Biddle v. Workmen's Compensation Appeal Board

PAPADAKOS, Justice,

dissenting.

I respectfully dissent and would affirm on the basis of the learned opinion of the Commonwealth Court. Furthermore, I am disturbed by the conclusion of the majority that: “Here, Appellee has failed to provide sufficient evidence demonstrating that the decedent travelled from work site to work site on a daily basis.” (Maj. opinion, p. 349). Yet the majority admits the testimony of a co-worker that the decedent travelled around and overlooked three and four jobs at a time. (Maj. opinion, pp. 348-349.) Is this not evidence that dece *350 dent had no fixed place of employment? It was, after all, uncontradicted.

Furthermore, I am not aware of any rule of law or decision of this Court that the “no fixed place of work” exception to the “coming and going rule” requires a daily basis of the change of work site. Finally, neither Hohman v. George H. Soffel Co., 354 Pa. 31 , 46 A.2d 475 (1946), nor Peterson v. Workmens’ Compensation Appeal Board (PRN Nursing Agency), 528 Pa. 279 , 597 A.2d 1116 (1991), relied upon by the majority, state, suggest or infer that the movement from work site to work site must be on a daily basis to qualify as an exception to the “coming and going rule.” Does the majority suggest that the worker who spends two consecutive days at a job site before moving on to the next job site loses the protection afforded by the “no fixed place of employment?” I suggest that this is a strained, if not an ill-thought, undermining of the rule.

The majority cites Petersen v. Workmen’s Compensation Appeal Bd. (PRN Nursing Agency), 528 Pa. 279 , 597 A.2d 1116 (1991), as an example of an employee who has no fixed place of employment. A practical nurse employed by a nursing agency was assigned to various hospitals on a temporary basis. There was no suggestion that the workplace changed on a daily basis. The practical nurse could just as easily have been assigned to a hospital for several days at a time and the practical nurse would still be considered as not having a fixed place of employment. Or does the majority insist that if the practical nurse works at the same hospital two consecutive days or more, she now has a fixed place of employment?

In Homan v. George H. Soffel Co., 354 Pa. 31 , 46 A.2d 475 (1946), also cited by the majority, the plumber involved worked for his employer at various places in and around Pittsburgh. He had no regular place of work but travelled from one job to another. He was found not to have a fixed place of employment. Would the answer have been the same if the job to which he was sent by his employer took two or three days to complete?

*351 In the case before us, the decedent was responsible for “overseeing several jobs at one time, travelling between the jobs.” (Referee’s Findings of Fact; R.R. at 8a). He also had the use of his employer’s pick-up truck to travel from his home to each work site and back to his home.

If the majority is so concerned about the decedent’s “travel schedule” (maj. opinion, p. 349), it should remand the case for clarification of this point. I am satisfied that the uncontradicted evidence establishes that the decedent was required to travel from job site to job site to oversee the work. And he did so with transportation furnished him by his employer. It should not matter whether he would spend one or two days at a job site before moving on to another job site.

I vigorously dissent to the new rule announced by the court that persons with no fixed place of work must establish that they do not work at the same job site for more than one day.