James M. Kush, Petitioner
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.
PATRICIA A. McCULLOUGH, JUDGE.
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.
and Procedural History
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.
April 13, 2015, Claimant filed a claim petition for
workers' compensation benefits based upon injuries that
he suffered during the January 12 accident. (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.)
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. (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.)
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.)
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.)
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
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.)
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.)
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 ...