The Going and Coming Rule Applied to a Union Electrician Foreman

06.05.18

Category: Pennsylvania

In Pennsylvania workers' compensation law the "going and coming rule" generally excludes coverage for injuries occurring during normal commuting to and from work as outside the course and scope of employment. There are several exceptions to that rule that allow WC coverage to apply. In the recent decision of Kush v. WCAB (Power Contracting Company) No. 1688 C.D. 2117, Filed: May 17, 2018, the Commonwealth Court reviewed two of those exceptions and found they did not apply under the facts of the case.

A union electrician foreman worked for two different employers at different job sites to supervise electrical work. One employer, Vantage, supplied him with a vehicle that he drove to work and a credit card for gasoline. The other employer, Power Contracting, paid for fuel for drives to its job sites. The employee would drive directly to the job sites for both without reporting to headquarters. During one such drive from home to a Power Contracting site he was injured in a motor vehicle accident. His claim petition against Power Contracting for WC benefits was denied by the WC Judge and the denial was affirmed upon appeal.

The Commonwealth Court concluded that the exception for "no fixed place of employment" did not apply under the facts of this case. The foreman worked at a fixed place of employment. He had worked exclusively at the Power Contracting job site for several weeks before the accident and had anticipated working only at that that site on the day of the accident. The Commonwealth Court reasoned that even though the duration of the job may have been discrete and limited that did not make him a traveling employee.

The Commonwealth Court also concluded that the exception for an "employment contract providing transportation to and from work" did not apply. The Court determined that the employer, Power Contracting, did not "provide or control the means of the commute." The other employer, Vantage, provided the truck to claimant. The court also noted that while Power Contracting provided fuel reimbursement it did not compensate the injured worker for travel time to and from work, unless he was assigned to pick up a piece of equipment, which was not the case on the day of the accident.

Comment: The application of the "going and coming" rule and its exceptions to determine whether WC coverage applies requires a careful analysis of the specific facts of each case. The first step in that analysis is to determine whether the employee has a fixed place of work because "traveling employees" are given a greater scope of employment in this analysis.

For more information, please contact Stephen T. Potako at spotako@wglaw.com or 267.765.4132 or Peter J. Weber at pweber@wglaw.com or 215.972.7901. 

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Lexi Burchmore
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lburchmore@wglaw.com

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