Bensing v. WCAB (JAMES MORRISSEY, INC.)

• Decision Date: 21 August 2003
• Citation: 830 A.2d 1075
• Parties: William H. BENSING, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (JAMES D. MORRISSEY, INC.), Respondent.
• Court: Pennsylvania Commonwealth Court

830 A.2d 1075

William H. BENSING, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (JAMES D. MORRISSEY, INC.), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 13, 2003.

Decided August 21, 2003.

William H. Bensing, petitioner, pro se.

Nancy M. Farese, Blue Bell, for respondent.

Before: COLINS, President Judge, and FRIEDMAN, Judge, and FLAHERTY, Senior Judge.

FLAHERTY, Senior Judge.

William Bensing (Claimant) petitions pro se for review of an order of the Workers' Compensation Appeal Board (Board) which affirmed the order of a Workers' Compensation Judge (WCJ) denying his Claim Petition. We affirm.

Claimant filed a Claim Petition alleging that, on May 20, 1997, he suffered injuries in an automobile accident while he was traveling to work. James D. Morrissey, Inc. (Employer) failed to file a timely Answer and also failed to appear at the first hearing before the WCJ. Accordingly, the WCJ issued an interlocutory opinion deeming the facts alleged in the Claim Petition admitted. However, the WCJ also noted that Employer was not precluded from raising legal defenses to the Claim Petition.

At the hearings before the WCJ, Claimant testified that he worked as a heavy equipment operator for Employer. This job required him to work at remote job sites until the job was completed or until Employer told him to go to another location. However, Claimant would also work at Employer's place of business in Philadelphia. Employer would often tell him the night before where to report for work the next day. Employer did not reimburse Claimant for any of his travel expenses nor did it provide any kind of transportation. On the day of his automobile accident on May 20, 1997, he had been working at the Acme job site since May 9, 1997 and was car-pooling there with two other employees. These three employees shared expenses by taking turns driving. Employer did not require that Claimant participate in the car-pool. However, Employer did inform employees who lived near each other that they would be working at the same location so they would have the opportunity to car-pool with other employees. During the time Claimant worked at the Acme job site, Employer did not send Claimant to work at any other location.

By decision and order circulated on April 6, 2001, the WCJ found that Claimant's employment contract did not include transportation to and from work, Claimant was not on a special mission for Employer, there were no special circumstances such that Claimant was furthering the business of Employer when he was commuting to the job site on the day of the accident and that the Acme job site constituted Claimant's fixed place of employment on the day of the accident. The WCJ also found that the mere possibility that Claimant could have been contacted by Employer's dispatcher and told to report to another job site after May 9, 1997 does not distinguish this case from the case of Foster v. Workmen's Compensation Appeal Board, 162 Pa.Cmwlth. 565, 639 A.2d 935 (1994),petition for allowance of appeal denied, 539 Pa. 683, 652 A.2d 1327 (1994). Accordingly, the WCJ concluded that Claimant was not in the course and scope of his employment at the time of the automobile accident on May 20, 1997. Claimant appealed to the Board, which affirmed the decision of the WCJ. This appeal followed.¹

On appeal, Claimant argues that: 1) Employer cannot challenge whether he was in the course and scope of his employment on the day of the accident after it failed to filed an Answer or appear at the first hearing and 2) he was in the course and scope of his employment on the day of the automobile accident.

With regard to Claimant's first argument, Section 416 of the Workers' Compensation Act (Act)² provides that:

Within twenty days after a copy of any claim petition or other petition has been served upon an adverse party, he may file with the department or its workers' compensation judge an answer in the form prescribed by the department. Every fact alleged in a claim petition not specifically denied by an answer so filed by an adverse party shall be deemed to be admitted by him. But the failure of any party or of all of them to deny a fact alleged in any other petition shall not preclude the workers' compensation judge before whom the petition is heard from requiring, of his own motion, proof of such fact. If a party fails to file an answer and/or fails to appear in person or by counsel at the hearing without adequate excuse, the workers' compensation judge hearing the petition shall decide the matter on the basis of the petition and evidence presented.

(emphasis added). "The failure to file a timely answer precludes an employer from presenting any evidence in rebuttal or as an affirmative defense with respect to those alleged facts; the WCJ may only consider the allegations set forth in the claim petition and any additional evidence presented by the claimant." Dandenault v. Workers' Compensation Appeal Board (Philadelphia Flyers, Ltd.), 728 A.2d 1001, 1004 (Pa.Cmwlth.1999). See also Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board, 56 Pa.Cmwlth. 1, 423 A.2d 1125 (1981); Heraeus Electro Nite Company v. Workmen's Compensation Appeal Board (Ulrich), 697 A.2d 603, 605 (Pa.Cmwlth.1997).

"However, we have held that failure to file a timely answer is not tantamount to a default judgment and the Claimant is still required to prove all elements necessary to satisfy an award ... and that questions of law are reviewable and cannot be waived by the failure to file a timely answer." Chik-Fil-A v. Workers' Compensation Appeal Board (Mollick) 792 A.2d 678, 688 (Pa.Cmwlth.2002) (emphasis added). Claimant's allegation that he suffered injuries as a result of his accident is a fact that Employer cannot now dispute. Conversely, Claimant's statement that he was in the "course and scope of employment" is a conclusion of law to be reviewed. Although a party can admit a factual event, it cannot admit how the legal effect of those facts should be characterized. Consequently, this Court has consistently held that "[w]hether an employee injured away from employer's premises sustained an injury in the course and scope of employment is a question of law to be reviewed based on the WCJ's findings of fact." Sloane Nissan v. Workers' Compensation Appeal Board (Zeyl) 820 A.2d 925, 927 (Pa.Cmwlth.2003) (emphasis added).

Therefore, whether the injuries that Claimant sustained in the automobile accident happened in the course and scope of his employment is a question of law and not a question of fact that could be admitted by Employer's failure to file an Answer or appear at the first hearing. Therefore, the WCJ was not precluded from deciding this question of law. On appeal, however, the Board and this Court may review the WCJ's decision to determine if the WCJ made the right decision regarding any question of law. Accordingly, we will now address whether the Board erred by affirming the WCJ's conclusion that Claimant was not in the course and scope of his employment at the time of the automobile accident on May 20, 1997.

Section 411(1) of the Act provides, in relevant part, that:

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

...

77 P.S. § 411(1). In Bradshaw v. Workmen's Compensation Appeal Board (Bell Hearing Aid Center), 163 Pa.Cmwlth. 486, 641 A.2d 664, 666 (Pa.Cmwlth.1994), this Court stated that:

As a general rule, injuries sustained by an employee traveling to or from his or her place of employment are not compensable under the Workers' Compensation Act. Unity Auto Parts, Inc. v. Workmen's Compensation Appeal Board (Bigley), 148 Pa.Cmwlth. 4, 610 A.2d 1071 (Pa.Cmwlth.1991), petition for allowance of appeal denied, 528 Pa. 618, 596 A.2d 801 (1991). This rule is grounded on the recognition that in the usual case, an employee traveling to or from work is not engaged in the furtherance of the employer's affairs. Peer v. Workmen's Compensation Appeal Board (B & W Construction), 94 Pa. Cmwlth. 540, 503 A.2d 1096 (1986).

There are exceptions to this rule, however, and an injury sustained by a claimant while going to or coming from work may be compensable if: (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. SEPTA v. Workmen's Compensation Appeal Board (Scott), 136 Pa.Cmwlth. 98, 582 A.2d 421 (Pa.Cmwlth.1990), petition for allowance of appeal denied, 527 Pa. 658, 593 A.2d 428 (1991). 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 his or her employment. Peer.

In Foster, the case cited by both the WCJ and the Board in support of their decisions, the claimant was injured in an automobile accident while leaving the job site at the end of the work day. The claimant testified that he was to report to a construction site until the employer's contract at that site was completed. During this time, it was not envisioned that claimant would report to any other job sites or work under the supervision of anyone except the employer. In addition, the claimant testified that he was to report to the same job site every day for an indefinite period. Therefore, this Court concluded that the claimant did have a fixed place of employment. Also, because the employer did not reimburse the claimant for his travel expenses nor was travel part of his contract for employment, none of the other exceptions to the going and coming rule applied. Therefore, the claimant was denied workers compensation...