The opinion of the court was delivered by: Judge LEAVITT*fn1
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
Elmore Walker (Claimant) and his employer, Leisure Line,*fn2 and its corporate successor, "Adventure Trails," a subsidiary of Coach USA Company, (Employer), have filed cross-petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board).*fn3 The Board modified the amount of Claimant's disability award but otherwise affirmed the Workers' Compensation Judge's (WCJ) grant of Claimant's claim petition. Employer challenges the Board's adjudication because it awarded compensation for injuries sustained while Claimant was commuting to work. Claimant challenges the Board's decision for the reason that it failed to award him attorney's fees.*fn4
Claimant worked for Employer as a bus driver. On November 10, 1999, Claimant was involved in an automobile accident while driving to work, sustaining neck and low back injuries. The accident occurred in Pennsylvania. However, Claimant sought and received compensation benefits provided by Delaware law, which was an option because he resided in Delaware. Six years later, Claimant decided to seek compensation benefits provided by the Pennsylvania Workers' Compensation Act*fn5 (Act), which was also an option because his accident occurred in Pennsylvania. On August 18, 2005, Claimant filed a claim petition in Pennsylvania.*fn6
The claim petition named Leisure Line/Adventure Trails, a Coach USA Company, as defendant, and it listed a Pleasantville, New Jersey, address for defendant. In response to the query on the claim petition form calling for the employer's insurer or third party administrator (TPA), Claimant responded "unknown." Reproduced Record at 3a (R.R. ___). The claim petition alleged that Claimant injured his neck and low back "in a motor vehicle accident in the course and scope of his employment," but it recited no factual allegations to support this conclusory statement. Id.
Employer filed an answer on December 30, 2005. The answer denied the allegations contained in the petition. Employer identified its address in Somerset, New Jersey, and it identified the insurer or TPA as Ace USA/ESIS. The answer was not filed within 20 days of the filing of the claim petition. Asserting that the answer was untimely, Claimant moved that all facts pled in the claim petition be deemed admitted.
Claimant's motion was filed in accordance with Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981), which held that when an employer files a late answer, all well-pleaded factual allegations must be deemed admitted by the WCJ. Employer objected to Claimant's Yellow Freight motion. Employer asserted that its answer was not untimely because Claimant had listed an incorrect address for Employer in his claim petition; had not served the claim petition on Employer; and despite knowing the identity of ESIS as Employer's TPA, stated that the identity of Employer's TPA was "unknown." The WCJ deferred action on the Yellow Freight motion and proceeded to conduct a full evidentiary hearing.*fn7
At the last hearing, Claimant testified. He explained that he drove a 49-passenger bus for Leisure Line on the "Coatesville run," taking passengers to and from Atlantic City. R.R. 122a. He then described his work day. Claimant drove his personal vehicle from his home in Wilmington, Delaware to Leisure Line's bus yard in Coatesville, Pennsylvania. There he picked up his bus, which he drove from Coatesville to Atlantic City, stopping at various points along the way to pick up passengers. After a layover, he made the same return trip to Coatesville. He then drove his personal vehicle from Coatesville to his home in Wilmington. On November 10, 1999, Claimant was involved in an accident in Pennsylvania on his way to the Coatesville bus yard from his home in Delaware.
Claimant testified that he was paid a daily rate of $128.50, which had been established in a collective bargaining agreement between his union, Teamsters Local 35, and Leisure Line. The Coatesville round trip run took approximately 12 hours to complete but could take longer, depending on the weather and traffic congestion. Claimant was paid a flat $128.50 regardless of the number of hours he worked on a particular day driving the Coatesville run. Claimant conceded that the collective bargaining agreement did not provide a specific dollar amount of compensation for his commute to and from Coatesville. Nevertheless, he asserted that his commuting time was factored into his daily wage. Claimant also explained that "any driver that did that particular run would get" $128.50 per day. R.R. 125a. The wage of $128.50 was purposely high, according to Claimant, to entice drivers to do the Coatesville run; otherwise, few drivers would take on the assignment.
Employer objected to Claimant's testimony about the contents of the collective bargaining agreement, arguing that the document itself was the best evidence of its contents. Claimant stated that he would try to obtain a copy of the document. Employer's counsel stated that Employer could not provide the document because of the passage of time and because of the fact that Leisure Line, which had hired Claimant and was a party to the collective bargaining agreement in question, had been merged into another corporation and had stopped operating as a separate business subsidiary in 2000.
Employer presented testimony from Mary Barish, general manager of Cape Transit, and Ronald Kohn, general manager of Coach USA. Barish and Kohn described the 1996 merger between Leisure Line and Cape Transit and the various corporate and business changes effected after the 1996 merger. In 1999, Cape Transit was still operating the bus routes, such as the "Coatesville Run," established by Leisure Line prior to the merger and was still using the name "Leisure Line" for this route. However, the trade name "Leisure Line" ceased to be used after January 1, 2000. Barish and Kohn also explained that after the merger, Cape Transit moved from Pleasantville, New Jersey, to Somerset, New Jersey. Nevertheless, one TPA, ESIS, has continually handled the workers' compensation claims of all the bus companies owned and operated by Coach USA.
Claims analyst, Lester Trammer, Jr., testified that ESIS has handled Claimant's claim since he was injured in 1999. In fact, Claimant's counsel sent Trammer a letter in August 2005, stating that it was Claimant's intention to file a claim petition in Pennsylvania. However, that letter did not inform Trammer that the petition had already been filed in Pennsylvania. Further, Trammer noted that the claim petition stated that the "insurer/TPA" of Employer was unknown even though Claimant had been communicating with ESIS since 1999 over his claim. ESIS had sent Claimant his weekly compensation checks.
Employer offered this testimony to support its position that Claimant had filed a deficient claim petition designed, apparently, to impede the Bureau's ability to serve the claim petition on either Employer or its TPA. Accordingly, Employer's answer was not untimely. In addition, Employer's testimony explained why Employer had not been able to obtain a copy of the ...