IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lutheran Senior Services : Management Company, :

Petitioner :

: No. 1074 C. D. 201 6
v. : : Submitted: November 4 , 2016 Workers’ Compensation Appeal : Board ( Miller ), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE McCULLOUGH FILED: February 15, 2017

Lutheran Senior Services Management Company (Employer) petitions for review of the June 8, 2016, order of the Workers’ Compensation Appeal Board (Board) affirming the decision of the Workers’ Compensation Judge (WCJ) granting the claim petition of Jerry Miller (Claimant).

Facts a nd Procedural History
Claimant filed a claim petition on April 22, 2014, alleging ongoing disability from a “broken eye socket, broken pelvis, ruptured bladder, [and] multiple scars and disfigurements” arising out of a “work

- related mo tor vehicle accident” on March 13, 2014. (Reproduced Record, (R.R.) at 3.) Employer filed a timely answer2

on May 6, 2014, denying all material allegations and demanding strict proof of those allegations. (R.R. at 7

- 9.) At the first hearing bef ore the W CJ on M ay 19, 2014, Employer orally amended its defenses to include the defense that Claimant was not in the course of his employment when he was injured. (R.R. at 13

- 14.)

Clai mant testified before the WCJ that he had worked for Employer for twelve years as Director of Maintenance, overseeing three other employees. He
stated that he was a salaried employee exempt from the overtime requirements of the
Fair Labor Standards Act , 1 whose regular work hours were Monday through Friday, starting at 7:00 a.m. and ending at 3:30 p.m . ( R.R. at 20

- 22, 47 .)

A ccording to both Claimant and Diana Seip (Employer’s Executive Director) , Employer maintained a four

- building campus over ei ghteen acres a s a facility fo r senior citizens. (R.R. at 20

- 21 and 79

- 81

. ) According to Ms. Seip, a s part of the protection for its residents, Employer had a system of security cameras spread out over the campus. Proper functioning and accuracy of these security cameras was an important priority for Employer. (R.R. at 93

- 9 4 .)

At the July 14, 2014, hearing, Claimant testified that as Director of Maintenance, “It means I oversee the maintenance staff, help implement all the building’s systems , repair the building’s systems, [and] respond to after

- hours emergencies.” (R.R. at 20. ) He testified that he was called in to work while off

- site two to three times monthly. (R.R. at 22

- 23.) Whenever he was call ed in to work
while off

- site, Claimant testified that in lieu of additional pay, he received “comp
time , ” which accumulated from the time he picked up the phone until when he arrived back home. This “comp time” was to be taken as soon as possible after being

1 29 U.S.C. §213(a)(1)

.3

called in, and for the same time as the non

- exempt, wage employees he supervised , that is, door to door, from home to work a nd back. (R.R. at 23

- 27.)

Claimant testified about Employer’s “on call” policy and admitted into evidence Employer’s written “on call” policy. That policy stated in pertinent part:

Employees on

- call for after hours maintenance problems are not compensa ted for carrying the pager since these employees are able to pursue personal activities and interests while carrying the pager. However, once a call is received and a determination is made that it is necessary to go to Luther House [the four

- building site ], this time will be considered work time from the point that the employee begins responding to the call until the work is done and the employee arrives home or at whatever activity or location where the pager call was received. All of this time should be recorded on the timesheet for that workweek.

(R.R. at 68.) The written policy also permitted the e mployee to record a minimum of three work hours if the employee must return to Luther House to respond to an emergency maintenance call, and receive mileage reimbursement. (R.R. at 69.)

Claimant stated that he awoke the morning of March 13, 2004, “feeling very poor, very weak,” from being up all night due to a reaction to a prescription
medication . (R.R. at 30.) He stayed home past his usual 7:00 a .m. start time and
called his ex

- wife, Jacqueline Miller, about his physical symptoms inasmuch as she was a trained EMT. (R.R. at 30

- 32.) While on his cell phone with Ms. Miller, Claimant testified that Ms. Seip “beeped in,” and he accepted the call. Ac cording to Claimant, she asked him if he was available to handle the security cameras bei ng down, and he said he told Ms. Seip he was home and not available because he was
sick , and for such emergencies , “ the other guys were su pposed to respond if they can handle it.” (R.R. at 32, 48.)4

Claiman t characterized the camera malfunc tion as “ an emerge ncy, but not life or death,” and when he told Ms. Seip he inte nded to take a sick day, she
advise d him that th e others had already called off. Claimant noted tha t he was not
infectious , and felt obligated “ to go in and fix these cameras.” “I didn’t want to
make her [Ms. Seip] mad.” (R.R. at 32

- 33, 48, 53

- 54.)

Claimant denied that he told Ms. S eip that he had planned on coming in to work; rather, he insisted that he told her he intended to take a sick day. Additionally, when he agreed to come in, he said he told her he was not staying the
whole shift, and she was fine with that

. (R.R. at 53

- 55, 127

- 28.)

Claimant also adduced the testimony of Ms. Miller, taken by deposition

on November 4, 2014. She confirmed that they had been married for twenty years
and were divorced in September of 2013. (R.R. at 141.) A licensed EMT, she
testified that her ex

- husban d called her on the morning of March 13, 2014, telling her “he wasn’t feeling well from a new medicine he started.” (R.R. at 141.) She continued, “He said he was nauseous, he was diz zy...and tired.” (R.R. at 141, 143.)
The n , she testified, Claimant told her he was calling off sick that day, but “Diane” (Ms. Seip) had beeped in, so that he told Ms. Miller that he was going in to fix the

ca meras and then come home, intending to take the rest of the day off to be with their
bab y grandson Liam. (R.R. at 141

- 42.)

Claimant testified that , after speaking with Ms. Seip he showered and began driving to work. He testified that he began feeling nauseous en route from home to work, which caused him to veer off the road and hit a telephone pole. (R.R. at 35.) He t estified that he remains under the care of doctors and physical therapists and has not been able to return to work since the accident. (R.R. at 41.)5

Claimant also presented the deposition testimony of his treating physician, William C. Murphy, D.O. A board

- certified physiatrist, Dr. Murphy has treated Claimant since the accident and continues to treat him. He testified that “as of the date of the accident, he [Claimant] would have been disabled based on the extent of his severe injuries.” In fact, Dr . Murphy testified that Claimant “is totally disabled from all employment.” (R.R. at 145, 146, 150.)

The Empl oyer’s Executive Director, Ms. Seip, confirmed Claimant’s testimony about his schedule and job duties. (R.R. at 88.) She described Employer’s

“ on call “ syste m as “if there was something that happened after hours that was necessary to be fixed before the next day, then the on

- call system would kick into place and the maintenance men would come in and take care of it.” (R.R. at 87

- 88.)
She test ified that the written policy applied only to non

- exempt, wage employees (not
Cl aimant) , but she never addressed the specific “on call” procedure for Claimant and

never rebutted Claimant’s assessment and summary of that policy as it applied to
him. She als o described Employer’s sick leave policy, which she said was fairly simple: just call or send her an e

- mail before the shift starts. (R.R. at 88, 91 , 100

- 01 .) On the morning of Marc h 13, 2014, Ms. Seip testified tha t the security cameras were down, and she called Claimant on his cell phone, assuming he was already at work. She testified that she got throu gh to Claimant, who informe d her he was getting dressed and coming in to work. She testified that Claimant never

men tioned anything about taking a sic k day, and that because Claimant was one of only two employees who understood the camera system (and the other had a lready called off sick), she told Claimant, “You need to...get this camera working

... ” (R.R.
at 92

- 95, 99, 1 08

- 10, 1 18

- 19.)6

Employer also offered the deposition test imony of Menachem M eller, M.D., who is b oard

- certified in orthopedic surgery. Dr. Meller examined Claimant once, at the request of the Employer , on November 17, 2014. (R.R. at 163.) Dr. Meller related all of Claimant’s symp toms and restrictions to pre

- existing, degenerative, non

- work

- related conditions. (R.R. at 168.) He concluded that Claimant “does require treatment, but not due to the car accident.” (R.R. at 170.)

The WCJ described the “threshold issue” before him as whether Claimant was in the course and scope of his employment at the time of the accident. (WCJ’s Finding of Fact No. 1.) After assessing the testimony of Claimant, Ms. Seip, and Claimant’s ex

- wife (a trained EMT with whom Claimant has been talking on his cell phone about his physical condition on the mor ning of March 13, 2014), Dr. Murphy, ( Claimant’s treating physician), and Dr. Me ller (Employer’s examining physician), the WCJ found: “While Claimant has a fixed place of employment, and
his commute to work would ordinarily not be deemed in the course of his employment, special circumstances were present on the day of injury, March 13, 2014, so as to earmark Claimant’s commute to work that day as being on a ‘special mission’ for Employer.” (WCJ’s Findin g of Fact No. 6.) Put another way, the WCJ
found that “Claimant was sick on March 13, 2014, and except for the special need of the Employer to assure [that the] surveillance cameras became operative

. . . Claimant would not have gone to work .” Id.

Havin g determined that the claim petition was not excluded by the “coming and going rule,” the WCJ resolved the medical issues in favor of Claimant, finding Dr. Murphy more credible than Dr. Me ller, so that he found Claimant to have been totally disabled from t he date of injury continuing up through the present. (WCJ’s Findings of Fact Nos. 4
, 8

- 11.)7

Employer filed an appeal to the Board, arguing that compensation was precluded by the “ coming and going rule.” In an opinion and order dated June 8, 2016, the Bo ard rejected Employer’s appeal but held that Claimant was not so much on a “special mission” for Employer as he was in “special circ umstances” in his employment. The Board reasoned that w here Claimant was intending to take March 13, 2014, as a sick day, E mployer’s “on call” policy came into play, and “the fact that the ‘on call’ policy provides that an ‘on call’ employee is ‘on the clock from the time he leaves home, [this] is a special circumstance which causes Claimant’s motor
vehicle accident to be in t he course and scope of his employment.” ( Board op. at 11. )

Employer now appea l s to this Court

. 2 Employer contends that Claimant failed to present “competent evidence sufficient to sustain his burden of proving that he was injured in the course and scope of his employment.” (Petition for Review, ¶ 9. ) Specifically, Employer argues that for an injury occurring while the emp loyee was off Employer’s premises and traveling to work, Claimant failed to demonstrate that his injury fell into one of the four exceptions to the “coming and going rule,” that is, the rule of law generally barring workers’ compensation benefits to an

em ployee injured while traveling to or from work. (Petition for Review, ¶ 10.)

Discussion Section 301(c) of the Workers’ Compensation Act (Act) 3 provides in pertinent part,

2 Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer) , 894 A.2d 214, 216 n.3 (Pa. Cmwlth. 2006).

3 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §411.8

The terms ‘injury’ and ‘personal injury’ shall be construed to mean an injury to an employe...arising in the course of his employment and related thereto...The term ‘injury arising in the course of employment,’ as used in this article...shall include all...injuries sustained while the employe is actually engaged in the furtherance of the busin ess or affairs of the employer, whether upon the employer’s premises or elsewhere

. . . . 77 P.S. §411.

Whether an employee is acting within the course of his employment at
the time of the injury is a question of law, determined on the basis of the WCJ’s factual findings, and subject to this Court’s plenary review. Williams v. Workers’ Compensation Appeal Board (Matco Electric Co., Inc.) , 721 A.2d 1140, 1142 (Pa.
Cmwlth. 1998), appeal denied , 739 A.2d 547 ( Pa. 1999).

Generally, for an injury sustained i n a commute to or from work, disability is not compensable, with four recognized exceptions: (1) the employment contract includes transportation to and/or from work; (2) the claimant has no fixed place of work; (3) the claimant is on a special assignment o r mission for the employer; or, (4) special circumstances are such that the claimant was furthering the business of the employer. Id

. at 1143.

We focus on the fourth exception, as that is the exception relied upon by
the Board. “ Special circumstances ” h ave rendered compensable an injury sustained during a commute where : (1) the employee is requested by the employer to come in; (2) the request is for the convenience of the employer or in furtherance of its business; and (3) the trip is not simply for the convenience of the employee

. LoPresti v. Workers’ Compensation Appeal Board (Gulf Construction Co.) , 384 A.2d 1017, 1019 (Pa. Cmwlth. 1978). Further, t he request by the employer can be direct or express, on the one hand, or implied, on the other , to qualify as a special request by9

the employer. City of Philadelphia v. Workers’ Compensation Appeal Board (Stewart) , 728 A.2d 431, 433 (Pa. Cmwlth. 1999) ( employer’s supervisory person made no direct request but did ask whether his suggestions for imp roving a problem had worked, which claimant took as an implicit request to come from home to the plant; benefits were awarded).

Employer relies upon the reasoning in Simko v. Workers’ Compensation Appeal Board (United States Steel Corp.) , 101 A.3d 1239 (Pa. Cmwlth. 2014), appeal
denied , 113 A.3d 282 (Pa. 2015). However, Simko is distinguishable from this case.
In Simko , this Court affirmed the Board’s reversal of a WCJ’s award of benefits to an employee who was injured in an automobile accident on his way to a monthly safety meeting at the employer’s workplace. The claimant there had asserted “special
circumstances” in that he had to come in prior to the start of his shift but this Court held, “ [c] laimant did not dispute that monthly safety meetings ar e treated as part of an employee’s shift, that employees are paid their hourly wage during the meetings, or that employees must arrive early to attend the meetings. Although attendance at the meetings furthers [e] mployer’s safety goal, it is still part of [c] laimant’s regular work duties. Therefore, the special circumstances exception does not apply.” 101 A.3d at
1242

- 1243. The focus of a WCJ under the Simko analysis is how the employer styles or categorizes the event to which the employee is coming or going, during what would otherwise be considered his or her daily commute. Unlike the case at bar, the
Court in Simko was faced with regular, scheduled safety meetings and not emergencies that occur with neither regularity nor predictability.

Here, the WCJ specifically credited Claimant’s testimony that he was feeling ill and intended to take a sick day on March 13, 2014. The WCJ also credited Claimant’s testimony that whenever he was called in to work while off site, he10

received “comp time,” to be taken as soon as possible after being called in, and for
the same time as the non

- exempt, wage employees he supervised, that is, door to door, from home to work and back. In other words, unlike the claimant in Simko , when Claima nt here was on call, Employer did not treat it as part of Claimant’s shift
or some extension of his regular shift; rather, Claimant received “comp time.” The WCJ found that, but for the emergency with the security cameras, Claimant would
not have made th e trip to work. The WCJ noted that Ms. Seip wanted Claimant to come into work to resolve the specific problem with the security cameras. The WCJ also found Claimant made these “on call” assignments two to three times monthly. In the present case, however , due to Claimant’s illness and the absence of the other employee normally available to address an emergency related to the security cameras, Claimant drove in to rectify the problem when he otherwise would not have gone into
work. The fact that Claimant here was sick and would not otherwise have come to
work (but for Employer’s request to do so) makes the present case readily distinguishable from Simko

.

The present case is similar to LoPresti , a case on which the Board relied
and a leading case to define the details of the “special circumstances” exceptio n to the “coming and going rule.” In LoPresti , the claimant worked as a construction foreman. Due to weather conditions on a scheduled work day, his work was cancelled for the day. The claimant decided to travel to the employer’s home office, which was ten miles from where he lived, to pick up his paycheck and discuss a specific job. The claimant received his check and proceeded to discuss the specific job with the employer’s president. The claimant a nd the employer’s president also discussed a potential new job involving a house foundation. The employer’s president asked the claimant to contact the builder regarding further details of this11

new job when the claimant got back home and to report back to him. The employer’s president explained that it was in that employer’s interest for claimant to be there to call the potential customer from his home because the actual reception area at the regular work site was chaotic. Unfortunately, the claimant was involved in an accident on the way home and he succumbed to injuries suffered in that accident the next day.
The WCJ ultimately granted a fatal claim petition brought by the claimant’s widow
, concluding that the claimant fit within the special circums tances exception to the “coming and going rule” because the employer specifically requested that the employee do something at home for the convenience of the employer. The
Board reversed , concluding that the claimant did not fit within this exception.
Ho wever, this Court reversed the Board and reinstated the decision of the WCJ , which properly applied the exception . We noted that the outcome was consistent with our Superior Court’s decision in Muir v. Wilson Cola Co. , 168 A.2d 588, 589 (Pa. Super. 1961), wh ich held that the fact that the employer paid the claimant “door to door,” i.e., from the moment he left his house, was alone sufficient to support application of the exception to the “coming and going rule.”

Similarly, here, Claimant was paid from “door to door” when he was responding to on call assignments or emergencies. Claimant would not have come in on the day in question due to his illness, but for the problem with the security
cameras and the direction from his supervisor, Ms. Seip, that the problem needed to be fixed. In other words, Claimant was injured in the course of responding to a direct request from Ms. Seip to come into work (despite his illness and his intention to take a full sick day) and d uring a time for which he would have be en compensated, albeit in the form of comp time.12 In William F. Rittner Co. v. Workers’ Compensation Appeal Boar d , 464 A.2d 675 (Pa. Cmwlth. 1983) , this Court affirmed the award of benefits to the widow
and minor chi ldren of an employee killed on his way home from work. There , an employee had been driving a company van as part of the terms and conditions of his employment, based on that employer’s desire “to have the van constantly available to respond to emergencies .” These facts comprised “special circumstances” which took that case out of the “coming and going rule.” 464 A.2d at 678. Similarly, in the present case, although Claimant was not driving a company vehicle , Employer voiced a specific desire to have emp loyees available (“on call”) for emergencies, and it is understandable that in a facility devoted to the care of older citizens, the security cameras would be an important priority.

Further, we reached a similar result in City of Philadelphia , in which th e claimant drove to one of his employer’s sites as part of his requirement to be “on

c all” every thirteen weeks. The c laimant was an electrician normally assigned to a specific plant. On a day when he was on call, t he claimant made a trip from home “under the mistaken belief ” that a supervisor wanted claimant to go there. 728 A.2d
at 431

- 432. This Court upheld an award of benefits, holding, “ [t] he infrequency of Claimant’s being ‘on call,’ coupled with the fact that being ‘on call’ did not

necessa rily require that Claimant travel to his workplace, leads this Court to conclude that the act of driving to work...was not part of Claimant’s regular duties,” but rather was a special assignment or special circumstances so as to qualify as an exception to
th e “coming and going rule.” 728 A.2d at 432

- 433. We concluded that the claimant

“ acted in accordance with his responsibilities as the ‘on call’ electrician and attempted to make his way to the plant in the effort to resolve the situation .” 728
A.2d at 43 3. Similarly here, Claimant has acted in accordance with his “on call”13

responsibilities in attempting to make his way to work to address an emergency at Employer’s request.

Moreover, as in City of Philadelphia , being “on call” did not necessarily requir e that Claimant travel to his workplace, as sometimes he could address the issues by telephone.

Here, Claimant was ill and intended to take a sick day. Indeed, although Claimant normally would have been on call for emergencies, he certainly would not
h ave been ex pected to come to work when ill and taking a sick day

. He was also not required to drive to work if a n emergency could be handled by him over the phone. The other employee who usually responded to issues about the security cameras, however, wa s not available , and when Employer specially requested that Claimant come in, Claimant acquiesced to that request. Claimant was “on the clock” from the moment he picked up the phone at home and fielded Ms. Seip’s specific request to fix the security camer as

.

For all the above reasons , the Board did not err in concluding that the

s pecial circumstances surrounding Claimant’s injuries fall within an exception to the “coming and going rule ,”

Accordingly, t he Board’s o rder is affirmed.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lutheran Senior Services : Management Company, :

Petitioner :

: No. 1074 C.D. 2016

v. : : Workers’ Compensation Appeal : Board (Miller), :

Respondent :

ORDER

AND NOW, this 15 th day of February , 201 7 , the o rder of the Workers’ Compensation Appeal Board , dated June 8, 2016, is hereby affirmed.

________________________________ PATRICIA A. McCULLOUGH, Judge