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Kush v. Workers' Compensation Appeal Board (Power Contracting Co.)

Commonwealth Court of Pennsylvania

May 17, 2018

James M. Kush, Petitioner
v.
Workers' Compensation Appeal Board (Power Contracting Company), Respondent

          Submitted: February 16, 2018

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge.

          OPINION

          PATRICIA A. McCULLOUGH, JUDGE.

         James M. Kush (Claimant) petitions for review of the October 26, 2017 order of the Workers' Compensation Appeal Board (Board) affirming the order of the Workers' Compensation Judge (WCJ), which dismissed Claimant's claim petition.

         Facts and Procedural History

         Claimant was employed by Power Contracting Company (Employer) as a union electrical worker. (WCJ's Finding of Fact (F.F.) No. 9; Reproduced Record (R.R.) at 29a, 123a.) On January 12, 2015, he was involved in a motor vehicle accident while driving to work. (WCJ's F.F. No. 10; R.R. at 123a.) Claimant sustained substantial injuries in the accident.

         On April 13, 2015, Claimant filed a claim petition for workers' compensation benefits based upon injuries that he suffered during the January 12 accident.[1] (R.R. at 1a-7a.) In his petition, Claimant asserted that, at the time of the injury, he was employed by Employer as a traveling employee, or, alternatively that he was on a special mission for Employer. (R.R. at 2a.) On April 29, 2015, Employer filed an answer to the claim petition, wherein it denied all allegations. (R.R. at 11a-15a.)

         The WCJ conducted hearings on May 5, 2015, and June 23, 2015. Claimant testified on his own behalf, explaining that he had been employed as a union electrical worker for both Vantage Corporation (Vantage) and Employer for the past three years.[2] (R.R. at 30a.) In that capacity, he served as an electrical foreman and managed numerous different jobs for each employer, often at the same time. (R.R. at 32a.) Claimant stated that he was paid separately by each employer. (Id.) Claimant's testimony outlined those jobs, and he referenced a detailed, day-by-day account of where and for which company he worked between the dates of September 29, 2014, and June 15, 2015, during his testimony at the June 23, 2015 hearing. (R.R. at 85a.) Claimant testified that he often moved from one job to another, sometimes working at different job sites on the same day. He also stated that it was common for him to switch between Vantage and Employer, explaining that "everybody just pretty much moved fluidly through from company to company." (R.R. at 34a.)

         Claimant further testified that Vantage provided him with a company truck, and that he used that truck to travel to jobs for both Vantage and Employer. (WCJ's F.F. No. 12; R.R. at 39a-40a, 124a.) On a typical day, he did not visit the corporate headquarters of either company; rather, he drove directly from his home to his assigned job site. (R.R. at 34a-35a, 41a.) Vantage also provided him with a credit card to purchase gas for the truck. (R.R. at 43a.) He was required to maintain a detailed travel log, itemizing each cost with separate cost codes and job numbers for Vantage and Employer. (Id.) Based on this accounting, Vantage paid for the fuel used to travel to its jobs, and Employer paid for the fuel used to travel to its jobs. (Id.)

         Claimant testified that, on the date of the accident, he was working at a job for Employer in Shaler Township along Route 8 (the Shaler Job Site). He testified that he left his home at about 4:30 a.m. on January 12, 2015. While traveling north on Route 403 to the job, he struck a patch of ice on the road and crashed into a guardrail. (R.R. at 50a-51a.)

         Claimant testified that, on the date of the accident, he was managing four different jobs for Employer and five jobs for Vantage. (R.R. at 73a-74a.) However, he had worked almost exclusively for Employer from on or about December 22, 2014, to January 12, 2015. (WCJ's F.F. No. 10; R.R. at 76a-77a, 123a.) Further, he had been working almost exclusively at the Shaler Job Site on the seven days that he worked prior to January 12[3] and had been working almost exclusively at the Shaler Job Site since December 8, 2014. (WCJ's opinion, at 4; R.R. at 123a.) Claimant represented that he did not receive compensation for his travel time unless he needed to pick up a piece of equipment on his way to a job, (R.R. at 78a), or was traveling from the job of one employer to that of another. (R.R. at 96a.)

         On October 6, 2016, the WCJ issued his decision and order dismissing Claimant's petition, finding that no exception to the "coming and going" rule applied and concluding that Claimant's injury occurred during his commute to a fixed job location. (R.R. at 120a, 125a-26a.)

         On October 19, 2016, Claimant appealed the WCJ's order. (R.R. at 129a.) On October 26, 2017, the Board issued its decision and order affirming the decision of the WCJ. (R.R. at 136a.) Claimant timely filed a ...


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