            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allied Fire Protection Systems                  :
and Zurich American                             :
Insurance Company,                              :
                    Petitioners                 :
                                                :
               v.                               :   No. 1975 C.D. 2016
                                                :   SUBMITTED: April 28, 2017
Workers' Compensation                           :
Appeal Board (Warner),                          :
                Respondent                      :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                            FILED: August 25, 2017


               Allied Fire Protection Systems and Zurich American Insurance
Company (Employer) petition for review of an order of the Workers’
Compensation Appeal Board (Board) that affirmed the order of a Workers’
Compensation Judge (WCJ) granting the fatal claim petition of Nancy Warner
(Claimant) with respect to the death of her husband Scott Warner (Decedent). The
sole issue on appeal is whether the Board erred in determining that Decedent was
in the course and scope of his employment at the time of his motor vehicle accident
under Section 301(c) of the Workers’ Compensation Act.1 We affirm.



   1
       Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411.
             Decedent served as a vice president and project manager for
Employer, a fire protection business that installed sprinklers in commercial,
residential, and industrial settings. Having worked for Employer for twenty-seven
years, Decedent had an office in Falconer, NY, where Employer’s president
calculated he spent eighty percent of his time. December 14, 2015, Decision of
WCJ, Finding of Fact (F.F.) No. 6. Decedent’s typical day started at 7:00 a.m.,
after which there would be a supervisory meeting where everyone met and
discussed the duties for the day. Decedent would then meet with his design
assistant and work on various submissions.          In addition, he might work on
hydraulic calculations or have conversations with customers. Decedent also spent
twenty percent of his time traveling to job sites. He usually began the day at the
office and ended it there, even if he travelled to job sites during the course of the
day. Although he was not required to stop at work before traveling to a job site,
that was typically his practice depending on the proximity of the job. Id.
             On the morning of December 20, 2012, Claimant spoke with
Decedent very briefly at which time he relayed that he would be heading out to bid
a job at Rouse Estates in Youngsville, PA. Having been married since 1981,
Claimant acknowledged that Decedent had pre-existing hypertension and coronary
artery disease but credibly testified that he seemed fine when she spoke with him
that morning. Id., No. 5. Decedent left his home in a company vehicle and was en
route to Rouse Estates when he was involved in a motor vehicle accident. Id.
Despite driving a company vehicle, Decedent normally used his personal vehicle
for business and submitted mileage reimbursement requests. Id., Nos. 6 and 17.
At that time, however, Decedent had requested the use of a company vehicle due to
difficulties with his personal truck. Id., No. 6.



                                           2
               After the accident, Decedent was transported to Warren Hospital and
then life-flighted to UPMC Hamot where the on-call trauma surgeon, Dr. Paul J.
Malaspina, ascertained that Decedent was bleeding both inside his skull and
abdomen. Despite life-saving efforts, Decedent succumbed to his injuries the next
day. Dr. Malaspina readily acknowledged that Decedent might have suffered a
stroke before his motor vehicle accident, but opined that he died as a result of the
injuries that he sustained in the accident in combination with having a stroke. Id.,
No. 18. In any event, the WCJ accepted the doctor’s opinion that the injuries
Decedent sustained in the accident were a significant contributing factor in his
death and that determination is not at issue in the present case. Id., No. 10.
               In December 2014, Claimant filed a fatal claim petition (1) alleging
that Decedent died in a December 2012 automobile accident as a result of an intra-
abdominal hemorrhage and a cerebrovascular accident in the course and scope of
his employment; and (2) seeking indemnity benefits and reimbursement for funeral
expenses. Employer filed a timely answer denying the material allegations of the
petition. The WCJ granted the petition, determining that Decedent was on a
special mission for Employer and furthering its business on the date of the
accident. The Board affirmed on different grounds, concluding that Claimant was
a traveling employee at the time of his accident. Employer’s petition for review
followed.2
               The claimant in a fatal claim petition bears the burden of proving all
of the criteria necessary to support an award, including an injury arising in the

    2
       The question of whether an employee is acting within the course and scope of employment
at the time of injury or death is a legal question to be determined from the factual findings and is
subject to this Court’s plenary review. Fonder v. Workers’ Comp. Appeal Bd. (Fox Integrated),
842 A.2d 512, 514 (Pa. Cmwlth. 2004).



                                                 3
course of employment resulting in the decedent’s death. Reading Anthracite Co. v.
Workers’ Comp. Appeal Bd. (Felegi), 789 A.2d 404, 408 (Pa. Cmwlth. 2001).
Pursuant to the “going and coming rule,” injuries that an employee sustains while
traveling to and from work are not compensable because he is neither on the
employer’s premises nor engaged in the furtherance of its affairs.                    Peer v.
Workmen’s Comp. Appeal Bd. (B & W Constr.), 503 A.2d 1096, 1098 (Pa.
Cmwlth. 1986). Accordingly, in order to establish that an off-site injury or death
occurred during the course of employment, a claimant must establish one of four
exceptions: (1) the employee’s contract includes transportation to and from work;
(2) the employee has no fixed place of work (traveling employee); (3) the
employee is on a special mission for employer; or (4) special circumstances exist
such that the employee was furthering the employer’s business.                      Wachs v.
Workers’ Comp. Appeal Bd. (Am. Office Sys.), 884 A.2d 858, 861-62 (Pa. 2005).
              In the present case, the WCJ invoked both the special mission and the
special circumstances exceptions. Specifically, the WCJ determined that Decedent
was on a special mission for Employer and also was furthering its business by
bidding the job and doing so before going to his office, thereby avoiding
backtracking and further time and expense to Employer. We agree with the WCJ
that Decedent was furthering Employer’s business on the morning of the accident
such that the catch-all special circumstances exception to the going and coming
rule was satisfied.3 Accordingly, we need not address the other two exceptions
cited by the WCJ and the Board.

       3
         Employer raised and/or preserved challenges only to the special mission and traveling
employee exceptions in its petition for review. However, it is well settled that this Court may
affirm for any reason and is not limited to grounds raised by the parties. McAdoo Borough v. Pa.
Labor Relations Bd., 485 A.2d 761 (Pa. 1984) (citing Commonwealth v. Meyer, 412 A.2d 517
(Footnote continued on next page…)


                                               4
               In concluding that Decedent was furthering Employer’s business at
the time of his accident, the WCJ as the ultimate factfinder considered all of the
circumstances garnered from the credible evidence and determined that Decedent
was “furthering the business affairs of his Employer by bidding the job and also by
doing this before going to his office in Falconer, New York rather than traveling all
the way [there] and then turning and backtracking to Rouse Estates thus causing
further time and expense for his Employer.” Conclusion of Law No. 5. In support,
the WCJ referenced the president’s testimony on cross-examination that, if
Decedent was going to Rouse Estates, it would have been related to his job duties
and not for personal reasons.4 The WCJ also cited Claimant’s testimony that
Decedent relayed to her that he was going directly from home to the job site.
Accordingly, given what can be characterized as the special circumstances of the
relative locations of Decedent’s home to Employer’s office and Rouse Estates,
Decedent was furthering Employer’s business at the time of his accident and,
therefore, Claimant satisfied the fourth exception to the going and coming rule.
               Although William F. Rittner Co. v. Workmen’s Compensation Appeal
Board (Rittner), 464 A.2d 675, 678-79 (Pa. Cmwlth. 1983), involved two
exceptions to the going and coming rule (special circumstances such that employee
was furthering employer’s business and the employee’s employment contract
included transportation) we find it to be instructive. Rittner involved a stationary
employee who was fatally injured while driving a company vehicle to work. We
_____________________________
(continued…)
(Pa. 1980); Commonwealth v. Dancer, 331 A.2d 435 (Pa. 1975); Gilbert v. Korvette, Inc., 327
A.2d 94 (Pa. 1974); Prynn Estate, 315 A.2d 265 (Pa. 1974); Concord Twp. Appeal, 268 A.2d
765 (Pa. 1970)).
     4
       The only portion of the president’s testimony that the WCJ discredited was his opinion that
Decedent was traveling from home to Employer’s office at the time of the accident. F.F. No. 17.



                                                5
concluded that the circumstances as a whole, the need to have the vehicle
constantly available to respond to emergencies in the operation of the employer’s
business, constituted the requisite special circumstances to support the conclusion
that the decedent was in the scope and course of his employment at the time of the
accident. In addition, we determined that, even if the claimant was required to
establish that the decedent was actually engaged in a work assignment at the time
of the accident, she could have done so in light of the undisputable fact that it was
necessary for him to drive the van back and forth each day to work in order to
comply with employer’s requirement that he be available to respond to
emergencies at any time during the day or night.
             The instant case presents even stronger facts than those in Rittner.
Decedent was headed to a job site for business purposes and the WCJ determined
that the relative distances and locations indicated that his endeavor benefited
Employer and furthered its business. As the president testified, although Decedent
usually began his day at the office and ended the day there, he was not required to
stop at work before traveling to a job site, but that was typically his practice
depending on the proximity of the job. In other words, Decedent might go to the
job site first depending on the circumstances. In that regard, even though the WCJ
did not use the magic words “special circumstances” in describing the respective
locations and distances, it is clear from the decision that the fourth exception was
in play. In any event, absent contrary evidence, the WCJ was free to make the
finding that by first traveling to Rouse Estates and then to Employer’s office,
Decedent was avoiding the time and expense of backtracking to Employer’s
benefit and furthering its business. See Gen. Elec. Co. v. Workmen’s Comp.
Appeal Bd. (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth. 1991) (citation omitted)



                                         6
(holding that, “[i]t is clearly within the [WCJ’s] fact-finding province to draw
reasonable inferences from the evidence”) and MKP Enterprises, Inc. v.
Underground Storage Tank Indemnification Bd., 39 A.3d 570, 581 (Pa. Cmwlth.
2012) (citation omitted) (holding that, “[t]he party prevailing below is entitled to
have the Court view the evidence in the most favorable light and to all reasonable
inferences that may be derived therefrom”).
            Because we conclude that Claimant satisfied the fourth exception to
the “going and coming rule,” we affirm.


                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge




                                          7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allied Fire Protection Systems        :
and Zurich American                   :
Insurance Company,                    :
                    Petitioners       :
                                      :
            v.                        :   No. 1975 C.D. 2016
                                      :
Workers' Compensation                 :
Appeal Board (Warner),                :
                 Respondent           :



                                  ORDER


            AND NOW, this 25th day of August, 2017, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.



                                   _____________________________________
                                   BONNIE BRIGANCE LEADBETTER,
                                   Senior Judge
