The
Supreme Court of Pennsylvania recently reviewed the scope of an Employer’s
liability for an injury sustained after a traveling employee attended an Employer-sponsored social event.
As
we approach the time of the year for Employer-sponsored Holiday and End-of
-the- Year social gatherings, the analysis of the traveling employee doctrine
by the Pennsylvania Supreme Court is both informative and instructive for
employers, insurers and workers’ compensation practitioners.
See:
PETERS v. WCAB (CINTAS CORPORATION), No. 1 MAP 2020;
DECIDED:
November 17, 2021, authored by JUSTICE MUNDY
(Appeal
from the Commonwealth Court at No. 1835 CD 2017 dated July 18, 2019 Affirming
the decision of the WCAB at No.A16-1263 dated November 16, 2017.)
HOLDING:
An
Employee who travels in the course of their work-related duties is presumed to
remain within the scope of employment when attending an Employer-sponsored
social event. An Employer is responsible for injury sustained by the Employee, after
his departure from that work-related event - if he did not abandon his employment
prior to the accident, via actions which “were so foreign to and removed
from his usual employment that they constitute an abandonment of that
employment.”
This
case was remanded to the WCJ for additional fact-finding to resolve the
conflicting testimony of the Employee and his sales manager, as to whether the
Employee was traveling back to his home or traveling to/from another non-work
event, at the time of his accident.
Although
there was no announcement of a new rule of law, or even a final determination
in this specific case, the analysis employed by the Pennsylvania Supreme Court
is instructive for Employers and their Workers’ Compensation insurers, when assessing
issues of responsibility for injury occurring in work-related travel and social
function attendance.
Factual
Background
Factual
distinctions may determine the compensability of an injury. In the instant case,
the facts reflect that this Employee was engaged in work-related travel as a
regular part of his work duties. He was employed as a uniform sales
representative, which included three half-days in the Employer’s office and
travel for the remainder of the work week, to meet with potential customers and
present products in his sales region.
Following
his last sales appointment, Employee drove pass the highway exit to his home,
on his way to an Employer-sponsored event at a local pub. After leaving that event,
the Employee was injured in a motor vehicle accident. A claim petition was
filed to seek benefits, as Employee alleged the motor vehicle accident occurred
during the course of his employment.
Employee
testified that his sales manager invited the sales representatives to this pub
event. Employee described this event as a celebration to mark the end of a
“sales blitz”. These types of events were held on prior occasions during
sales blitzes. He believed these events
to be “sort of” mandatory. At the event, he said there was a recap of the work
performed during the sales blitz. Food and drinks were paid by the Employer.
Employee testified that after he left the event he was involved in a motor
vehicle accident, which occurred on his way home.
Conflicting
testimony was presented regarding the description and nature of the pub event.
Employer testimony from a sales representative and a Sales Manager confirmed this
type of event was routinely held during sales blitzes, as a “voluntary perk”. Contrary
to the Employee’s testimony, they both emphasized the voluntariness and social
nature of the event. They described this as a chance for the sales
representatives to relax after the sales blitz. They disputed the Employee’s
representation that the sales blitz work was recapped at the event. The sales representative
specifically testified that work was not discussed during the event, rather the
conversations were general “chit chat.”
The
Sales Manager testified that he received a call from the Employee later that
evening, reporting that he had been in a motor vehicle accident. Significantly,
He further testified that during this phone conversation that Employee
stated that he was not on his way home from the pub event at the time of the
motor vehicle accident, but rather he was on his way from some other event.
However, the Sales Manager testified that he could not recall
specifically where the Employee said he was coming from. (this
becomes relevant in the final analysis of this claim).
Supreme
Court Analysis
As
noted above, the Supreme Court did not announce a new rule of law regarding the
scope of compensability of injury sustained by a traveling employee. As a
starting point in its analysis, the Supreme Court cited Section 301(a) of the
Act, for the proposition that an employer is liable for compensation for injury
or death sustained in the course of one’s employment. An employee’s injury is
considered to have arisen in the course of employment in the following
two circumstances:
When an employee is injured on or off the employer’s premises while engaged in
furtherance of the employer’s business or affairs;
When
an employee is not furthering the employer’s business or affairs but
nonetheless is
on the premises occupied or under the control of the employer; upon which the
employer’s business or affairs are being carried on;
When required by the nature of his employment to
be present on his employer’s premises; and sustained
injuries caused by the condition of the premises or by operation of the
employer’s business or affairs thereon. (301(a).
In the litigation of a claim petition, the injured worker has the burden of proof to
demonstrate that his/her injury was sustained in the course of employment.
In
the instant case this Employee was injured off Employer’s premises. Therefore, for
this accident to be considered to have “arisen in the course of his
employment”, the Employee must have been furthering the business and affairs
of the Employer at the time of his motor vehicle accident.
The
Traveling Employee Presumption
The
Supreme Court reviewed the historical development of the traveling employee
doctrine. Employee argued that he was in the course of his employment at
the time of his motor vehicle accident, pursuant to this doctrine.
The
traveling employee doctrine provides:
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. The employer bears the
burden of rebutting the presumption. To meet its burden, the employer must
prove that the employee’s actions were so foreign to and removed from his
usual employment that they constitute an abandonment of that employment.
Temporary
departures from the work route for the purpose of administering to the comforts
of an off-the-premises employee, including authorized breaks for lunch, will
not interrupt the continuity of the one’s course of employment.
For
example, a traveling salesperson cannot carry out the business of the employer
without traveling to present products and solicit business. As such, the act of
traveling, in and of itself, furthers the business and affairs of a traveling
employee’s employer. So too do the activities incidental to travel such as
lodging, refueling, and stopping for food and drink. During their travels,
traveling employees are subject to the risks associated with travel that
stationary employees are not. Therefore, the “hazards of travel become the
hazards of employment”. See: Ball-Foster
Glass Container Co.
Application
of the Traveling Employee Doctrine
The
Supreme Court rejected the Employer’s argument (and the WCJ, WCAB and Commonwealth
Court conclusion) that this Employee abandoned his employment when he passed
the highway exit to his home and proceeded to the pub event, as his attendance
was not mandatory for his employment nor was the event “work-related.”
It
was not disputed that this individual was a traveling employee. As such, he is
presumed to remain in the course of his employment, unless the employer rebuts
the presumption by showing that his actions, at some point prior to the injury,
constituted abandonment of his employment.
The
Supreme Court concluded that this Employee did not abandon his employment by
attending the pub event. The WCJ found testimony was credible that these types
of events were regularly held during sales blitzes. The Court reasoned that it
would be difficult to conclude that attending a regularly held type of event
constituted an act so foreign to and removed from his regular employment to be
considered abandonment of employment.
Also,
the WCJ found the event to be voluntary and social in nature. However, those
facts, do not mean the event was not work related! The Employer hosted and
sponsored the event. While work may not have been discussed at the event, the
event still benefited Employer by fostering relationships and improving morale.
See: Investors Diversified Services.
The
Supreme Court could not conclude that this Employee abandoned his employment by
attending the pub event. But their analysis did not end there, as there remains
a question as to whether the Employee abandoned his employment sometime between
leaving the pub event and the occurrence of the motor vehicle accident.
The
record reflects conflicting testimony as to where this Employee was coming from
at
the time of the motor vehicle accident. The WCJ did not
explicitly resolve this conflicting testimony. As the conflicting witness
testimony was unresolved, this leaves open the question of whether the Employee
took some action after leaving the pub event that could constitute abandonment
of his employment.
As often stated, “the WCJ is the ultimate finder of fact and the exclusive arbiter of
credibility and evidentiary
weight". The Supreme Court remanded this case to the WCJ to resolve the
conflicting testimony with respect to whether the Employee was coming from the
pub event at the time of his accident or coming from some other unknown non-work event.
Recommendations:
1.
This decision was not an announcement of a new rule of law
regarding the extent of compensability for injury to a traveling employee. Rather, this decision
reflects an analysis of the existing law with application to the specific facts
presented, to reach a different conclusion regarding the compensability of an injury
sustained after attendance at a work event.
To properly assess the compensability
of an injury to a traveling employee, the Work Comp professional must engage in
a thorough investigation of the facts, including the past practices of the
Employer.
2.
The assessment of responsibility for injury to a non-traveling
employee, sustained after attendance at a work-related event is different.
As cited by the Supreme
Court, in the past, a non-traveling employee, injured after attendance
at a work related event, may not be in the course of employment after
the event has ended and the employee is traveling home.
Citing: Brown
v. WCAB
(Liken Employment Nursing Services) (Pa.Cmwlth. 1991), and Canning
v. WCAB
(Pa. Senate)
(Pa. Cmwlth. 2015) The claimant in Brown, who was not a traveling employee,
was struck by a motor vehicle while crossing a public roadway after leaving her
employer’s annual Christmas party held at the employer’s office. The Commonwealth
Court concluded that even if the party benefited the employer by cultivating
interpersonal relationships, the claimant was not furthering her employer’s
business at the time of her accident because she was injured while returning
from the employer’s party and not while attending the social event.
Query: would the result
in Brown be different after the Peters decision ?
What about the “special
mission” line of cases, which can expand the Employer’s liability to a non-traveling
employee?
In preparation of one's defense to a claim, one must carefully investigate
the facts presented regarding: (i) the details of the employment; (ii) the
details of the event; (iii) the past practices of the Employer regarding events.
