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Mackey v. Workers' Compensation Appeal Board

February 17, 2010

KAREN MACKEY, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (MAXIM HEALTHCARE SERVICES), RESPONDENT



The opinion of the court was delivered by: Judge Brobson

Submitted: January 8, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Karen Mackey (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed a decision of a Workers' Compensation Judge (WCJ), denying the claim petition filed by Claimant. Claimant sought to obtain benefits for injuries she sustained in an automobile accident that occurred while she was driving to the home of a patient to whom she had been assigned by Maxim Healthcare Services (Employer) in her capacity as a home health aide. We affirm the Board's order.

BACKGROUND

The parties do not dispute the general facts as found by the WCJ. Claimant began working for Employer as a home health aide in May 2006. Employer provides such services to patients in many areas. Employer, however, assigned Claimant to only one patient from the date she began working through the date of the automobile accident that gave rise to the injuries that are the subject of her claim.

In performing her work assignment, Claimant drove directly from her own home to the patient's home. On January 29, 2008, Claimant's vehicle encountered ice and slid off the road. Claimant exited her car, and another vehicle slid off the road hitting her vehicle, which, in turn, hit Claimant. Claimant sustained serious injuries to her ribs, a knee, and her back.

As a result of her injuries, Claimant could not continue to work, and on April 23, 2008, Claimant filed a claim petition seeking workers' compensation benefits. Employer and its workers' compensation insurance carrier objected to the claim, asserting that Claimant's injuries did not occur in the course and scope of her employment. At the request of the parties, the WCJ agreed to bifurcate the proceedings in order to resolve first the question of whether Claimant was acting in the course and scope of her employment at the time of the motor vehicle accident.

During the hearing to decide the course and scope of employment question, Claimant and Employer's General Manager, Jack Drungell, testified. The hearing focused on the details of the employment relationship relating to Claimant's drive to and from the patient's home. Claimant's testimony indicated that she would drive fifty (50) minutes to the patient's home to work a 9:00 a.m. to 3:00 p.m. shift.*fn1 Although Claimant was not required to report to Employer's office, at the end of her work week she would drop off paperwork relating to the duties she performed for the patient. Claimant stated that there were two routes she could take to the patient's home. On cross-examination, Claimant testified that (1) Employer paid her only for the time she was actually working at the patient's home, (2) Employer did not pay her for the time she travelled to the patient's home, and (3) Employer did not pay Claimant for the mileage to and from the patient's home or for other vehicle-related costs, such as insurance. The testimony of Employer's witness confirmed Claimant's testimony regarding the nature of her driving and the terms of her employment.

The WCJ found that Claimant was not on Employer's clock or being paid for travel time at the time of her injuries. The WCJ further found that Claimant was not working on a special assignment at the time of the motor vehicle accident, but rather travelling to the same place of work to which she drove from the inception of her employment. Given those circumstances, the WCJ concluded that Claimant was not acting in the course or scope of employment at the time she sustained her injuries.

Claimant sought review before the Board of the WCJ's decision, asserting that certain of the WCJ's determinations were either irrelevant to the legal issue involved or not supported by substantial evidence. Claimant also contended that the WCJ erred by failing to make a legal conclusion that Claimant was a temporary employee and a travelling employee, and that the WCJ erred by basing his decision in part on the fact that Employer did not pay Claimant for the time she travelled to and from the home of her client.

The Board rejected Claimant's arguments and affirmed the WCJ, noting that there was no evidence to support Claimant's assertion that she was a temporary employee or had no fixed place of employment. Claimant then petitioned this Court for review.

On appeal,*fn2 Claimant argues that the Board erred in affirming the WCJ's conclusion that Claimant was not injured in the course or scope of her employment because she was a temporary employee or travelling employee, with no fixed place of employment, and she ...


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