              N THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason LePore,                                :
                        Petitioner           :
                                             :
                 v.                          :    No. 1494 C.D. 2015
                                             :    Submitted: January 29, 2016
Workers’ Compensation Appeal                 :
Board (Full Phaze Construction,              :
Inc.),                                       :
                  Respondent                 :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                             FILED: May 11, 2016

                 Jason LePore (Claimant) petitions for review of an adjudication of the
Workers’ Compensation Appeal Board (Board) denying his claim petition under
the Workers’ Compensation Act (Act).1               In doing so, the Board reversed the
decision of the Workers’ Compensation Judge (WCJ) that Claimant had no fixed
place of work and was on a special mission at the time of his automobile accident.
Concluding that Claimant was not injured in the course and scope of his
employment, we affirm.
                 Claimant worked for Full Phaze Construction, Inc. (Employer) as a
carpenter from March 2012 until April 24, 2012, at a final rate of pay of $14.50 an
hour. Claimant’s job required him to work at various job sites throughout the state.
Claimant did not report to Employer’s main office each day but, rather, commuted


1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
directly from home to the site of the project to which he was assigned. Claimant
brought his own hand tools with him to each job site. Claimant was responsible
for keeping track of his hours and turning in his time slips to Employer’s main
office.   On April 24, 2012, while commuting from his home to a job site,
Claimant’s car was struck from behind by another vehicle. Claimant suffered
significant injuries as a result of the collision.
              On June 3, 2013, Claimant filed a claim petition alleging that the
injuries he sustained in the car accident were work-related and seeking full
disability benefits from April 24, 2012, onward.       Employer filed an answer
denying Claimant’s averment that his injuries were work-related. Employer issued
a Notice of Workers’ Compensation Denial on July 1, 2013. The WCJ bifurcated
the matter to first determine whether Claimant was in the course and scope of his
employment at the time of his accident and, second, to determine whether
Claimant’s injuries arose from the incident. The WCJ conducted hearings on July
22 and November 5, 2013.
              At the July 22 hearing, Claimant’s testimony was the sole evidence
presented.    Claimant’s testimony focused on where Claimant performed his
carpentry for Employer. In that regard, Claimant testified as follows:

              [Counsel for Claimant]: Now, on [April 24, 2012] you
              were…working at [Employer’s] rental property; right?
              [Claimant]: Yes.
              [Counsel for Claimant]: How long did you anticipate working
              at that particular location?
              [Claimant]: We would jump from job to job. So another job
              came up if we were waiting on permits. We were re-doing ---



                                             2
              we were remodeling the rental apartments.[2] At that time we
              were doing a bathroom.
              [Counsel for Claimant]: Okay. And the time that you were
              working with [Employer], how many different job sites did you
              work at?
              [Claimant]: I’d say about eight to ten --- between eight and ten.

Notes of Testimony (N.T.), 7/22/2013, at 11; Reproduced Record at 29a (R.R.
___).
              Ken Kale, Employer’s president and owner, testified at the November
5, 2013, hearing. Kale testified that Claimant was not given a company car for his
travel nor was he paid for his travel between work sites. Kale also clarified how
employees split their time between multiple projects:

              [Counsel for Claimant]: How many projects did you have going
              on simultaneously?
              [Kale]: Most of the time just one, unless we’re --- like today we
              actually got two going on. Because we’re --- day that that
              guy’s doing siding. So we’re getting ready for this --- coming.
              Usually once we’re on a job, we’re usually there until we start
              and finish. So sometimes two.
N.T., 11/5/2013, at 19; R.R. 79a. Kale continued:

              We never bounce around from job to job. Once we’re on a job,
              we’re there for the day. We never leave the job --- we only
              work eight hours a day. It wouldn’t make any sense for him to
              be working one job for what [sic] hours and then travel all the
              way across the county to another job, what would that prove.
              We wouldn’t have time to do anything[.]
2
  When testifying in rebuttal, Employer’s president and owner, Ken Kale, disputed Claimant’s
contention that he was remodeling Employer’s rental property on April 24, 2012. According to
Kale, Claimant was assigned to an entirely different job site that day. Although the WCJ
resolved all credibility determinations in Claimant’s favor, the location of Claimant’s work site
on the day of the incident is not material to our disposition.


                                               3
Id. at 34; R.R. 94a.
             On December 26, 2013, the WCJ issued an interlocutory order
concluding that Claimant was in the course and scope of his employment at the
time of his accident. The parties agreed that Claimant’s medical evidence could be
admitted in the form of an independent medical examination report. On May 16,
2014, the WCJ issued a decision granting Claimant’s claim petition. The WCJ
found Claimant more credible than Kale based on the demeanor of the witnesses.
The WCJ further found that Claimant was injured while on his way to do work at a
rental property owned by Kale. The WCJ concluded that “Claimant did not have a
fixed place of employment on the day he was injured … [and] Claimant was on a
special mission for [Employer] at the time of his injury.” WCJ Decision at 6; R.R.
17a.
             Employer appealed the WCJ’s decision to the Board. On August 4,
2015, the Board issued an adjudication reversing the WCJ’s order. The Board
concluded:

             We cannot agree that Claimant had no fixed place of work.
             Rather, his testimony shows that, like the claimant in [Foster v.
             Workmen’s Compensation Appeal Board (Ritter Brothers, Inc.),
             639 A.2d 935 (Pa. Cmwlth. 1994)], he reported to a worksite
             for an indefinite period of time and working at more than one
             worksite per day was not an everyday occurrence.
             Neither can we agree that the special mission exception applies.
             The court in Action, Inc .[v. Workmen’s Compensation Appeal
             Board (Talerico)], 540 A.2d 1377 (Pa. Cmwlth. 1988),
             concluded that a claimant performing a normal function of his
             employment, such as attendance at a monthly meeting or
             working at a different store when necessary, was not on a
             special mission.

Board Adjudication at 6; R.R. 9a. Claimant petitioned for this Court’s review.

                                         4
              On appeal,3 Claimant presents two issues for our review.4                   First,
Claimant argues that the Board erred in concluding that Claimant had a fixed place
of work. Second, Claimant contends that the Board erred in concluding that
Claimant was not on a special mission for Employer. We agree with Employer that
the Board did not err in resolving these issues and finding that Claimant was not
within the course and scope of his employment at the time of his accident.
              Under Section 301(c) of the Workers’ Compensation Act, a claimant
is eligible for benefits when he sustains injuries “in the furtherance of the business
or affairs of the employer, whether upon the employer’s premises or elsewhere.”
77 P.S. §411(1). However, a claimant is generally not eligible for benefits for
injuries sustained traveling to his place of employment from his home. Leisure
Line v. Workers’ Compensation Appeal Board (Walker), 986 A.2d 901, 906 (Pa.
Cmwlth. 2009). This rule, known as the “coming and going” rule, “is grounded on
the recognition that an employee’s travel to or from work does not further his
employer’s business.” Id.
              There are four recognized exceptions to the coming and going rule. A
claimant may collect workers’ compensation benefits for injuries sustained
travelling between his home and his place of employment if:



3
  On review this Court determines whether an error of law was committed, necessary findings of
fact are supported by substantial evidence, or constitutional rights were violated. Village Auto
Body v. Workers’ Compensation Appeal Board (Eggert), 827 A.2d 570, 572 n.4 (Pa. Cmwlth.
2003).
4
  Claimant raises two additional issues challenging the Board’s reliance on the WCJ’s findings of
fact. Essentially, Claimant argues that the Board improperly made its own findings of fact
contrary to the WCJ’s. This argument is meritless. The Board explained that it was bound to
follow the WCJ’s findings of fact and had no need to make new findings. See Board
Adjudication at 5; R.R. 8a.


                                               5
            (1) the employment contract included transportation to and
            from work;
            (2) the employee has no fixed place of work;
            (3) the employee is on a special mission for the employer; or
            (4) special circumstances are such that the employee was
            furthering the business of the employer.

Id. Only the second and third exceptions are at issue in the matter sub judice. The
burden was on Claimant to demonstrate that he qualified for one of those two
exceptions. Id.
            Claimant first contends that he did not have a fixed place of work
because he worked at multiple project sites and was present at each site for a
limited period of time. The Board held that Claimant’s situation was similar to that
of the claimant in Foster, 639 A.2d 935, who was held not to be injured in the
scope of his employment. This Court recently summarized Foster as follows:

            There, the claimant was a carpenter doing construction work at
            a mall. The claimant travelled directly to the location of
            whatever project he was assigned by his employer. The
            claimant was injured in a car accident in the parking lot of the
            mall he was remodeling. This Court held that the claimant was
            not a travelling employee; rather, he was assigned to work at a
            particular project until the project’s completion and was not
            going to report to any other work site or work under the direct
            supervision of anyone other than the employer during that time.

Mansfield Brothers Painting v. Workers’ Compensation Appeal Board (German),
72 A.3d 842, 848 (Pa. Cmwlth. 2013).
            Here, Claimant was assigned to different project locations and never
worked under the supervision of any individual other than Employer’s owner, Ken
Kale. Although Claimant’s specific work location changed, that fact alone does
not make Claimant a “travelling employee.” “The fact that a job has a discrete and
                                         6
limited duration does not make the employee who holds it a travelling
employee[.]” Id. For this reason, the Board did not err when it held that Claimant
had a fixed place of work and, therefore, was ineligible for workers’ compensation
benefits under the coming and going rule.
             Claimant next argues that the Board erred in concluding that he was
not on a special mission for Employer at the time of his accident. The Board held
that Action, Inc., 540 A.2d 1377, is instructive on this issue. In Action, Inc., the
claimant’s husband had just returned home from a monthly meeting of insurance
claims adjusters when he slipped on ice in his driveway and impaled himself on a
pipe. He was fatally injured. Although the decedent was not paid to attend the
monthly meetings, his employer expected him to attend and paid his monthly dues.
When the claimant applied for fatal claim benefits, she argued that the decedent
was within the course and scope of his employment at the time of his death
because his attendance at the monthly meeting amounted to a “special mission.”
This Court disagreed. We explained:

             [A]ttendance at [the] monthly meetings[ ] was understood to be
             a normal function of his employment. As such, it did not
             constitute a “special mission.” When he left the meeting to
             return home, he had no further obligation to [the employer] and,
             like any other work day, was merely enroute home.

Action, Inc., 540 A.2d at 1379.
             Here, Claimant’s attendance at different job sites was a normal part of
his job.    There was nothing special, unique, or out-of-the-ordinary about
Claimant’s travel on April 24, 2012. Claimant was en route to his assigned work
site for the day, just like any other day. Therefore, like the claimant in Action, Inc.,




                                           7
Claimant was not on a special mission for Employer and the injuries he sustained
in an accident that occurred as he commuted to work were not compensable.
            Because Claimant does not qualify for any of the exceptions to the
coming and going rule, we agree with the Board that he was not injured in the
course and scope of his employment. Accordingly, we affirm the Board’s order.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge




                                       8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason LePore,                       :
                  Petitioner        :
                                    :
            v.                      :   No. 1494 C.D. 2015
                                    :
Workers’ Compensation Appeal        :
Board (Full Phaze Construction,     :
Inc.),                              :
                  Respondent        :


                                  ORDER

            AND NOW, this 11th day of May, 2016, the order of the Workers’
Compensation Appeal Board dated August 4, 2015, in the above-captioned matter
is hereby AFFIRMED.
                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
