IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ziegenfuss Drilling, Inc., :

Petitioner :

:

v. :

:

Workers' Compensation Appeal :

Board (Dailey), : No. 1975 C.D. 2014

Respondent : Argued: October 5, 2015

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McGINLEY FILED: December 18, 2015

Ziegenfuss Drilling, Inc. (Employer) petitions for review of the 

October 17, 2014, Order of the Workers’ Compensation Appeal Board (Board) 

which affirmed and modified the February 5, 2013, and May 16, 2012, Decisions 

and Orders of the Workers’ Compensation Judge’s (WCJ) grant of Ralph Dailey’s 

(Claimant) Claim Petition.

I. Background.

On May 11, 2011, Claimant filed a Claim Petition and alleged that he 

sustained a “right ankle fracture, torn ligament in left knee, dislocated hip, spleen 

injury, liver injury, fractured ribs, facial laceration...as a result of a work-related 

motor vehicle accident.” Claimant’s Claim Petition, May 11, 2011, at 1; 

Reproduced Record (R.R.) at 5a.
2

On June 10, 2011, Employer filed an Answer and alleged that 

Claimant was not entitled to compensation pursuant to the Workers’ Compensation 

Act (Act)1because he “was not in the course and scope of his employment at the 

time of the motor vehicle accident.” Employer’s Answer to Claim Petition, June 

10, 2011, at 1; R.R. at 8a.

II. Interim Order.

At the request of the parties, the Claim Petition was bifurcated to 

allow for a determination of a threshold issue, i.e., whether Claimant was in the 

course and scope of his employment with Employer at the time of the March 10, 

2011, automobile injury.

Claimant, a resident of North Carolina, testified by telephone that he 

was employed as a driller’s helper at natural gas wells in Pennsylvania for 

Employer since mid-September of 2010. Notes of Testimony, August 4, 2011, 

(N.T. 8/4/11) at 10-12 and 16; R.R. at 35a-37a and 41a. During his employment 

with Employer, Claimant worked at approximately twenty-two different job sites. 

N.T. 8/4/11 at 13; R.R. at 38a. Claimant did not maintain a residence in 

Pennsylvania, and Employer provided Claimant a weekly allowance for housing 

and food. N.T. 8/4/11 at 14 and 17; R.R. at 39a and 42a. Claimant was provided a 

company vehicle for transportation. N.T. 8/4/11 at 16; R.R. at 41a. On March 9, 

2011, after the drilling was completed at the Clear Springs Dairy location, 

Claimant and another individual moved Employer’s equipment to Employer’s 

rented lot in Lock Haven. Claimant had dropped off drilling equipment at this 

 

1 Act of June 2, 1915, P.L. 736, as amended.
3

location, approximately ten times prior. N.T. 8/4/11 at 43; R.R. at 68a. Claimant 

usually dropped off the equipment at this location during the workday and on one 

other occasion it was his last duty of the day. N.T. 8/4/11 at 44; R.R. at 69a. 

Claimant then intended to travel to Towanda to stay in his rented room but was 

injured in an automobile accident. N.T. 8/4/11 at 21-23; R.R. at 46a-48a. 

Leonard Long (Mr. Long), drill supervisor for Employer, testified that 

employees “get paid when they get to the job site, and they...quit getting paid 

when they leave the job site....Now if they’re moving equipment, they get paid, 

you know, while they’re moving the equipment also.” N.T. at 61-62; R.R. at 86a87a. Mr. Long experienced that in a situation where the last thing that the 

employee does for the workday is to drop off a piece of equipment, the employee’s 

work day ends “[w]hen they drop off the equipment.” Mr. Long testified that 

employees would not be paid for the travel time to where they’re lodged. N.T. at 

63; R.R. at 88a. Mr. Long agreed with Claimant’s testimony that the Employer’s 

work truck was used to transport the employees from wherever they were staying 

to the well site. N.T. at 66; R.R. at 91a. 

Mark Ziegenfuss (Mr. Ziegenfuss), Employer owner, testified that an 

employee’s work day started when he arrived at the drilling site and ended when 

he left the drilling site. N.T. at 87; R.R. at 112a. Employees are paid for time 

spent moving a drill rig from site to site, or to the lot in Lock Haven. Mr. 

Ziegenfuss noted that if moving a drill rig is the last task of the day, the 

employee’s work day ends when he is done moving the equipment. N.T. at 88; 

R.R. at 113a. Mr. Ziegenfuss testified that Employer paid for employees’ motel 
4

rooms and provided employees with $25.00 per day for meals. N.T. at 90; R.R. at 

115a. Employees were not paid for the time they spent traveling from wherever 

they stayed to the well site. N.T. at 97; R.R. at 122a. Mr. Ziegenfuss believed that 

Claimant and the other individual involved in the motor vehicle accident intended

to take time off from work after they dropped off the equipment in Lock Haven. 

N.T. at 94-95; R.R. at 1191a-120a.

Leonard Harper (Mr. Harper), a driller’s helper, testified by deposition 

on behalf of Employer. Mr. Harper lived in Ohio but worked in Pennsylvania. 

Deposition of Leonard Harper, October 17, 2011, (Mr. Harper Deposition), at 4; 

R.R. at 236a. Mr. Harper was not paid for the time it took to travel from a work 

site to his motel. Mr. Harper Deposition at 10; R.R. at 242a. Mr. Harper testified 

that he regularly traveled to the service yard in Lock Haven. Mr. Harper 

Deposition at 7; R.R. at 239a. If Mr. Harper traveled to the service yard at the end 

of the work day, he was paid for his travel time to the service yard but his work 

day ended when he left the service yard. Mr. Harper Deposition at 9; R.R. at 241a. 

Mr. Harper testified that he worked at a couple hundred different work sites. Mr. 

Harper Deposition at 23; R.R. at 255a.

On May 16, 2012, the WCJ made the following relevant findings of 

fact:

....

3. At time of hearing, Claimant was 32 years old. He 

began working for the Defendant [Employer] in midSeptember 2010 as a driller’s helper. The Defendant is 

involved in drilling operations in the Marcellus shale gas 

fields in Pennsylvania. Claimant resides in North 

Carolina.
5

4. Claimant typically worked regular hours as a driller’s 

helper, 7:00 or 8:00 p.m. to 7:00 or 8:00 a.m. His job 

involved, among other things, operating equipment, 

moving equipment, welding, operating a boom truck, 

and, in general, assisting the driller.

5. Between September 2010 and March 9, 2011, 

Claimant worked at approximately 22 gas well sites, 

most of which were located in Bradford County, 

Pennsylvania. The last well site on which Claimant was 

working, immediately prior to the incident of March 10, 

2011, was at Clear Springs Dairy in Burlington 

Township, Bradford County.

6. The parties agree that, typically, Claimant was 

assigned to work at a specific well site. At times he 

would be required by his employer to pick up materials at 

an outside location. At other times, Claimant would be 

transferred from one well site to another to perform 

work. The length of assignment at any one well site 

could vary from days to weeks. As a part of his job 

duties, Claimant would be required at times to move 

equipment from one location to another.

....

34. The WCJ credits the testimony of the Claimant. 

Claimant’s testimony was internally consistent, was 

consistent in many respects with the testimony of the 

Defense [Employer] witnesses, seemed straightforward 

and logical, and was not materially affected by crossexamination. The WCJ also credits, in part, the 

testimony of Mr. Ziegenfuss, Mr. Long, and Mr. Harper 

as to the calculation of hours worked, the payment of 

wages, and the general job duties of a driller’s helper.

35. However, to the extent that there are inconsistencies 

between the Claimant’s explanation of his job duties in 

general, his work history with the company, his job 

assignments on March 9 and 10, 2011, his permitted use 

of the company truck, or the specific events of March 10, 

2011, the WCJ will accept as credible the testimony of 

the Claimant. In this regard, the WCJ observes that Mr. 

Ziegenfuss and Mr. Long did not contradict Claimant’s 

testimony that: (1) Claimant was allowed the use of a 
6

company truck for work travel and personal travel and 

was allowed the use of the company truck on March 10, 

2011; (2) Claimant was directed to transport the drill rig 

to Lock Haven which was not a typical assignment for 

Claimant, whose usual fixed place of employment was at 

a well site. The WCJ also notes the limited knowledge of 

Mr. Harper regarding the specific terms of Claimant’s 

employment contract and duties with the company.

36. Based on the substantial, credible evidence, the WCJ 

further finds:

a) Claimant was employed by the Defendant 

[Employer] on March 9 and March 10, 2011 as a 

driller’s helper. His regular hours were from 7:00 

or 8:00 p.m. until 7:00 or 8:00 a.m. at well pad 

sites, as assigned by the employer. His job 

involved not only being present at well pad sites, 

but also, performing errands on behalf of the 

employer as assigned, including but not limited to, 

trips for equipment and supplies and to transport 

equipment. He had use of a company vehicle for 

both work and non-work activities. And, he was 

paid a fixed amount for daily expenses.

b) On March 9 and 10 Claimant reported first to a 

well site known as Clear Springs Dairy in Bradford 

County. When his work at that site was completed, 

he was directed by his employer to transport and 

deliver a drilling rig and equipment from the well 

site in Bradford County to an equipment yard in 

Clinton County. He was assisted by a co-worker, 

Tony Pirylis. They drove the boom truck and drill 

rig to Lock Haven, Clinton County, towing a 

company pickup truck for transportation back to 

Bradford County. However, their arrival at Lock 

Haven was delayed because of an equipment 

failure, a pump falling off the rig and a flat tire.

c) Claimant was not paid wages by the employer 

after completing the delivery of the equipment to 

Lock Haven.
7

d) Claimant was returning with Mr. Pirylis to 

Towanda, Bradford County at the time of the 

accident on March 10, 2011. The accident 

occurred in Tioga County, southwest of Bradford 

County at about 8:00 a.m. The accident did not 

occur at a location which would have been a 

deviation from the Claimant’s route of return to 

Towanda, Bradford County.

e) Although Claimant had been residing in Fort 

Pitt, New York when assigned to the Clear Springs 

Dairy site, he intended, on March 10, 2011, to stay 

in a rented room in Towanda, Bradford County. 

His co-worker, Mr. Pirylis, intended to take the 

company truck to New Jersey.

f) Although Claimant’s work did generally require 

his daily commute to a well site, on March 10, 

2011, Claimant was performing an assignment 

which required him to travel away from his fixed 

place of employment, the well site, to the 

equipment yard in Lock Haven. The route he was 

traveling to Lock Haven and back to Bradford 

County, was not his typical commute from his 

lodgings to and from a well site in Bradford 

County.

37. Therefore, the WCJ finds that Claimant was traveling 

to Lock Haven, Clinton County, on March 10, 2011, as 

directed by his employer, on special assignment. His 

return trip from Bradford County was incidental to the 

special assignment and Claimant, although not being paid 

wages for the return trip, was using a company vehicle 

with permission of the employer to make the trip. 

Claimant was, at the time of the motor vehicle accident, 

engaged in a trip related to a special assignment, and was 

using a truck customarily provided to him as a part of his 

contract of employment with Defendant [Employer].

[Emphasis added.]

CONCLUSIONS OF LAW

....
8

5. Based upon the substantial, credible evidence as 

determined in the Findings above, the WCJ concludes 

that the fixed place of work for the Claimant on March 9, 

and 10, 2011 was the well site to which he was 

temporarily assigned; that on March 10, 2011, Claimant 

was actually on a special mission for the employer and 

indeed, was furthering the business of the employer when 

he transported the drill rig and equipment to Lock Haven 

and, therefore, was required to later return from Lock 

Haven to Bradford County. The WCJ concludes that a 

company truck was available to the Claimant on that 

date, as had been done previously, as a part of Claimant’s 

employment contract, whether or not he was engaged in 

actual work activities, although on the day in question, 

Claimant was not engaged in any personal activities 

when the motor vehicle accident occurred...

WCJ’s Interim Order, May 16, 2012, (Interim Order) Findings of Fact (F.F.) Nos. 

3-6, 34-37 and Conclusion of Law No. 5 at 1-9. The WCJ determined that 

“Claimant was both on a special mission and also, as per his contract employment, 

using the company truck to travel back to his lodging...when the vehicle accident 

occurred”.... Interim Order, Conclusion of Law No. 5 at 9.

III. Claim Petition.

On July 3, 2012, Claimant described the medical treatment of his

injuries that he sustained in the work-related automobile accident. Claimant 

testified that he returned to North Carolina and sought treatment at the emergency 

room of Murphy Medical Center for pain and infection in his right knee, ankle and 

toes. Notes of Testimony, July 3, 2012, (N.T. 7/3/12) at 7-8.2 Claimant suffered 

from an infection in his stomach as the result of some sutures. N.T. 7/3/12 at 9. 

Claimant continued to experience pain in his right knee and in his left knee where 

he sustained a Posterior Cruciate Ligament (PCL) tear. N.T. 7/3/12 at 9-10. 

 

2

This transcript was not in the Reproduced Record.
9

Claimant could not perform certain activities, like squatting. N.T. 7/3/12 at 10. 

Claimant also treated at Carolina Wellness Concepts, located in Franklin, North 

Carolina, where he was seen by Marilyn Castle for pain management and was 

prescribed medication. He discontinued this treatment plan because he did not 

have insurance and could not afford it. N.T. 7/3/12 at 11-13.

Claimant presented the medical deposition testimony of Ronald E. 

DiSimone, M.D. (Dr. DiSimone), board-certified in orthopedic surgery. 

Deposition of Ronald E. DiSimone, M.D., December 5, 2012, (Dr. Simone 

Deposition) at 3-4.3 Dr. DiSimone performed an Independent Medical Evaluation 

(IME) of Claimant on August 20, 2012. Dr. Simone Deposition at 4. Claimant

complained of bilateral knee pain, right ankle pain and swelling, exacerbated by 

weight-bearing activities and right knee swelling made worse by prolonged 

attempts at standing or walking. Claimant informed Dr. DiSimone that he could 

not squat or kneel and that it was difficult to get in and out of the truck. Dr. 

Simone Deposition at 6. Dr. DiSimone’s examination revealed that “Claimant had 

a positive patellofemoral inhibition test and a positive posterolateral sag sign with 

plus two posterior Drawer instability with a soft end point on testing his PCL.” Dr. 

DiSimone Deposition at 7-8. Dr. DiSimone opined that Claimant recovered from 

all of his diagnosed injuries, with the exception of the following: bimalleolar right 

ankle fracture status post open reduction internal fixation, bilateral femoral condyle 

contusions with chondral defects and open laceration bilateral knees, and partial 

tear posterior cruciate ligament left knee. Dr. DiSimone Deposition at 9-11. 

Claimant’s knees showed evidence of chondral defects, or traumatically-caused 

 

3 Dr. DiSimone’s Deposition is not part of the Reproduced Record.
10

areas where the cartilage is missing, consistent with “dashboard injuries,” which 

was associated with painful swelling “and pain and insecurity on walking.” Dr. 

DiSimone Deposition at 11. Claimant’s PCL tear did “not cause a lot of 

symptoms...[but was] a big problem and [was] an ongoing area of instability in the 

left knee.” Dr. DiSimone Deposition at 11. Dr. DiSimone opined that the 

unresolved diagnoses were responsible and necessary to restrict the patient in his 

ability to perform work. Dr. DiSimone Deposition at 12. Dr. DiSimone believed 

that if Claimant underwent a successful PCL reconstruction, he would eventually 

be capable of returning to work as a driller. Dr. DiSimone Deposition at 13.

Employer presented the deposition testimony of Michael Wolk, M.D. 

(Dr. Wolk), board certified in physical medicine and rehabilitation. Deposition of 

Michael Wolk, M.D., September 24, 2012, (Dr. Wolk Deposition) at 3-4. On 

August 21, 2012, Dr. Wolk performed an IME of Claimant, took Claimant’s 

medical history, and reviewed medical records. Dr. Wolk Deposition at 9. 

Claimant informed Dr. Wolk that he could sit for two hours at a time and could 

only stand or walk twenty to thirty minutes at a time. Dr. Wolk Deposition at 13. 

Claimant’s medical records revealed that he was injured in an automobile accident 

and sustained a right forehead laceration, a right nose laceration with head injury, 

right greater than left bilateral pulmonary contusions, frail chest on the right with 

right-sided hemo and pneumothorax which required a chest tube, multiple bilateral 

rib fractures, a Grade 1 liver laceration with hemoperoneum, a Grade 2 and 3 

spleen contusion, a right adrenalin hemorrhage surrounding the adrenal gland and 

the inferior vena cava, a left hip fracture dislocation and posterior acetabular 

fracture, an open right ankle fracture, a bimalleolar and laceration of the left knee, 
11

and left flank abrasion. Dr. Wolk Deposition at 14. Dr. Wolk believed Claimant 

exhibited a moderate degree of symptom magnification and did not put forth a full 

reliable consistent effort during physical type maneuvers. Dr. Wolk Deposition at 

18. Dr. Wolk opined that Claimant suffered significant injuries as a result of the 

work-related injury that required multiple surgical procedures and intensive 

rehabilitation. However, Dr. Wolk concluded that Claimant recovered and was 

capable of returning to work on August 21, 2011. Dr. Wolk Deposition at 25.

On February 5, 2013, the WCJ made the following relevant findings 

of fact concerning the claim petition:

49. The WCJ finds credible, in part, the testimony of the 

Claimant. The WCJ specifically credits Claimant’s 

explanation of the nature of the work injury, his 

treatment post-injury, his ongoing symptoms and 

disability, and his limitations as to certain physical 

activities.

50. In crediting the testimony of the Claimant, in part, 

the WCJ took into account: the manner in which 

Claimant testified; the mechanism of the work injury; the 

corroboration of the Claimant’s symptoms and disability 

by Dr. DiSimone; the admission of the symptoms and 

disability by Dr. DiSimone; the admission of the 

significance of the initial injuries by Dr. Wolk; the 

concessions of Dr. Wolk that Claimant does suffer 

ongoing problems at the site of the splenectomy and in 

the left knee; and the Claimant’s efforts to follow up with 

appropriate medical treatment post-injury despite the 

denial of Workers’ Compensation coverage. While 

testifying, Claimant did not magnify, or embellish his 

symptoms.

51. The WCJ finds credible the medical explanations 

and opinions of Dr. DiSimone. In crediting these 

opinions, the WCJ took into account the thorough and 

detailed nature of the doctor’s analysis, the clarity of his 
12

explanations, and the consistency of his opinions despite 

a careful cross-examination. The WCJ further observes 

that, in certain respects, Dr. Wolk did concede findings 

made by Dr. DiSimone, for example with regard to the 

laxity in the left knee, the PCL injury. Further, the 

reliance by Dr. DiSimone on the Claimant’s credibility is 

consistent with the WCJ’s impression of the Claimant’s 

testimony at the time of hearing.

52. The WCJ rejects as not credible the opinions of Dr. 

Wolk to the extent he opined Claimant was fully 

recovered, or, that Claimant could return to work as a 

driller’s helper without restrictions. In this regard, the 

WCJ has accepted as credible the testimony of the 

Claimant, and the opinions of Dr. DiSimone to the 

contrary.

53. In summary, the WCJ finds that the substantial, 

credible evidence shows: (1) Claimant suffered work 

injuries on 03/10/11 as itemized by Dr. DiSimone at 

Finding of Fact No. 17 above; (2) Claimant requires 

treatment for and suffers ongoing disability from three of 

the diagnoses attributable to the work injury as opined by 

Dr. DiSimone at Finding of Fact 18 above; (3) Claimant 

has not fully recovered from the work injury; [and] (4) 

Claimant cannot, currently, perform his time of injury job 

as a driller’s helper.

CONCLUSIONS OF LAW

....

7. The medical opinions of Dr. DiSimone and Dr. Wolk 

were unequivocal and were rendered to a reasonable 

degree of medical certainty. Nonetheless, these opinions 

were conflicting.

8. The WCJ has resolved the conflicting medical opinion 

evidence by accepting the diagnoses and opinions of Dr. 

DiSimone and rejecting the opinions of Dr. Wolk to the 

contrary. [Emphasis added.]

9. Therefore, it must be specifically concluded that 

Claimant suffered an injury as described by the medical 

opinions of Dr. DiSimone...and continues to suffer 
13

injury-related disability, as per the opinions of Dr. 

DiSimone...under the terms of the Act.

WCJ’s Decision, February 5, 2013, F.F. Nos. 49-53 and Conclusions of Law Nos. 

7-9 at 8-11; R.R. at 291a-292a. The WCJ granted Claimant’s Claim Petition.

The Board affirmed the decision of the WCJ based on alternative 

grounds and modified the WCJ’s Decision. The Board also ordered Employer to 

pay statutory interest and deduct Claimant’s attorney’s fee, in accordance with the 

Fee Agreement, on all due and unpaid medical expenses. The Board reasoned:

After a careful review of the record, we determine that 

the WCJ did not err in finding that Claimant was in the 

course and scope of his employment with Defendant 

[Employer] at the time of his injury. However, we reach 

this determination on different grounds. The WCJ found 

that Claimant was working at a fixed location, the well

site, but that he was traveling to Lock Haven on March 

10, 2011, as directed by his employer, on a special 

assignment. He found that Claimant’s return trip was 

incidental to this special assignment, and that although he 

was not being paid for his time during the return trip, he 

was using a company vehicle with Defendant’s 

[Employer’s] permission, with such vehicle being 

customarily provided to him as part of his contract of 

employment with Defendant [Employer].

We believe, after review, that the WCJ erred in finding 

that Claimant was working at a fixed location at the time 

of his injury....

Board’s Decision, October 17, 2014, (Decision) at 8-9; R.R. at 313a-314a.
14

II. Present Controversy.

A. Whether Claimant Was In The Course And Scope Of His Employment 

At The Time Of The Motor Vehicle Accident?

First, Employer argues4that the Board erred when it affirmed the 

WCJ’s conclusion that Claimant was in the course and scope of employment at the 

time of the motor vehicle accident. 

Employer contends that the Board erred when it affirmed the WCJ’s 

determination that Claimant was in the course and scope of employment where he 

commuted from his fixed place of employment after the end of his workday and 

intended to travel to his friend’s home, and where none of the exceptions to the 

“going and coming” rule apply.

Whether an employee is in the course and scope of his employment at 

the time of an injury is a question of law which must be based on the findings of 

fact. Stillman v. Workmen’s Compensation Appeal Board (CBR Enterprises), 569 

A.2d 983 (Pa. Cmwlth. 1990). The course of employment is necessarily broader 

for traveling employees and is liberally construed to effectuate the purposes of the 

Act. Aluminum Co. of America v. Workmen’s Compensation Appeal Board

(Howar), 380 A.2d 958 (Pa. Cmwlth. 1977). When a traveling employee is injured 

after setting out on the business of his employer, it is presumed that he was 

furthering the employer’s business at the time of the injury. Investors Diversified 

 

4

This Court’s review is limited to a determination of whether an error of law was 

committed, whether necessary findings of fact are 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).
15

Services v. Workmen’s Compensation Appeal Board, 520 A.2d 958 (Pa. Cmwlth. 

1987). The employer bears the burden of rebutting this presumption. Aluminum 

Co. To meet its burden, the employer must prove that the claimant’s actions were 

so foreign to and removed from his usual employment that they constitute an 

abandonment of that employment. Port Authority of Allegheny County v. 

Workmen’s Compensation Appeal Board (Stevens), 452 A.2d 902 (Pa. Cmwlth. 

1982). 

Here, this Court concurs with the Board’s conclusion that Claimant 

was a traveling employee at the time of his injury pursuant to Roman v. Workmen’s 

Compensation Appeal Board (Department of Environmental Services), 616 A.2d 

128 (Pa. Cmwlth. 1992) and Sheckler Contracting v. Worker’s Compensation 

Appeal Board (Yonek), 697 A.2d 1062 (Pa. Cmwlth. 1997). Here, the Board 

found:

...Claimant, a resident of North Carolina, testified that he 

was employed as a driller’s helper, to work at natural gas 

wells in Pennsylvania, since mid-September, 2010. 

During his employment with Defendant [Employer], he 

worked at approximately twenty-two different job sites. 

Claimant did not maintain a residence in Pennsylvania. 

During the time that he worked for Defendant 

[Employer], he flew home to North Carolina on four 

occasions, at Defendant’s [Employer’s] expense. While 

working in Pennsylvania, Claimant stayed at various 

motels, again at Defendant’s [Employer’s] expense. 

Claimant was also allowed the use of the company 

vehicle for personal reasons. Claimant was injured in a 

motor vehicle accident as he was on his way to Towanda 

to work at Defendant’s [Employer’s] next job site.

We note several similarities between the facts of this 

matter and those of Roman and Sheckler, which seem to 
16

place Claimant squarely in the shoes of a traveling 

employee. For example, in Roman and Sheckler, the 

claimants resided in hotels, during the workweek, which 

were paid for by the employer, and they returned home to 

their residences on the weekends. In Roman, in 

particular, there appeared to be no question that under 

those circumstances, the claimant was a traveling 

employee. In addition, in Sheckler, the claimant was 

actually traveling home at the time of his injury, but was 

nonetheless found to have been in the course and scope 

of his employment when he was injured. In that case, the 

Court found it significant that the claimant could have 

been asked to report to different worksites after he 

returned home. Here, Claimant reported to twenty-two 

different worksites during the course of his employment 

with Defendant [Employer], and he, in fact, expected to 

be picked up, from Towanda, to report to Defendant’s 

[Employer’s] next worksite.

....

...The facts, when viewed here in the light most 

favorable to Claimant as the prevailing party, establish 

that he was a traveling employee at the time of his injury. 

See Roman; Sheckler. Therefore, he was entitled to the 

broad presumption that he was injured during the course 

and scope of his employment when he was injured while 

going to his rented room after delivering equipment for 

Defendant [Employer]. As there was no evidence 

presented to rebut that presumption, the WCJ did not err 

in finding that Claimant was in the course and scope of 

his employment at the time of his injury. See Roman; 

Sheckler. Therefore, he was entitled to the broad 

presumption that he was injured during the course and 

scope of his employment when he was injured while 

going to his rented room after delivering equipment for 

Defendant [Employer]. As there was no evidence 

presented to rebut that presumption, the WCJ did not err 

in finding that Claimant was in the course and scope of 

his employment at the time of his injury. [Emphasis 

added.]

Decision at 10-12; R.R at 315a-317a. 
17

The Board was correct in its determination that Employer clearly 

failed to satisfy its burden and establish that Claimant’s actions were so foreign to 

and removed from his usual employment that they constituted an abandonment of 

that employment. 

B. Whether The Board Erred When It Ordered Employer To Pay Claimant’s 

Attorney A Fee In The Amount of Twenty Percent Of All Unpaid Medical Bills?

Second, Employer contends that the Board erred when it ordered the 

Employer to pay Claimant’s attorney a fee in the amount of twenty percent of all 

unpaid medical bills where the WCJ did not issue any findings as to the time and 

effort expended by the attorney or whether such an increased fee was reasonable.

The Fee Agreement provided:

1. Amount of Fee.

The attorney’s fees charged by the Firm is a contingent 

fee of 20% of the amount awarded or agreed to by the 

parties, including interest, in the context of any petition. 

This fee shall also apply to all injury-related medical 

expenses which are paid as a result of the Firm’s 

representation, through either an award or agreement.

Fee Agreement, May 5, 2011, at 1.

The WCJ found:

10. Defendant [Employer] must pay to Claimant 

temporary total disability wage loss benefits at the 

weekly rate of $828.64 beginning 03/11/11 and 

continuing thereafter and ongoing as per the terms of the 

Act.

11. Defendant [Employer] must pay those reasonable 

and necessary medical expenses causally related to the 
18

described work injury, as per the cost containment 

schedules and the terms of the Act.

12. Defendant [Employer] must pay interest on past-due 

benefits at the rate of 10% per annum. 

13. As Claimant has prevailed, Defendant [Employer] 

must pay Claimant’s reasonable litigation costs as per the 

terms of the Act. Minicozzi v. WCAB (Indus. Metal 

Plating Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005).

14. The foregoing notwithstanding, based upon the legal 

issue regarding course and scope of employment, and the 

deposition testimony of Dr. Wolk, the Defendant’s 

[Employer’s] contest of this matter has been reasonable. 

Therefore, although Claimant’s fee agreement with 

counsel is reasonable, Claimant must bear his own 

counsel fees. [Emphasis added.]

WCJ’s Decision, February 5, 2013, Conclusions of Law Nos. 10-14 at 10; R.R. at 

293a.

The Board concluded:

Claimant argues, on Appeal, that the WCJ erred by 

failing to award statutory interest on all due and unpaid 

medical benefits, and by failing to order Defendant 

[Employer] to deduct and pay to Claimant’s attorney a 

fee of 20% on all due and unpaid medical expenses. 

Contrary to Claimant’s argument, the WCJ in Conclusion 

of Law No. 12, directed Defendant [Employer] to pay 

interest on past-due benefits at the rate of 10% per 

annum. In Glinka v. W.C.A.B. (Sears, Roebuck & 

Company), 462 A.2d 909 (Pa. Cmwlth. 1983), the 

Commonwealth Court resolved that pursuant to Section 

406.1 of the Act, 77 P.S. § 717.1,[5]interest shall accrue 

on all due and unpaid compensation, including medical 

bills, at the rate of 10% per annum. In addition, the WCJ 

also approved Claimant’s fee agreement with counsel, 

 

5 Added by Section 3 of the Act of February 8, 1972, P.L. 25. 
19

and directed Defendant [Employer], in his Order, to 

deduct and pay these fees directly to counsel for 

Claimant. The Fee Agreement entered into by Claimant 

and his counsel, provides for a 20% fee of the amount 

awarded, including medical expenses....Medical 

expenses may be included when computing a claimant’s 

attorney’s contingent fee. Raulston v. W.C.A.B. (TriState Motor Transit), 606 A.2d 668 (Pa. Cmwlth. 1992). 

To the extent that the WCJ’s Decision can be interpreted 

otherwise, we hereby modify to order Defendant 

[Employer] to pay statutory interest and deduct 

Claimant’s attorney’s fee, in accordance with the Fee 

Agreement, on all due and unpaid medical expenses.

Decision at 17-18; R.R. at 321a-322a.

In Raulston, a claimant sustained a work-related injury, filed a claim 

petition and was subsequently awarded workers’ compensation benefits. The WCJ

ordered employer to pay claimant weekly compensation and to pay claimant’s 

medical bills. The WCJ’s decision also ordered employer to deduct twenty percent 

of the compensation payable and pay it directly to claimant’s attorney. Employer’s 

insurer paid claimant’s attorney twenty percent of the weekly benefits payable. 

However, the insurer, after forwarding eighty percent of the award for medical 

bills in order that it be paid to the medical providers, retained the additional twenty 

percent and refused to pay it to claimant’s attorney. Claimant’s attorney filed a 

petition with the Board and requested approval of attorney fees. The Board found 

that the attorney was not entitled to 20% of reimbursement for medical bills as part 

of his contingency fee. On appeal, this Court noted that “the referee’s [WCJ’s]

decision did not explicitly state that claimant’s attorney should receive twenty 

percent of the medical bill reimbursements. The referee [WCJ] also did not 

explicitly approve the fee agreement between claimant and his attorney as required 

by Section 442 of the Act.” Raulston, 660 A.2d at 670. This Court determined 
20

that an attorney’s contingency fee could come out of reimbursement for medical 

expenses and remanded for a determination of whether the claimant and the 

attorney intended for the attorney to receive a percentage of medical bill 

reimbursements as part of his fee and whether the attorney’s fee was reasonable.

Here, unlike in Raulston, it is evident from the record that the fee 

agreement specifically provided that a fee was due on all compensation payable, 

including medical expenses. Additionally, the WCJ concluded that “Claimant’s 

fee agreement with counsel is reasonable.” WCJ’s Decision, February 5, 2013, 

Conclusion of Law No. 14 at 10; R.R. at 293a.

Accordingly, the decision of the Board is affirmed.

____________________________

BERNARD L. McGINLEY, Judge

 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ziegenfuss Drilling, Inc., :

Petitioner :

:

v. :

:

Workers' Compensation Appeal :

Board (Dailey), : No. 1975 C.D. 2014

Respondent :

O R D E R

AND NOW, this 18th day of December, 2015, the Order of the 

Workers’ Compensation Appeal Board is affirmed.

____________________________

BERNARD L. McGINLEY, Judge