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June 12, 1997


Appealed From No. A94-1033. State Agency Workers' Compensation Appeal Board.

Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Senior Judge Rodgers.

The opinion of the court was delivered by: Rodgers


FILED: June 12, 1997

The Pennsylvania State Police (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed a Workers' Compensation Judge's (WCJ) decision awarding disability and medical benefits to Wayne P. Dick (Claimant) for injuries sustained while he was in the course of his employment. We reverse.

Claimant filed a claim petition alleging that he sustained an injury while in the course of his employment as a state police officer as a result of a traffic accident that occurred while he was riding his own motorcycle on his way to work. Claimant was traveling southbound on a two lane highway when he collided with an automobile that was traveling in the opposite direction and then made an illegal left turn in front of Claimant. Employer denied liability alleging that the injury was not work-related.

In a decision issued March 25, 1994, the WCJ awarded benefits to Claimant, concluding that the injury occurred while Claimant was acting in the scope of his employment. The WCJ based his Conclusion in part upon the following findings of fact:

ELEVENTH : The claimant testified that, after witnessing the illegal left turn and prior to impact, he had formed the intent to arrest the individual. The Claimant also testified that the Claimant had taken no action himself due to his injuries. The Claimant did, however, report the offense to the investigating officer and testified at the magistrate's hearing.

THIRTEENTH : This Workers' Compensation Judge finds that the Claimant was in the scope of employment when injured on June 5, 1991. The Claimant, as an off duty officer, was required to take appropriate action whenever Claimant witnessed a violation of the law. The Claimant reported the incident and subsequently testified. This Workers' Compensation Judge does not find the Claimant's failure to file the required report regarding activation to establish that Claimant was not within the scope of his employment when injured. The Claimant was unable to file such a report due to his injuries.

(WCJ's decision, p. 4.) (Emphasis added.) Employer appealed to the Board, which affirmed the WCJ's order. Employer now appeals to this Court. *fn1

On appeal, Employer argues that the WCJ erred in accepting Claimant's testimony that Claimant had the time to form the intent to arrest the offender during the seconds that Claimant had between the time he saw the offender make the left hand turn and the impact of his motorcycle and the car. Employer also contends that the formulation of this intent cannot be the basis for placing Claimant in the scope of his employment because Claimant did not arrest the offender. Employer further contends that there is no authority that allows the WCJ to conclude that the subsequent reporting of the accident and testifying at the offender's hearing triggers the application of the special circumstances exception to the "going and coming" rule. Employer believes this to be an impermissible retroactive application of this exception.

Whether an injury resulting in a disability occurs during the course of employment is a question of law to be determined on the basis of the WCJ's findings of fact and is subject to our review. Bradshaw v. Workmen's Compensation Appeal Board (Bell Hearing Aid Center), 163 Pa. Commw. 486, 641 A.2d 664 (Pa. Commw. 1994). Generally, injuries sustained by an employee traveling to or from his or her place of employment are not compensable under the Workers' Compensation Act. *fn2 Id. This rule, referred to as the "going and coming" rule recognizes that under normal circumstances an employee traveling to and from work is not engaged in the furtherance of an employer's affairs. Setley v. Workmen's Compensation Appeal Board (Kawecki Berylco Industries), 69 Pa. Commw. 241, 451 A.2d 10 (Pa. Commw. 1982). In Setley, this Court set forth four exceptions to the "going and coming" rule where:

1. claimant's employment contract includes transportation ...

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