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DANIEL E. PEER v. WORKMEN'S COMPENSATION APPEAL BOARD (B & W CONSTRUCTION) (01/31/86)

decided: January 31, 1986.

DANIEL E. PEER, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (B & W CONSTRUCTION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Daniel E. Peer, Jr. v. B & W Construction, No. A-77868.

COUNSEL

Yaier Lehrer, with him, Herbert B. Lebovitz, Lebovitz & Lebovitz, P.A., for petitioner.

David A. Cicola, with him, Paul T. Grater, William K. Herrington & Associates, for respondent, B & W Construction.

Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 94 Pa. Commw. Page 541]

Daniel E. Peer, Jr. (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) denying him workmen's compensation benefits on the ground that he was not acting within the scope of his employment at the time of his injury. We affirm.

Claimant was employed as a boilermaker by the B & W Construction Company (Employer). During the time of his employment with Employer, Claimant resided in Clinton, Pennsylvania, and commuted to a job site in Brilliant, Ohio, which is approximately thirty-five miles distant. On September 4, 1975, while travelling by motorcycle to his place of employment, Claimant lost control of his vehicle as he attempted to avoid colliding with a dog in his path and, consequently, he struck an embankment and suffered serious injuries.

[ 94 Pa. Commw. Page 542]

After a workmen's compensation hearing, the referee determined that Claimant was entitled to benefits because he was injured in the course of his employment. In so holding, the referee found that Claimant's actions were consistent with a contract of employment which included transportation to and from work, and that Claimant was acting in furtherance of Employer's business at the time of the accident. Furthermore, the referee held that Claimant did not have a fixed place of work.

On appeal, the Board reversed the referee's decision, holding that, as a matter of law, Claimant was not injured in the course of his employment. Specifically, the Board determined that, although Claimant received remuneration in a fixed amount for travel expenses pursuant to an agreement between Employer and Claimant's union, such an arrangement was not a necessary element in the scope of Claimant's employment with Employer. Moreover, the Board found that Employer did not exercise control over Claimant's activities at the time of the injury and that Claimant was not furthering the business of Employer at the time he was injured. Addressing the issue raised by Employer as to whether Pennsylvania or Ohio was the appropriate forum for Claimant's workmen's compensation claim, the Board noted that Ohio may have been an appropriate forum and that the Board's decision applies only to the validity of the claim under the law of Pennsylvania, and so it should not be construed as precluding Claimant from possibly obtaining benefits in Ohio under the workmen's compensation law of that state.

On appeal to this Court, Claimant argues that the Board erred in disregarding the referee's findings and in holding that Claimant was not acting in the course of his employment when he was injured. Claimant contends further that Pennsylvania is the appropriate

[ 94 Pa. Commw. Page 543]

    forum for his claim and that The Pennsylvania Workmen's Compensation Act*fn1 ...


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