IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mandeep Rana, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Asha Corporation), : No. 1401 C.D. 2016

Respondent : Submitted: February 3, 2017

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION

BY JUDGE COSGROVE FILED: September 29, 2017

Karan and Pushpa Singh (Claimants) petition for review of an August

10, 2016 order of the Workers ’ Compen sation Appeal Board (Board), denying

compensation as dependents under a fatal claim petition. Upon review, we reverse

and remand.

Claimants are the parents of Mandeep Rana (Decedent). At the time

of his death, Decedent was employed by Asha Corporation (Employer) as a

manager

- in

- training. Employer is a franchisee of Dunkin’ Donuts, with three

operations located in Wyncote, Horsham, and Hatfield, all in Pennsylvania.

During Decedent’s period of employment, which commenced on October 1, 2010

and ended No vember 14, 2010

, 1 Decedent was assigned primarily to the Wyncote

1 Decedent worked for Employer during a prior period, from 2008

- 2009. He returned to

India for a time, obtained a student visa, and came back to the United States to further his

education.2

location with the expectation he would respond to operational issues at the other

locations. Such operational issues would include delivering products among the

three locations and covering for sick employees.

On November 12, 2010

, Employer called Decedent around 10 p

. m

.

and left a message informing him a kitchen employee at the Hatfield location had

fallen ill while completing his scheduled shift. Decedent called Employer back

and said he would investigate the situation. Decedent and another employee were

involved in a motor vehicle accident en route to the Hatfield location. Two days

later, Decedent died due to injuries sustained in the accident.

On August 14, 2012, Claimants file d a Fatal Claim Petition under the

Workers’ Compensation Act (Act) 2 for compensation as dependents of Decedent.

After a hearing, the Workers’ Compensation Judge (WCJ) found that, at the time

of the accident, Decedent was furthering Employer’s business and was on a special

assignment for Employer. Thus, Decedent was in the course and scope of his

employment at the time of the accident and Claimants were entitled to collect

compensation. The WCJ made further findings that reciprocity exists between the

Uni ted States and India pursuant to workers’ compensation laws of India as

required by the Act and Claimants were dependents of Decedent, and calculated

Decedent’s weekly wage and corresponding compensation rate. The WCJ also

ordered Employer to pay any and all medical expenses incurred for treatment of

Decedent and to reimburse the Department of Public Welfare (DPW) $71,330.84,

the amount of a lien held by DPW.

Employer appealed to the Board on the basis Decedent was

performing his regular job duties. Employer also argued the WCJ erred in the

2 Act of June 2, 1915, P.L. 736, as amended

, 77 P.S. §§1

- 1041.4, 25 01

- 2708.3

following: calcul ating Decedent’s average weekly wage and compensation rate;

finding reciprocity exists with India, as required by Section 310 of the Act ; 3

finding Decedent’s parents were dependents; failing to account for Employer’s

subrogation interest against a third

- party recovery made by Decedent’s parents;

and ordering payment of the lien held by the DPW which had already been paid

out of the third

- par ty recovery. The Board reversed the decision of the WCJ,

concluding Decedent was performing his regular job duties and declining to

address the remainder of Employer’s arguments. This appeal followed. 4

The sole issue presented to this Court is whether Decedent was in the

course and scope of his employment when he was involved in the fatal automobile

accident.

Claimants argue the Board erred when it reversed the decision of the

WCJ because Decedent wa s injured while in the course and scope of his

employment. (Claimants’ Brief at 10.) Decedent’s conduct and duties on the date

of the accident satisfy an exception to the general rule that an employee may not be

compensated for an injury suffered while c ommuting to and from work. Id. at 16.

Specifically, Claimants contend Decedent had no fixed place of employment and

3 Section 310 provides in relevant part that “[a]lien widows, children, and parents shall be

entitled to compensation so long as compensation benefits are granted residents of the United

States under the laws of the country in which the widow, chi ldren, or parent resides. 77 P.S. §

563.

4 The Court’s scope of review on appeal of an administrative agency adjudication,

regardless of which party prevailed below, is limited to determining whether there has been a

constitutional violation or an error of law and whether findings of fact are supported by

substantial evidence. Whelen v. Workmen’s Compensation Appeal Board ( F.H. Sparks Co. of

Pa., Inc.)

, 532 A.2d 65, 66 (Pa. Cmwlth. 1987).4

his injuries sustained while en route to the Hatfield location are compensable. Id.

at 14.

Employer responds that the WCJ’s findings do not support a

conclusion that Decedent was on a special assignment/mission. (Employer’s Brief

at 8.) Further, Decedent regularly worked at any one of the three locations and he

therefore had a fixed place of employment. Id. at 5. Employer also clai ms that

Decedent was not on a special mission for Employer as returning to the stores after

hours was a normal part of Decedent’s duties as a manager. Id. at 11. As this was

a normal and routine part of his work duties, occurring at least once a week,

Em ployer argues that Decedent cannot be found to have been on a special mission

for the E mployer at the time of the accident. Id.

Under the “going and coming rule,” injuries sustained by an employee

while traveling to or from his place of work do not occ ur in the course of

employment and are therefore not compensable under the Act

. Rox Coal Co. v.

Workers’ Compensation Appeal Board (Snizaski)

, 768 A.2d 384, 386 (Pa. Cmwlth.

2001). There are four recognized exceptions to this rule. An injury sustained

w hile commuting to work “may be compensable if: (1) the employee’s contract

includes transportation to and from work; (2) the employee has no fixed place of

work; (3) the claimant is on special assignment for the employer; or (4) special

circumstances are such that the claimant was furthering the business of the

employer.” Id. These exceptions are intended to cover situations in which an

employee is traveling to or from work but, in doing so, continues to act in the

course of employment. Peer v. Workmen’s Compensation Appeal Board (B & W

Const.)

, 503 A.2d 1096, 1098 (Pa. Cmwlth. 1986).5 Claimants argue the Board erred in reversing the decision of the WCJ

because, even were Decedent not on a special mission for Employer, the Board

could have affirmed on th e basis that Decedent had no fixed place of employment.

(Claimants’ Brief at 16

- 17.) Citing multiple decisions of this Court, Claimants

assert a reviewing court (or agency acting as an appellate tribunal) may affirm an

order of an administrative tribunal where grounds for affirmance exist, even if the

reasons relied on by that tribunal were incorrect. Id. at 10

- 11.

Employer relies on Davis v. Workmen’s Compensation Appeal Board

(Foodarama)

, 398 A.2d 1105 (Pa. Cmwlth. 1979), in support of its argument t hat,

because Decedent was expected to work in any one of Employer’s three locations,

he had a fixed place of employment.

First we address whether Decedent had a fixed place of employment,

as that issue is the crux of Claimants’ argument.

Employer is correct that, in Davis

, this Court found a decedent had a

fixed place of employment when he regularly worked at multiple locations of the

employer. However, we believe Davis is distinguishable from the case sub judice

.

The decedent in Davis was headed ho me when he was involved in a fatal

automobile accident. The Court noted that “[w]hen he left the Bethlehem store he

had no further obligation to his employer that evening and was simply en route

home when the accident occurred.” Davis

, 398 A.2d at 1106. The decedent in

Davis received extra compensation for having worked “in a store other than his

regular one...” per the terms of his employment contract. Id. Instantly, Decedent

had not yet fulfilled his obligations to Employer and the record indicates Dec edent

had no employment contract.6 This Court has analyzed course of employment cases in two ways,

depending on whether the claimant is a traveling or stationary employee. Jamison

v. Workers’ Compensation Appeal Board (Gallagher Home Health Services)

, 955

A.2d 494, 498 (Pa. Cmwlth. 2008). What constitutes “scope and course of

employment” is broader for traveling employees than for stationary employees,

and it includes driving to any appointment for the employer. Id. Whether a

claimant is a traveling employee is determined on a case by case basis, and the

Court must consider whether the claimant’s job duties involve travel, whether the

claimant works on the employer’s premises or whether the claimant has no fixed

place of work. Holler v. Workers’ Comp ensation Appeal Board (Tri Wire

Engineering Solutions, Inc.)

, 104 A.3d 68, 71 (Pa. Cmwlth. 2014).

The parties do not dispute Decedent was manager of the Wyncote

store, and we must conclude, as to the Wyncote store, Decedent was a stationary

employee. With regard to the other stores, the facts we can glean from the record

are thus. Harshad Patel (Patel), Employer’s owner and sole shareholder, testified

at a February 27, 2013 deposition. While his employees would work at other

locations, if needed, Pat el testified that “most of the managers don’t clock in or

clock out.” (2/27/2013 Deposition of Patel at 14.) When asked whether Decedent

made any prior trips to the Hatfield store, Patel stated he was “sure he did, yes.”

Id. at 21. Employees worked at other locations “if needed, and if and when

needed.” Id. at 13. Decedent would at times accompany Patel to “check out” the

business and attend meetings. Id. at 21. Such meetings would take place at one of

the franchise stores or a t a corporate location or hotel. Id. at 30.

Patel’s workers’ compensation insurance carrier interviewed him on

February 28, 2011. A summary of this interview was submitted as an exhibit at the7

February 27, 2013 deposition. Patel was granted the oppo rtunity to review the

statement and, other than a few insignificant details

, 5 Patel acknowledged it was

true and accurate to the best of his knowledge. ( S .R.R. at 3b.) During the

interview, Patel confirmed he had no formal policy for employees being on call

and no formal on call schedule exists. (S. R .R. at 20b.)

Kashyapsinh Jedeja (Jedeja) was Decedent’s roommate and the other

employee with Decedent the night of the accident. (12/14/2012 Deposition of

Jedeja at 12.) He managed the Horsham locatio n and worked for Employer from

2009 through January 2011. Id. at 10

- 12. Prior to that night, Jedeja had been to

the Hatfield store once to help out. Id. at 26. When asked if it was something he

would typically do, Jedeja answered in the negative. Id.

Having reviewed the record, we conclude there is not sufficient

evidence to support a conclusion that Decedent was a stationary employee in

regards to Employer’s locations in Hatfield and Horsham. While Patel testified he

believed Decedent had been t o the Hatfield location prior to the night of the

accident, there is no record evidence to corroborate this, especially in light of the

short duration of Decedent’s employment, which was just shy of six weeks. At no

time was it suggested Decedent had ever been to the Horsham location during

those six weeks. Accordingly, we conclude Decedent was a traveling employee.

Having thus determined Decedent was a traveling employee,

Decedent is entitled to a presumption that he was working for Employer during the

5 Patel identified two errors in the summary. First, the produ ction schedule would at

times start earlier than the stated 9:00 p.m. time frame. ( Supplemental Reproduced Record

( S.R.R. ) at 2b.) Second, the employee who was in the car with Decedent at the time of the

accident terminated his employment with Patel in J anuary 2011, and not October 2010, as

reflected in the summary. Id.8

drive from his home to the Hatfield location. Holler

, 104 A.3d at 72. To rebut this

presumption, Employer had to establish Decedent’s actions at the time of the

accident were “so foreign to and removed from” his usual employment th at those

actions const ituted abandonment of employment. Id. The record before us

contains no such evidence. As a result, Decedent’s injuries were sustained in the

scope and course of his employment and are compensable under the Act.

Even were this Court to conclude Dec edent was a stationary

employee with a fixed place of employment at the Horsham and Hatfield locations,

Decedent’s injuries could be deemed compensable. As a stationary employee,

Decedent would have been on a special assignment for his employer at the tim e of

the accident.

The WCJ granted benefits following a finding that Decedent was

executing a special mission for the E mployer outside of the E mployee’s regular

duties. (R eproduced Record (R .R. ) at 23a.) In reversing the decision of the WCJ,

the Board concluded Decedent was performing his regular job duties and,

therefore, the accident which occurred while Decedent was en route to the Hatfield

location did not fall within one of the exceptions to the going and coming rule.

(R.R. at 9a.)

At the Feb ruary 27, 2013 deposition, Patel testified to the following.

On the day of the accident, Patel and Decedent had “back and forth

communication” about an issue with the Hatfield location. (2/27/13 Deposition of

Patel at 10.) Decedent had already completed his morning shift and would not

typically be driving to the Hatfield store at 10:00 p.m. Id

. Decedent offered to go

to the store and investigate the situation and told Patel not to worry about it. Id. at

22. The car Decedent drove was owned by Patel. Id. at 17. Decedent used the car9

personally but also to run errands for the business. Id. at 18. Personal vehicles

were generally used by employees for such errands, but for deliveries and

“something bigger,” Employer had a company truck available for use. Id. at 19.

On the night of the accident, Decedent went to the Hatfield location “to check out

and see if everything was okay.” Id. at 15. In such situations, someone in

Decedent’s position would typically assist an employee in getting medication o r

call in another employee to finish the baking. Id. at 24.

Section 301(c) of the Act permits compensation to claimants who are

injured when “actually engaged in the furtherance of the business or affairs of the

employer.” 77 P.S. § 411(1). This phr ase must be liberally construed in

accordance with the humanitarian purpose of the Act. Simko v. Workers’

Compensation Appeal Board (U.S. Steel Corp

- Edgar Thomson Works)

, 101 A.3d

1239, 1242 (Pa. Cmwlth. 2014). A claimant must still show he was acti ng fo r the

benefit and convenience of the employer and not simply commuting to or from his

place of employment. Id. A claimant qualifies for the special assignment

exception when acting in accordance with responsibilities as an “on call”

employee. See City of Philadelphia v. Workers’ Compensation Appeal Board

(Stewart)

, 728 A.2d 431

, 433 (Pa. Cmwlth. 1999).

In the case sub judice

, Decedent, having already worked his regular

shift, was traveling to the Hatfield store in lieu of Patel. Decedent was

invest igating the situation on behalf of Patel to determine whether additional action

needed to be taken. In finding Decedent was on a “special assignment” for

Employer, the WCJ noted that Patel knew and approved of Decedent traveling to

the Hatfield location. (R.R. at 23a.)10 Clearly, Employer expected Decedent to travel to the Hatfield location

and investigate any operational issues. After receiving a call that an employee was

ill, Patel called Decedent and left him a message. (2/27/13 Deposition of Patel a t

21

- 22.) Implicit in this action is a request that Decedent travel to the Hatfield

location. Otherwise, Patel would have driven there himself. Id. at 42. Based on

the facts before us, the Board erred in concluding Decedent was not on a special

missio n for Employer. Rather, if he were a stationary employee, the record

supports the opposite conclusion. Decedent’s actions fall within the third

exception to the going and coming rule

. H e was on a special mission for his

Employer and thus acting in the s cope and course of his employment at the time of

the fatal accident. City of Philadelphia.

Employer concludes its brief by arguing that, should this Court

reverse the decision of the Board on the issue of scope and course of employment,

the matter sho uld be remanded to the Board to address Employer’s issues which

the Board declined to reach. (Employer’s Brief at 13

- 14.) As Employer was not

an aggrieved party, it had no right to appeal the Board’s order. See Pa.R.A.P. 501.

We therefore agree a reman d is required to resolve the following issues:

1. Whether the WCJ erred in the calculation of Decedent’s

average weekly wage and compensation rate;

2. Whether the WCJ erred in finding reciprocity exists for a

United States citizen dependent pursuant to the worke rs’

compensation laws of India;

3. Whether Decedent’s parents failed to establish they received

a substantial portion of their support from Decedent at the

time of his death and were substantially dependent upon

him;11 4. Whether the WCJ erred by failing to account for Employer’s

subrogation interest against a third

- party recovery made by

Decedent’s parents; and

5. Whether the WCJ erred in ordering payment of a DPW lien

which was already paid out of the third

- party recovery.

Accordingly, we reverse the order of the Board with regard to its

conclusion that the circumstances surrounding Decedent’s motor vehicle accident

do not fall within an exception to the going and coming rule and remand for

proceedings consistent with this opinion.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mandeep Rana, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Asha Corporation), : No. 1401 C.D. 2016

Respondent :

O R D E R

AND NOW, this 29 th day of September, 2017, the order of the

Workers’ Compensation Appeal Board is hereby r eversed and we remand this

matter for proceedings consistent with this opinion. Jurisdiction is relinquished.

___________________________ JOSEPH M. COSGROVE, Judge