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The Supreme Court of Pennsylvania’s Recent Analysis of the Traveling Employee Doctrine and Workers’ Compensation Liability

Pennsylvania
December 29, 2021
December 29, 2021
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As we approach the time of the year for employer-sponsored holiday and end-of-the-year social gatherings, the analysis of the traveling employee doctrine by the Pennsylvania Supreme Court is both informative and instructive for employers, insurers and workers’ compensation practitioners.

The Supreme Court of Pennsylvania recently reviewed the scope of an employer’s liability for a disabling injury sustained while the employee was traveling after his attendance at an employer-sponsored social event. See: Peters v. WCAB (Cintas Corporation), No. 1 MAP 2020, Decided: November 17, 2021, authored by Justice Mundy (Appeal from the Commonwealth Court at No. 1835 CD 2017 dated July 18, 2019, Affirming the decision of the WCAB at No. A16-1263 dated November 16, 2017.)

Holding

An employee who travels in the course of their work-related duties is presumed to remain within the scope of employment when attending an employer-sponsored social event. An employer is responsible for injury sustained by the employee after his departure from that work-related event - if he did not abandon his employment prior to the accident, via actions which “were so foreign to and removed from his usual employment that they constitute an abandonment of that employment.”

This case was remanded to the WCJ for additional fact-finding to resolve the conflicting testimony of the employee and his sales manager as to whether the employee was traveling back to his home or traveling to/from another non-work event at the time of his accident.

Although there was no announcement of a new rule of law, or even a final determination in this specific case, the analysis employed by the Pennsylvania Supreme Court is instructive for employers and their workers’ compensation insurers when assessing issues of responsibility for injury occurring in work-related travel and social function attendance.

Factual Background

Factual distinctions may determine the compensability of an injury. In the instant case, the facts reflect that this employee was engaged in work-related travel as a regular part of his work duties. He was employed as a uniform sales representative, which included three half-days in the employer’s office and travel for the remainder of the work week to meet with potential customers and present products in his sales region.

Following his last sales appointment, the employee drove past the highway exit to his home on his way to an employer-sponsored event at a local pub. After leaving that event, the employee was injured in a motor vehicle accident. A claim petition was filed to seek benefits, as the employee alleged the motor vehicle accident occurred during the course of his employment.

The employee testified that his sales manager invited the sales representatives to this pub event. The employee described this event as a celebration to mark the end of a “sales blitz.” These types of events were held on prior occasions during sales blitzes.  He believed these events to be “sort of” mandatory. At the event, he said there was a recap of the work performed during the sales blitz and food and drinks, which were paid by the employer. The employee testified that after he left the event, he was involved in a motor vehicle accident, which occurred on his way home.

Conflicting testimony was presented regarding the description and nature of the pub event. The employer testimony from a sales representative and a sales manager confirmed this type of event was routinely held during sales blitzes as a “voluntary perk.” Contrary to the employee’s testimony, they both emphasized the voluntariness and social nature of the event. They described this as a chance for the sales representatives to relax after the sales blitz. They disputed the employee’s representation that the sales blitz work was recapped at the event.  The sales representative specifically testified that work was not discussed during the event; rather, the conversations were general “chit-chat.”

The sales manager testified that he received a call from the employee later that evening, reporting that he had been in a motor vehicle accident. Significantly, he further testified that during this phone conversation, the employee stated that he was not on his way home from the pub event at the time of the motor vehicle accident, but rather he was on his way from some other event. However, the sales manager testified that he could not recall specifically where the employee said he was coming from. (This becomes relevant in the final analysis of this claim.)

Supreme Court Analysis

As noted above, the Supreme Court did not announce a new rule of law regarding the scope of compensability for injury sustained by a traveling employee. As a starting point in its analysis, the Supreme Court cited Section 301(a) of the Act for the proposition that an employer is liable for compensation for injury or death sustained in the course of one’s employment. An employee’s injury is considered to have arisen in the course of employment in the following two circumstances:

  1. when an employee is injured on or off the employer’s premises while engaged in the furtherance of the employer’s business or affairs
  2. when an employee is not furthering the employer’s business or affairs but nonetheless:

          a. is on the premises occupied or under the control of the employer, or upon which the employer’s business or                 affairs are being carried on,

           b. is required by the nature of his employment to be present on his employer’s premises; and

           c. sustained injuries caused by the condition of the premises or by operation of the employer’s business or                 affairs thereon.

In litigation of a claim petition, the injured worker has the burden of proof to demonstrate that his or her injury was sustained in the course of employment.

In the instant case, this employee was injured off the employer’s premises. Therefore, for this accident to be considered to have “arisen in the course of his employment”, the employee must have been furthering the business and affairs of the employer at the time of his motor vehicle accident.

The Traveling Employee Presumption

The Supreme Court reviewed the historical development of the traveling employee doctrine. The employee argued that he was in the course of his employment at the time of his motor vehicle accident, pursuant to this doctrine. The traveling employee doctrine provides:

When a traveling employee is injured after setting out on the business of his employer, it is presumed that he was furthering the employer’s business at the time of the injury. The employer bears the burden of rebutting the presumption. To meet its burden, the employer must prove that the employee’s actions were so foreign to and removed from his usual employment that they constitute an abandonment of that employment.

Temporary departures from the work route for the purpose of administering to the comforts of an off-the-premises employee, including authorized breaks for lunch, will not interrupt the continuity of one’s course of employment.

For example, a traveling salesperson cannot carry out the business of the employer without traveling to present products and solicit business. As such, the act of traveling, in and of itself, furthers the business and affairs of a traveling employee’s employer. So too do the activities incidental to travel, such as lodging, refueling, and stopping for food and drink. During their travels, traveling employees are subject to the risks associated with travel that stationary employees are not. Therefore, the “hazards of travel become the hazards of employment.” See Ball-Foster Glass Container Co.

Application of the Traveling Employee Doctrine

The Supreme Court rejected the employer’s argument (and the WCJ, WCAB and Commonwealth Court conclusion) that this employee abandoned his employment when he passed the highway exit to his home and proceeded to the pub event, as his attendance was not mandatory for his employment nor was the event “work-related.”

It was not disputed that this individual was a traveling employee. As such, he is presumed to remain in the course of his employment unless the employer rebuts the presumption by showing that his actions, at some point prior to the injury, constituted an abandonment of employment.

The Supreme Court concluded that this employee did not abandon his employment by attending the pub event. The WCJ found testimony was credible that these types of events were regularly held during sales blitzes. The court reasoned that it would be difficult to conclude that attending a regularly held type of event constituted an act so foreign to and removed from his regular employment to be considered abandonment of employment.

The WCJ also found the event to be voluntary and social in nature. However, those facts do not mean the event was not work-related. The employer hosted and sponsored the event. While work may not have been discussed at the event, the event still benefited the employer by fostering relationships and improving morale. See Investors Diversified Services

The Supreme Court could not conclude that this employee abandoned his employment by attending the pub event. But their analysis did not end there, as there remains a question as to whether the employee abandoned his employment sometime between leaving the pub event and the occurrence of the motor vehicle accident.

The record reflects conflicting testimony as to where this employee was coming from at

the time of the motor vehicle accident. The WCJ did not explicitly resolve this conflicting testimony. As the conflicting witness testimony was unresolved, this leaves open the question of whether the employee took some action after leaving the pub event that could constitute abandonment of his employment.

As “the WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and

evidentiary weight,” the Supreme Court remanded this case to the WCJ to resolve the conflicting testimony with respect to whether the employee was coming from the pub event at the time of his accident or from some other unknown non-work event.

Recommendations:
  1. This decision was not an announcement of a new rule of law regarding the extent of compensability for injury to a traveling employee. Rather, this decision reflects an analysis of the existing law with application to the specific facts presented to reach a different conclusion regarding the compensability of an injury sustained after attendance at a work event. To properly assess the compensability of an injury to a traveling employee, the workers’ compensation professional must engage in a thorough investigation of the facts, including the past practices of the employer.
  2. The assessment of responsibility for injury to a non-traveling employee sustained after attendance at a work-related event is different. As cited by the Supreme Court, in the past, a non-traveling employee injured after attendance at a work-related event may not be in the course of employment after the event has ended and the employee is traveling home. Citing: Brown v. WCAB (Liken Employment Nursing Services) (Pa.Cmwlth. 1991), and Canning v. WCAB (Pa. Senate) (Pa. Cmwlth. 2015) The claimant in Brown, who was not a traveling employee, was struck by a motor vehicle while crossing a public roadway after leaving her employer’s annual Christmas party held at the employer’s office. The Commonwealth Court concluded that even if the party benefited the employer by cultivating interpersonal relationships, the claimant was not furthering her employer’s business at the time of her accident because she was injured while returning from the employer’s party and not while attending the social event.
Query: Would the result in Brown be different after the Peters decision?

What about the “special mission” line of cases that may expand the employer’s liability to a non-traveling employee?

One must carefully investigate the facts presented regarding (i) the details of the employment; (ii) the details of the event; (iii) the past practices of the employer regarding events.