on the defense of insurance carriers, self-insured entities and third-party administrators against workers’ compensation claims in Pennsylvania. Based on his extensive experience, the Pennsylvania Bar Association Workers’ Compensation Law Section has certified him as Specialist in the practice of workers’ compensation law Zach has handled all aspects of litigation before workers’ compensation judges, the Workers’ Compensation Appeal Board, the Commonwealth Court and the Pennsylvania Supreme Court. Zach has been appointed to the following American Bar Association Tort Trial and Insurance Practice (TIPS) leadership positions: Vice-Chair of the Litigation and Trial Practice Committee; Vice-Chair of the Appellate Advocacy Committee; member of the Ethics and Professionalism Standing Committee; and member of the CLE Board Committee. He is the Past Chair of the American Bar Association’s Tort Trial and Insurance Practice (TIPS) Workers’ Compensation and Employers’ Liability Law Committee from 2018-2019. He served as Vice-Chair of this committee for 2015-2016, 2016-2017 and 2017-2018. In addition, Zach served as Vice-Chair of the 2017-2018 American Bar Association Standing Committee for Diversity and Inclusion. Zach has been rated AV Preeminent by Martindale-Hubbell for the eighth consecutive year in 2020. He has been selected as a 2021 Pennsylvania Super Lawyer by Super Lawyers. He was selected as a Pennsylvania Rising Star by Super Lawyers from 2010 to 2014. He was selected as an International Advisory Experts (IAE) Award recipient in 2019 for his accomplishments as a workers’ compensation attorney in Pennsylvania. In addition, he has been selected as a Fellow of the College of Workers’ Compensation Lawyers Class of 2020.

Zach can be reached directly at: (215) 575-4340 •

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