Your Traveling Employee is always Working!

Your traveling employees have a Legal Presumption of remaining within the Scope of their Employment for purposes of your workers' compensation liability.

When your traveling employee is at a location, at the time of a serious motor vehicle accident, which you cannot explain on this basis of his regular work duties, you may still have liability for the resultant injuries.

Even though generally the employee has the burden to prove all of the elements of a work comp claim, in certain instances the roles are reversed and the Employer has the duty to prove the employee was not working!

K. Beatrice Food Service v. WCAB (Cragle) and Uninsured Employers Guaranty Fund, No. 477 C.D. 2012, an unpublished memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on May 20, 2013, addressed this issue.

[Cragle also involved issues regarding the status of certain individuals as owners of the employer business and their status as an uninsured employer.]

Workers' Compensation liability for traveling employees can be rather expansive.
Even though the employee has the burden of proof to establish all of the elements in a Claim Petition, this significant burden to establish an injury "arising in the course of employment" and was "related thereto", may be diminished, where no one can explain the "reason" for the traveling employee's location at the time of an accident.

A non-traveling employee will experience denial of his/her claim, under similar circumstances.
Why the difference?

The General Rule regarding traveling employees has emerged over the years, by the decisions of Appellate Judges.  An employee setting out on the business of his/her employer, remains within that course of employment, UNLESS the employer can prove that the employee engaged in an act so foreign to his employment, that there is a distinctive break, so as to constitute an abandonment of that employment.
See: Pfizer, Inc. v. WCAB (Gresham) (Pa. Cmwlth. 1989) and Buckeye Pipe Line Co. v. WCAB (ABT) (Pa. Cmwlth. 1998) among others.

Factual Background & Procedural History
In the instant case Cragle, a truck driver/delivery person drove his truck across a northbound lane, struck a sign, then traveled across the northbound and southbound lanes where he struck a tree.
His physical and mental injuries were so severe he was incapacitated and unable to speak.

Employee's court appointed guardians (his parents) filed a Claim Petition.
In the ensuing litigation, the Employer witnesses testified that it was a known policy was that employees could not use the truck for personal use. At the warehouse, Employer provided Employee with a list of invoices with the customer addresses and the order of deliveries, but Employer did not dictate the specific route to reach each scheduled destination.

On the date of injury Employee made his two scheduled morning deliveries and returned to the warehouse to reload for afternoon deliveries. These afternoon deliveries, called the "Valley run" were all located SOUTH and SOUTHWEST of the warehouse. Employee had departed and crashed approximately 3 miles NORTHWEST of the warehouse, the OPPOSITE direction of his scheduled afternoon deliveries.
Employer testimony admitted Employee "could have" taken this route to get to one of the "Valley" deliveries, but it was out of the way and impractical.

WCJ decided the employee was in the course of his employment at the time of injury.
His rationale?

"The only grounds for [Employer] alleging that [claimant] was not in the course of his employment was the fact that [claimant] was two or three miles north of [employer's] warehouse whereas his destinations ... were to the south of the warehouse".

That [claimant] was a few miles to the north of the warehouse is insufficient to lead  to any reasonable conclusion that he had deviated from his job duties and taken himself out of the course of employment".

"It is reasonable to conclude [claimant] got into his truck without thinking of his exact destination and started north by mistake".  (WCJ decision finding #3).

My argument is that it is equally reasonable to conclude this Employee was going somewhere else, other than the location of his first afternoon work delivery!

In the absence of this "presumption", given to traveling employees, this Employee would not prevail as he cannot establish a work relationship to his activities at the time of the accident. Frankly, whichever party has the burden of proof would fail, as there is no evidence, no explanation for Employee's actions and location at the time of this accident. As the presumption places the burden upon Employer to establish that Employee was not working... they cannot do so...they cannot prevail.

Commonwealth Court affirmed this claim petition award and reasoned the WCJ did not err in concluding Employee was in the course of his employment at the time of his motor vehicle accident.

Employer's argument that they rebutted the presumption via evidence of Employee's errant location was rejected. They argued Employee was (1) miles away from his delivery route, (2) traveling in the opposite direction, (3) there was no evidence he was there for any business purpose and (4) this deviation from work assignments was not minor.

The Commonwealth Court referenced a notorious case to support their scope of employment and personal deviation analysis ... Roman v. WCAB (DER) (Pa. Cmwlth. 1992). 
In Roman, the Court reversed a WCJ denial of a claim petition, reasoning that a traveling construction inspector, was entitled to a presumption he remained within the course of his employment, despite testimony he would regularly visit his girlfriend, when traveling in the area of her residence. The WCJ had rejected the credibility of Roman's testimony that he was traveling to his hotel room, not to his girlfriend's house at the time of his one-vehicle accident . However, on appeal Employer's evidence was deemed "woefully inadequate" for the purpose of rebutting the presumption and for showing that he had abandoned his employment.

In the instant case, analysis of this scope of employment issue is limited to conjecture. The WCJ observed no one may ever know why this employee was at that precise location at that time of day.
"The possibilities are endless and equally inferential". It is said that the WCJ drew the inference that employee drove northbound by mistake. (is this an inference or a guess?)

The Court "reasoned", that Employee routinely travels these delivery routes. Despite the Employee experience with these driving routes, there is nothing to suggest that it was impossible for him to make such a mistake, ie, driving in the wrong direction.
(is that a convincing statement?)

So this Employee was at this accident location through an inadvertent mistake... a conclusion that places him within the scope of his employment... and a conclusion that is not supported by any evidence, other than this is the "inference" selected by the WCJ to provide an "explanation" to a situation without any explanation. Not a very satisfying means to assign legal liability in a tough case.

Practice Pointers:

1.   As a general policy, Employers must strictly enforce any limitations upon the use of work vehicles.
This may limit the argument that employees have been "allowed" to use vehicles for personal errands.
Such flexibility in the work rules will allow the argument that those personal activities are not a deviation from one's employment relationship... as they have become "part of the job".

2. This accident investigation identified many relevant facts which supported the employer's position that this employee was not in the usual place, if he was actually conducting his usual work activities. I'm not sure you could improve upon this factual defense.