IN THE COMMONWEALTH COURT OF PENSYLVANIA

Jorge Martinez, :

Petitioner :

:

v. : No. 298 C.D. 2023

: Argued: December 4, 2023 Lewis Tree Service (Workers ’ : Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE ANNE E. COVEY

, Judge

HONORABLE STACY WALLACE , Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION BY SENIOR JUDGE LEAVITT FILED: February 8, 2024

Jorge Martinez (Claimant) petitions for review of an adjudication of the

Workers’ Compensation Appeal Board (Board) that denied his claim petition. In

doing so, the Board affirmed the decision of the Workers’ Compensation Judge

(WCJ) that Claimant ’s injuries , which were sustained while commuting

, were not
compensable under the Workers’ Compensation Act (Act)

. 1 Claimant contends that

in his work as a tree trimmer, he was a traveling employee with no fixed place of

work

, and, thus, his injuries were sustained in the course of his employment. For

the reasons t hat follow, we affirm the Board

.

Claimant worked as a crew leader in Employer’s tree

- trimming

business. Claimant’s duties included supervising workers, trimming trees, and

driving Employer’s trucks to job sites . On October 1, 2021, while driving home in

his personal vehicle at the end of his workday, Claimant was involved in a motor

vehicle accident in which he sustained injuries.

1 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§1

- 1041.1, 2501

- 2710.2 On October 22, 2021, Claimant filed a cla i m petition under t h e Act

alleging that he sustained injuries to his “[r]ight shoulder, right wrist, right hip and

neck” in the course of his employment . Reproduced Record at 7 (R.R. __).

Claimant’s petition asserted that he wa s “a traveling employee with no fixed place

of business

. ” Id . Employer denied all allegations, and hearings were held before

the WCJ. With the agreement of the parties, the WCJ bifurcated the proceeding to

decide, first, whether Claimant was acting within the course and scope of his

employment when he was injured

.

Claimant testified in person before the WCJ on March 2, 2022. He

explained that as a crew leader

, he assigned tasks, trimm ed trees, and drove

Employer’s trucks to w ork sites. Each morning, Claimant left his house ; dr o ve his

personal vehicle to the “yard” where Employer’s trucks were parked ; g o t into one of

Employer’s truck s; and dr o ve to the work site. At the end of the workday, he

returned to the yard where he picked up his personal vehicle for the drive home. The

location of Employer’s yard changed several times a year, depending on the location

of the tree trimming jobs. Employ er did not have a fixed and permanent yard for its

trucks and equipment.

Claimant testified that on the morning of October 1, 2021, his workday

fo llowed this above

- described routine. He parked his vehicle at Employer’s yard

and then began his workday , using Employer’s truck . At 4:00 p.m., he drove the

truck back to the yard to pick up his personal vehicle. On his way home

, his vehicle

was rear ended , causing injuries. He has not worked since October 2021. Currently,

Claimant receives a monthly disability income payment from his automobile

insurance company, which also paid his medical bills.3 On behalf of Employer, Jeanette Gonzalez testified. Currently, she

works as a general foreman at Employer. Prior to that, she worked as “a permission

specialist,” which required her to “get work for the employees” and inform them

where “ they needed to go for the day .” Notes of Testimony (N.T.), 4/27/2022, at 8;

R.R. 111. She testified that Employer uses a parking lot, known as the “yard,” to

store its vehicles and equipment. Employees drive their personal vehicles to the yard

and then use a company tr uck to travel to the job site. Gonzalez testified that

Employer does not compensate employees for their commuting time or expenses.

Gonzalez testified that on the day of Claimant’s accident, he was

assigned the job of moving Employer’s trucks and equipment from a yard in

Hanover to a new yard in Gettysburg. Claimant left the yard before the end of his

workday

. Gonzalez explained that the location of the yard depends “on the

circuit” they are “working on at the area.” N.T., 4/27/2022, at 12; R.R. 115. Since

2018, Employer has used approximately six different yards. She stat ed that

“[s]ometimes we go back to the exact same yard if we’re going to redo that circuit

again. And if it’s a totally different circuit, that’s where we have to find a totally

brand [] new yard.” Id . Employer does not own the yards. Employer leases space to

park the trucks for the require d period of time

. Gonzalez explained that it was part

of her job to find the yards , which had to be large enough to accommodate bucket

trucks, chippers, and employee vehicles . Gonzalez testified that Claimant was part

of a group that trimmed trees around power lines. The group’s circuit could be

located within “20 miles” or “100 miles” of the yard. N.T., 4/27/2022, at 17; R.R.

120. Because Claimant was a driver, he went to the jobs that needed a bucket truck.4 The WCJ denied the claim petition, concluding that Claimant was not

acting within the course and scope of his employment at the time of his injury. In

reaching this conclusion, the WCJ credited the testimony of both Claimant and

Gonzalez

, noting that the two were “remarkably in agreement on every critical

point.” WCJ Decision at 5, Finding of Fact No. 7. Both testified that on October 1,

2021, Claimant had completed his work duties for the day, had returned the company

truck to the yard, and was on his way home in his personal vehicle when the accident

occurred. The WCJ concluded that these facts placed Claimant outside the course

and scope of employment when the accident occurred because

, generally

, commuting to or from work does not constitute employment. Further, Claimant’s

evidence did not establish an exception to th is general rule

.

Claimant appealed to the Board, which affirmed the WCJ’s decision

. The Board explained that an injury sustained while an employee is commuting does

not arise in the course of employment. There is an exception for the situation where

the claimant’s employer provides transportation to and from work or where the

claimant has no fixed place of work

, i s on a special assignment for the employer

, or

is furthering the business of the employer in some fashion

. Where an exception is

established

, the claimant will be found to be acting in the course of employment

while traveling to and from work. However, Claimant ’s evidence did not establish

any of the above

- enumerated exceptions. To the contrary, because Claimant

reported to work at a fixed location, albeit for a short and indefinite period of time,

the Board concluded that he had a fixed place of work.

Claimant petitioned for this Court’s review.5 On appeal, 2 Claimant raises three issues , which we combine for clarity

. First, Claimant argues that he established that he wa s a traveling employee and, thus,

was entitled to a presumption that he was in the course and scope of employment

while driving home from work. Second , Claimant argues that Employer did not

rebut the presumption that , as a traveling employee, he was in the course and scope

of employment when injured

.

We begin with a review of the applicable legal principles. To be

eligible for compensation, an injured employee must establish that his injury

occurred in the course of employment. Section 301(c)(1) of the Act states, in

pertinent part, as follows:

The terms “injury” and “personal injury,” as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, except as provided under subsection (f), arising in the course of his employment and related thereto

. . . . The term “ injury arising in the course of his employment ,”
as used in this article .

. . shall include all other 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, and shall include all injuries caused by
the condition of the premises or by the operation of the employer ’ s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which
the employer ’ s business or affairs are being carried on, the employe ’ s presence thereon being required by the nature of his employment.

77 P.S. §411(1) (emphasis added).

2 This Court’s review of a workers’ compensation adjudication determines whether an error of law or a constitutional violation was committed or whether the findings of fact are supported by substantial, competent evidence. Myers v. Workers’ Compensation Appeal Board (University of Pennsylvania and Alexsis, Inc.) , 782 A.2d 1108, 1110 n.1 (Pa. Cmwlth. 2001).6 Section 301(c)(1) has been construed to mean that an injury arises in

the course of employment in two distinct situations. U.S. Airways, Inc. v. Workers’

Compensation Appeal Board (Bockelman) , 179 A.3d 1177, 1179

- 80 (Pa. Cmwlth.

2018). First, an injury is compensable if it occurs while the claimant is furthering

the business or affairs of h is employer, without regard to where the injury occurs.

Second, the injury is compensable if it occurs on the employer’s premises and the

claimant is required to be there

. 3

Generally, under what is known as the “coming and going” rule,

injuries sustained during an employee’s commute are not compensable because the

employee is neither on the employer ’ s premises nor engaged in the furtherance of

the employer ’ s affairs. Peer v. Workmen ’ s Compensation Appeal Board (B & W

Construction)

, 503 A.2d 1096, 1098 (Pa. Cmwlth. 1986)

. However, there are

exceptions to this rule. An injury sustained during an employee ’ s commute to or

from work can be compensable where any of the following circumstances apply:

(1) the employment contract included transportation to and from work;
(2) the employee has no fixed place of work;
(3) the employee is on special assignment for the employer; or
(4) special circumstances are such that the employee was furthering the business of the employer.

Bensing v. Workers ’ Compensation Appeal Board (James D. Morrissey, Inc.)

, 830

A.2d 1075, 1078 (Pa. Cmwlth. 2003) (qu oting Bradshaw v. Workmen’s

3 T he claimant must prove that (a) the premises were occupied or under the control of the employer, or where the employer’s business or affairs are being carried on; (b) he was required by the nature of his employment to be present on the employer’s premises; and (c) he sustained injuries caused by the condition of the premises o r by operation of the employer ’ s business or affairs thereon.
Workmen ’ s Compensation Appeal Board (Slaugenhaupt) v. United States Steel Corporation

, 376
A.2d 271, 273 (Pa. Cmwlth. 1977)

.7

Compensation Appeal Board (Bell Hearing Aid Center)

, 641 A.2d 664, 666 (Pa.

Cmwlth. 1994))

.

With these principles in mind, we turn to Claimant’s issues on appeal.

In his first issue, Claimant asserts that he is eligible for benefits under

the second exception to the coming and going rule. Claimant contends that he had

no fixed place of work because his position as a crew leader required him to “pick

up a company vehicle[] and drive that vehicle to job sites where he trimmed trees.”

Claimant Brief at 8

. He asserts that his situation is closely analogous to Holler v.

Workers’ Compensation Appeal Board (Tri Wire Engineering Solutions, Inc.) , 104

A.3d 68 (Pa. Cmwlth. 2014) . There

, the claimant was held to be a traveling

employee because his work as a cable technician required traveling from one

customer to another in a company vehicle

.

Employer counters that its “yard” gave Claimant a fixed place of work,

where he began and ended each workday , even though he spent a short time there.

In support, Employer cites Mansfield Brothers Painting v. Workers’ Compensation

Appeal Board (German) , 72 A.3d 842 (Pa. Cmwlth. 2013) , where the claimant

receiv ed job assignments at a union hall and was found to have a fixed place of

employment

. Employer also notes that Claimant’s situation is similar to that in Best

v. Workers’ Compensation Appeal Board ( C ity of Philadelphia) (Pa. Cmwlth., No.

1578 C.D. 2019, filed July 13, 2020) (unreported)

. 4 There

, the claimant “worked a

fixed route and started and ended her day [ at the same location ] ” and, thus, was not

a traveling employee. Id

. , slip op. at 11.

4 An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).8 T he determination of w hether a claimant is a traveling employee turns

on “ ‘ 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 , 104 A.3d at 71 (quoting Beaver & Casey, Inc. v. Work men ’ s Compensation

Appeal Board (Soliday)

, 661 A.2d 40, 42 (Pa. Cmwlth. 1995) )

. T he fact that “ an
employer has a central office at which an employee sometimes works is not

controlling.” Toal Associates v. Workers’ Compensation Appeal Board (Sternick)

,
814 A.2d 837, 841 (Pa. Cmwlth. 2003)

. In making any eligibility determination

,
“the Act must be liberally construed to effectuate its humanitarian objectives.”

Peterson v. Workmen ’ s Compensation Appeal Board (PRN Nursing Agency)

, 597

A.2d 1116, 1120 (Pa. 1 991)

. Accordingly , the course and scope of employment is

“necessarily broader” for traveling employees than otherwise

. Holler

, 104 A.3d at

71

.
Precedent has also addressed the “no fixed place of work” exception to

the coming and going rule. In Foster v. Work men ’ s Compensation Appeal Board

(Ritter Brothers , Inc. ) , 639 A.2d 935 (Pa. Cmwlth. 1994) , a journeyman carpenter

was assigned to work at a job site in a mall until completion of the carpentry project

. The employer did not pay for his travel time or expenses. T he claimant sought

compensation benefits for injuries he sustained in a motorcycle accident on his way

home from the job site . This Court held that the claimant had a fixed place of

employment at the mall site

, and, thus, he did not establish an exception to the

coming and going rule.

Similarly, in Mansfield Brothers , 72 A.3d 842, the claimant was a

painter who received job assignments at his union hall

. After his workday of

painting a university dormitory ended , the claimant fell on his way to the train9

station

. T he claimant was held not to be a traveling employee

. We explained that

“[t]he fact that a job has a discrete and limited duration does not make the employee

who holds it a travelling employee” with “no fixed place of work

. ” Id . at 848.

In Bes t

, slip op. at 8, the claimant asserted that she was a traveling

employee because her job consisted of traveling between recycling bins to empty

them

. This Court rejected the theory that this job description made her a traveling

employee

. Further, because the claimant’s work began and ended at the same place

each day, she had a fixed place of work.

An early case establishing the elements of a traveling employee was

Hohman v. George H. Soffel Co

. , 46 A.2d 475, 477 (Pa. 1946). In Hohman , the

claimant was a foreman plumber who worked assignments in and around Pittsburgh

.
He used his own automobile to travel between job sites and to carry the supplies he

needed for work . His employer reimbursed him for his travel expenses and delivered

supplies to his home, where the claimant stored them. While t raveling from his

home to a job site 20 miles from Pittsburgh , he was injured in an automobile

accident. Under these facts, the Pennsylvania Supreme Court concluded that the

claimant was furthering his employer’s business when injured and, thus, was entitled

to compensation. Likening the claimant’s situation to a traveling salesman , the

Supreme Court concluded that the claimant’s travel that day “was not the ordinary

travel of a workman between his home and his regular place of work.” Id

.

I n Holler

, 1 0 4 A.3d 68, the claimant was a cable technician, who

installed service for the employer’s customers at their home or business. The

employer provided t he claimant with the vehicle he used in his job

. 5 Each morning

,

5 Notably, whether an employer provides transportation is

, itself

, a separate basis for finding an employee to be a traveling employee. See Bensing , 830 A.2d at 1078 ( an exception to the coming10

he drove from his home to the employer’s office to pick up his daily assignments

and, then, spent the rest of the day on the road traveling. The claimant use d the

company vehicle for commuting but not for other personal purposes. One day, while

driving to the employer’s facility from home , the claimant ran off the road and struck

a telephone pole, sustaining significant injuries. T his Court held that t he claimant

was a traveling employee with no fixed place of work. 6

In the case sub judice , t he Board concluded that the facts were more

aligned with those in Mansfield Brothers and Foster than with those in Holler

. W e

discern no error in this conclusion

.

Claimant report ed to the yard , where the truck and equipment needed

to trim trees were stored . He then travel ed to the location of the tree trimming job

.
Unlike Holler , Claimant drove his personal vehicle, not Employer’s vehicle, to and

from his home, and Claimant’s workday started at Employer’s yard, not at his home

.
Unlike Hohman , Claimant was not reimbursed for travel expenses and did not store

equipment at his home. C laimant had a fixed place of work

, albeit one of short

duration

. See Foster

, 639 A.2d 935

, and Mansfield Brothers

, 72 A.3d 842

. A job

that takes place in more than one location during a work day does not make one a
traveling employee

. See Best

, slip op. at 10

- 11 ( traveling along a route to empty

recycling bins did not make the claimant a traveling employee ).

and going rule can be established where the employment contract include s transportation to and from work).

6 Holler relied on Comcast Corporation v. Workers’ Compensation Appeal Board (Clark) (Pa. Cmwlth., No. 1645 C.D. 2011, filed April 18, 2012) (unreported), which affirmed the Board’s decision that a cable technician was a traveling employee. The fact that the claimant initially stopped at his employer’s office was not dispositive because he was “ always on the road during the day except when he was at a customer’s house.” Clark , slip op. at 3 (emphasis added).11 A s our Supreme Court has held, a traveling employee is one whose

travel is essential to serving the employer’s interest. It explained:

The claimant’s travel, for which he was reimbursed by his employer, was an essential part of the expeditious performance
of the furtherance of the employer ’s business

, as was also the transportation of the supplies which were stored at his ho me for
his use in his work.

Hohman

, 46 A.2d at 477. Likewise, o ver

- the

- road truck drivers, traveling salesmen,

and construction site inspectors are occupations that make one a traveling employee

.
See

, e.g. , Roadway Express, Inc. v. Workmen’s Compensation Appeal Board

(Seeley) , 532 A.2d 1257 (Pa. Cmwlth. 1987) ( holding over

- the

- road truck driver to

be a traveling employee); Investors Diversified Services v. Workmen’s

Compensation Appeal Board (Howar) , 520 A.2d 958 (Pa. Cmwlth. 19 8 7) ( holding

insurance agent driving to customers to be a traveling employee); and Roman v.

Workmen’s Compensation Appeal Board (Department of Environmental

Resources) , 616 A.2d 128 (Pa. Cmwlth. 1992) ( holding an inspector driving to

construction sites throughout the state to be a traveling employee ).

A change of work location during the day or from day to day does not

make a c laimant a traveling employee. 7 LePore v. Workers ’ Compensation Appeal

Board (Full Phaze Construction, Inc.) (Pa. Cmwlth., No. 1494 C.D. 2015, filed May

11, 2016) (unreported)

, slip op. at 6 ; Best

, slip op. at 11

. Rather, the traveling

employee is one whose travel in his own vehicle is essential to furtherance of the

employer’s business along with “ his transportation of the supplies which were stored

7 Claimant offered copies of several text messages from two separate days that listed addresses and noted storm damage. Claimant did not provide any testimony or explanation about the content of the text messages, and the WCJ observed that the messages did not “directly relate to his assigned work on the date in question[

, i.e. , October 1, 2021].” WCJ Decision at 4, Finding of

Fact No. 5. They do not, in any case, establish that Claimant was a traveling employee.12

at his ho me for his use in his work.” Hohman

, 46 A.2d at 477. Simply

, Claimant

was not furthering the business of Employer while commuting home in his own

vehicle from the yard where he began his workday

.

For the foregoing reasons , we affirm the Board

. We conclude and hold

that Claimant ’s evidence did not establish that he was a traveling employee without

a fixed place of employment. Accordingly, he was not acting in the course and scope

of his employment when he was injured in a motor vehicle accident on his way home

from work

.

_____________________________________________ MARY HANNAH LEAVITT, President Judge EmeritaIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jorge Martinez, :

Petitioner :

:

v. : No. 298 C.D. 2023

: Lewis Tree Service (Workers ’ : Compensation Appeal Board), :

Respondent :

O R D E R

AND NOW this 8 th day of February , 202 4

, the adjudication of the

Workers’ Compensation Appeal Board dated March 9, 2023 , in the above

- captioned

matter is AFFIRMED.

_____________________________________________ MARY HANNAH LEAVITT, President Judge Emerita