IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA K. Beatrice Food Service, : Petitioner : : No. 477 C.D v. : : Workers Compensation Appeal : Board (Donald W. Cragle, III and : Pennsylvania Uninsured Employers : Guaranty Fund), : Respondents : : Pennsylvania Uninsured Employers : Guaranty Fund, : Petitioner : : No. 507 C.D v. : : Submitted: November 30, 2012 Workers' Compensation Appeal : Board (Donald W. Cragle, III and : James and Karen Beatrice t/d/b/a : K. Beatrice Food Service), : Respondents : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: May 20, 2013 In these consolidated appeals, K. Beatrice Food Service (Employer) and the Pennsylvania Uninsured Employers Guaranty Fund (Fund) petition for review of the February 24, 2012 order of the Workers Compensation Appeal Board (Board),

2 which affirmed the decision of a workers compensation judge (WCJ) granting the claim petition of Donald W. Cragle, III (Claimant) and the two joinder petitions filed by the Fund. Upon review, we affirm. Claimant worked for Employer as a truck driver/delivery person and his job duties included delivering Employer s food products from its warehouse in Beaver Valley, Beaver County, to various customers throughout Beaver and Lawrence Counties and the states of Ohio and West Virginia. On June 11, 2007, Claimant was driving Employer s delivery truck on the northbound lane of Wallace Run Road in Big Beaver Borough, Beaver County. For unknown reasons, Claimant traveled across the northbound lane of Wallace Run Road and struck a wooden property sign and then traveled across the north and southbound lanes and collided with a tree. As a result of the accident, Claimant suffers from severe physical and mental disabilities, rendering him incapacitated and unable to speak. (WCJ s Interim/Interlocutory Decision, 4/16/2009 (Interim Decision), Review of the Evidence Nos. 1-2; (Reproduced Record (R.R.) at 245a, 249a-50a.) 1 On July 31, 2007, Claimant filed a claim petition against the Fund, alleging that Employer does not have workers compensation insurance and that he sustained catastrophic injuries during the course of his employment. On February 19, 2008, and May 7, 2008, the Fund filed joinder petitions, seeking to join as additional defendants James Beatrice and Karen Beatrice, individually, and together doing business as K. Beatrice Food Service and/or the Original J. Beatrice Food Service. 1 On October 8, 2007, the Orphans Court Division of the Court of Common Pleas of Beaver County adjudicated Claimant totally incapacitated and appointed his parents as plenary, permanent guardians of his estate and person. In so doing, the Orphans Court found that Claimant suffers from a severe and debilitating brain injury, a condition or disability that totally impairs his capacity to receive and evaluate information effectively. 2

3 The petitions were assigned to a WCJ and multiple hearings ensued. The parties decided to litigate, as a threshold issue, whether Claimant was in the course of his employment when the accident occurred. At the hearings, the testimony of Employer s witnesses, Karen Beatrice, James Beatrice, and Rick Bruce, Employer s warehouse manager, can be summarized in a collective fashion as follows. Employer has a policy that the delivery trucks are to be used only for making deliveries and not for the personal use of the drivers. On at least one occasion, Employer informed Claimant that he could not use a company vehicle to run a personal errand. Before a driver departs from Employer s warehouse, Employer provides the driver with a list of invoices containing the customers addresses and the order of the deliveries; however, Employer does not dictate that a driver take a specific route to reach the scheduled destinations. (WCJ s Interim Decision, Review of the Evidence Nos. 1-7.) During the morning hours of June 11, 2007, Claimant made two deliveries from Employer s warehouse, one to Beaver Falls and the other to Ellwood City. The route to Ellwood City is north of Employer s warehouse near Wallace Run Road. Claimant completed his morning deliveries and returned to Employer s warehouse to reload the truck and make his afternoon round of deliveries. (WCJ s Interim Decision, Review of the Evidence Nos. 2, 3.) After reloading, Claimant was scheduled to make what Employer refers to as the Valley Run deliveries. This particular delivery route includes stops in Beaver Falls, Rochester, New Brighton, and Bridgewater, all of which are situated south and southwest of Employer s warehouse. Claimant departed from Employer s warehouse and shortly thereafter the accident occurred. Employer s witnesses testified that the specific location of the accident on Wallace Run Road was 3

4 approximately three miles northwest of Employer s warehouse. Employer s witnesses could not think of any reason why Claimant would take Wallace Run Road and travel generally in the north and northwest direction when the Valley Run deliveries were in the opposite direction. However, Employer s witnesses admitted that Claimant could get to one of the Valley Run delivery locations by taking Wallace Run Road but stated that it would be out of the way and impractical. Following the accident, Employer s delivery truck contained all of the products that were loaded for the Valley Run deliveries. (WCJ s Interim Decision, Review of the Evidence Nos. 2-8.) By Interim/Interlocutory Decision dated April 16, 2009, the WCJ found as an undisputed fact that Employer did not have workers compensation insurance on June 11, The WCJ also found that Claimant was in the course of his employment with Employer when the accident occurred. The WCJ s rationale behind this factual finding is as follows: [The] conclusion that [Claimant] was in the course of his employment is based on a number of undisputed facts On the day of his accident, [Claimant] was driving [Employer s] truck on the road to make deliveries of food products which had been loaded onto his truck. The only grounds for [Employer] alleging that [Claimant] was not in the course of his employment was the fact that [Claimant] was two or three miles north of [Employer s] warehouse whereas his destinations were to the south of the warehouse. Why [Claimant] was on the route he drove is not known and may never be known unless [Claimant] recovers the capacity to speak and to explain his action. That [Claimant] was a few miles to the north of the warehouse is insufficient to lead to any reasonable conclusion that he had deviated from his job duties and taken himself out of the course of his employment. The morning of his accident, [Claimant] had driven north to 4

5 Ellwood City. It is reasonable to conclude that [Claimant] got into his truck and began driving without thinking of his exact destination and started off north by mistake. He was only a few miles from the warehouse traveling in a direction that he would travel for other destinations, other than the ones to the south of Beaver County. [Claimant s] deviation from [the Valley Run] route was not significant. [Employer] testified that in fact there was no prescribed written route given to any of the drivers as to the roads on which they were to drive. (WCJ s Interim Decision, Finding of Fact No. 3). Based on this finding, the WCJ concluded that Claimant was in the course of his employment at the time of the accident and that Employer failed to establish otherwise. (WCJ s Interim Decision, Conclusions of Law Nos. 2-3.) After the WCJ entered her Interim Decision and accompanying order, the parties presented testimony and documentary evidence related to the Fund s petitions seeking to join as additional defendants James Beatrice and Karen Beatrice, individually, and together doing business as K. Beatrice Food Service and/or the Original J. Beatrice Food Service. Before the WCJ, Karen Beatrice testified that the name of the employer is K. Beatrice Food Service and that the business has been in existence for nearly 20 years, with its original founding name being J.M.J. Food Service. Mrs. Beatrice testified that she is the sole owner of K. Beatrice Food Service and that her husband, James Beatrice, was one of the owners of J.M.J. Food Service. Mrs. Beatrice stated that Mr. Beatrice retired with the dissolution of J.M.J. Food Service in 2000 or 2001 and that Mr. Beatrice does not have any ownership interest in K. Beatrice Food Service. According to Mrs. Beatrice, Mr. Beatrice is not employed by, does not receive a salary from, and does not have authority to transact business on behalf of K. Beatrice Food Service. However, Mrs. Beatrice conceded on cross-examination that 5

6 Mr. Beatrice routinely participates in the business and has the authority to direct employees and send them on delivery runs. Mrs. Beatrice further admitted that a website entitled the Original J. Beatrice Food Service established 1972 lists the owners as James and Karen Beatrice and that she and her husband registered the fictitious name Original J. Beatrice Food Service, established 1972, with the Department of State. During cross-examination, Mrs. Beatrice confirmed that she and her husband jointly own the warehouse, the real property upon which it is situated, the truck that was involved in the accident, and the income of the business as reflected in Schedule C of her jointly filed tax return. (WCJ s Final Decision, 4/29/2010, Review of the Evidence Nos. 1, 3.) Mr. Beatrice testified that although he has no ownership interest in K. Beatrice Food Service and is not employed by the business, he works at the warehouse on a daily basis or at least a few times a week. Mr. Beatrice stated that he registered the name Original J. Beatrice Food Service to protect the name from being used by his former partners in J.M.J. Food Service. According to Mr. Beatrice, K. Beatrice Food Service was created solely for Mrs. Beatrice and he was advised by an attorney when he was leaving the J.M.J. partnership not to be involved in any other food-service business, including K. Beatrice Food Service. (WCJ s Final Decision, Review of the Evidence Nos. 2, 4.) In rebuttal, the Fund offered into evidence a corporate records search disclosing that K. Beatrice Food Service was never registered as a business organization in this Commonwealth. The Fund also admitted a document generated from a corporate records search stating that the Original J. Beatrice Food Service, est. 1972, was registered as a fictitious entity and that James Beatrice and Karen Beatrice are listed as the owners. Finally, the Fund introduced a copy of the website for J. 6

7 Beatrice Food Service, which reflects that the owners are James and Karen Beatrice, notes that the business was created following dissolution of the J.M.J. partnership in 2000, and states that We continue our business as the Original J. Beatrice Food Service est and K. Beatrice Food Service. (WCJ s Final Decision, Review of the Evidence No. 6.) From this evidence, the WCJ found as fact that the employer in this matter is James and Karen Beatrice, individually, and together doing business as the Original J. Beatrice Food Service established 1972 and/or K. Beatrice Food Services (hereinafter referred to collectively as Employer ). The WCJ explained the basis for its finding as follows: This finding is based on the documents offered into evidence reflecting that the principal assets of the business, by any name, are the income, the warehouse building, and the vehicles. In each instance, the income and assets are those of James and Karen Beatrice. The income is reported on Schedule C for the joint filing by James and Karen Beatrice and the business does not file its own tax return. The business does not exist in any form other than as a fictitious name. The documents reflect that James and Karen Beatrice hold themselves out as the owners of the business by either and/or both names. James and Karen Beatrice own the warehouse from which the business conducts its affairs, and the business pays the mortgage on the warehouse they own. (WCJ s Final Decision, Finding of Fact No. 2.) Accordingly, the WCJ concluded that the Fund met its burden of proof and granted the Fund s joinder petitions. By Final Decision dated April 29, 2010, the WCJ granted Claimant s claim petition. The WCJ ordered that compensation be paid by Employer, and that if Employer is unable to meet its payment obligations, then the Fund shall make the 7

8 payments with the right to pursue reimbursement from Employer. The Board affirmed. On appeal to this Court, 2 Employer and the Fund contend that the WCJ erred in finding that Claimant was injured while in the course of his employment. Employer and the Fund concede that the facts of this case give rise to a presumption under Pfizer, Inc. v. Workers Compensation Appeal Board (Gresham), 568 A.2d 286 (Pa. Cmwlth. 1989), that Claimant was injured in the course of his employment. However, they argue that the presumption was rebutted because it is undisputed that Claimant was miles away from his delivery route traveling in an opposite direction and there was no evidence establishing that Claimant was there for a business purpose or that his deviation was minor. To support their position, Employer and the Fund rely primarily on our decision in Carr v. Workers Compensation Appeal Board (May Department Store), 671 A.2d 780 (Pa. Cmwlth. 1995), wherein this Court generally held that a claimant is outside the course of employment when the claimant is pursuing personal errands. It is well-settled that the claimant bears the burden of proving the injury arose in the course of employment and was related thereto. Wachs v. Workers' Compensation Appeal Board (American Office Systems and Donegal Mutual Insurance Company), 584 Pa. 478, 884 A.2d 858 (2005). The course of employment of a traveling worker like Claimant 3 is necessarily broader than that of an ordinary 2 Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S David Torrey and Andrew E. Greenburg, Workers Compensation: Law and Practice 4:88 (3d ed. 2008) (stating that obvious examples of workers considered to be traveling employees include route drivers). 8

9 employee, and when an employee sets out upon the business of his employer, there is a presumption that the employee was furthering the employer s business at the time of the injury. Pfizer, Inc., 568 A.2d at 290. To rebut this presumption, the employer must prove that the claimant s actions were so foreign to and removed from his employment duties that they constitute an abandonment of that employment. Id. This Court has held that a very distinctive break in employment duties must be established before an abandonment of employment will be found. Buckeye Pipe Line Co. v. Workers Compensation Appeal Board (ABT), 714 A.2d 1143, 1145 (Pa. Cmwlth. 1998). Although not cited by the parties or the tribunals below, our decision in Roman v. Workers Compensation Appeal Board (Department of Environmental Resources), 616 A.2d 128 (Pa. Cmwlth. 1992), is highly instructive. In Roman, the claimant was a traveling employee who was required to travel to construction sites throughout the Commonwealth to perform inspections. On Monday, June 15, 1987, the claimant reported to his job site, completed his inspection, and left at noon to take an authorized lunch break. The claimant was injured a few miles away in a one-car accident on Interstate 81, heading toward Wilkes-Barre. A fellow employee testified that the claimant had a habit of visiting his girlfriend in Wilkes-Barre on Monday mornings, while the claimant testified that he was traveling to Wilkes-Barre to checkin to his hotel. The WCJ rejected the claimant s explanation for traveling to Wilkes- Barre and credited the employee s testimony. On this basis, the WCJ denied the claimant s claim petition, concluding that the claimant was not in the course of his employment at the time of the accident because the claimant was on his way to visit his girlfriend. The Board affirmed. 9

10 On appeal, this Court reversed, concluding that the claimant was a traveling employee entitled to a presumption that he was in the course of his employment and that the employer failed to rebut the presumption. As an initial matter, we found that the fact that the claimant was a traveling employee who left the job site on an authorized lunch break and was injured in an accident a few miles away from the site was sufficient to create a presumption that the claimant was in the course of his employment. To meet its rebuttal burden, the employer relied on the employee s testimony and WCJ s finding that the claimant had a habit of meeting his girlfriend on Mondays before she started work. However, given the fact that the claimant s car accident occurred several miles from his girlfriend s place of employment and after his girlfriend s work shift started, this Court in Roman determined that it was impossible for the claimant to have been acting in accordance with his habit and that the evidence was therefore insufficient to prove that the claimant was in fact traveling to meet his girlfriend. In the absence of any credible evidence to establish where the claimant was heading and for what reason, this Court concluded that the employer s evidence was woefully inadequate for the purpose of rebutting the presumption and showing that the claimant had abandoned his employment relationship. Id. at 132. Accordingly, we reversed the Board s order. The facts of this case are comparable to those in Roman. Akin to the situation in Roman, Employer did not present any evidence to establish why or for what reason Claimant was located a few miles north of the Valley Run deliveries. Instead, Employer merely speculates that Claimant abandoned his employment based solely on the fact that Claimant was traveling two or three miles in the opposite direction. However, similar to Roman, Claimant s accident occurred relatively close to the warehouse - and although Claimant was traveling in an opposite direction - this 10

11 fact, alone, does not satisfy Employer s rebuttal burden of proving that Claimant completely abandoned his employment duties to pursue a personal endeavor. Indeed, in Roman, the fact that the accident happened within a few miles of the departing location was evidence upon which this Court found to have supported the presumption that the claimant s injury occurred in the course of employment. Therefore, in accordance with Roman, we conclude that Employer failed to rebut the presumption that Claimant was injured while in the course of his employment because Employer did not adduce sufficient evidence establishing that Claimant engaged in activities wholly foreign to his employment. See White v. Morris, 127 A.2d 748 (Pa. Super. 1956) (concluding that a driver was in the course of employment even though he took a route other than that prescribed by his employer because the only evidence was that the driver was operating the truck for the purpose of delivering the cargo). See also Duquesne Truck Service v. Workmen s Compensation Appeal Board (McKeesport Truck Service), 644 A.2d 274, 276 (Pa. Cmwlth. 1994) (stating that to overcome the presumption that a traveling employee is continuously in the course of employment, the contesting party must rebut that presumption with evidence that the employee s actions were so foreign to and removed from his usual employment that they constitute an abandonment of that employment. ). 4 4 Our conclusion is buttressed by case law from our sister states and a treatise addressing factual situations similar to the one before this Court. In general, these authorities stand for the proposition that a driver is within the course of employment when the driver is off the direct route to his or her destination and there is no explanation for the driver s presence there. See, e.g., Smith v. Central Transport, 276 S.E.2d 751, (N.C. Ct. App. 1981) (concluding that deceased employee delivery driver was injured in the course of his employment even though the accident occurred approximately four and a half hours after [the employee] had delivered his load of chemicals, and while he was... heading in a direction which would have been opposite to the most direct route back to his employer s business; there was no affirmative evidence to establish that the (Footnote continued on next page ) 11

12 Moreover, as the WCJ observed, it may never be known why Claimant was on Wallace Run Road unless the Claimant recovers his mental faculties and ability to communicate; accordingly, the possibilities are endless and equally inferential. In Armak-Akzona v. Workers Compensation Appeal Board (Naylor), 613 A.2d 640 (Pa. Cmwlth. 1992), this Court held that if circumstantial evidence is based upon a solid factual foundation, reasonable and logical inferences may be made where it is impossible to do so by other means. Likewise, in Pfizer, Inc. this Court permitted a WCJ to reconstruct the circumstances surrounding the fatal accident and allowed the WCJ to draw an inference even though the circumstances surrounding the fatal accident and the intention of the parties involved are subject to some speculation more than actual fact. Id. at 288 n.1. Here, the WCJ inferred that Claimant drove north and on Wallace Run Road by mistake, and this inference is substantiated by the undisputed fact that Claimant routinely travels in that direction and location for other deliveries, including on the day of the accident. Unlike the habit evidence in Roman, there is nothing in (continued ) employee engaged in a distinct departure from his employment by pursuing a personal errand); Employers Liability Assurance Corporation v. Industrial Commission, 363 P.2d 646 (Colo. 1961) (concluding that delivery driver was in the course of employment where the driver was traveling in the opposite direction of his destination at the time of the accident because the insurer did not prove that there was a specific deviation for a personal purpose); Marie v. Casualty Reciprocal Exchange, 424 So.2d 1121 (La. Ct. App. 1982) (finding that claimant was in the course of employment where he was traveling away from his destination at the time of the accident/death because the defendant failed to prove that the claimant s deviation was unrelated to a business purpose); 1-17 Larson s Workers Compensation Law ( Once it is accepted that an accident off the main or authorized route is a deviation only if it is motivated by a personal objective, it follows that when the evidence shows no more than the employee s being somewhat off the direct route, with no explanation of the employee s presence there, a departure from the course of employment should not be found. ). 12

13 the record to suggest that it was factually impossible for Claimant to make such a mistake. Given the peculiar circumstances of this case, we conclude that the WCJ s inference was reasonable and supported by adequate evidence. See Armak-Akzona; Pfizer, Inc. Therefore, assuming arguendo, that Employer s evidence could be deemed sufficient to rebut the presumption, the WCJ properly found instead that Claimant was in the course of his employment because he was on Wallace Run Road as the result of an inadvertent mistake. See Waldameer Park, Inc. v. Workers Compensation Appeal Board (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003) (stating that it is immaterial that there is evidence in the record supporting a factual finding contrary to that made by the WCJ so long as there is substantial evidence to support the factual finding actually made). Employer and the Fund s attempt to analogize this case to Carr is unavailing. In Carr, the claimant was staying at a hotel for the duration of a jobrelated seminar and when the seminar concluded the claimant returned to the hotel. The claimant and a companion then decided to go sightseeing and drinking in the city. At the end of the evening, the claimant and her companion were involved in a vehicular accident while driving back to the hotel. On these facts, this Court concluded that the claimant was not acting within the course of her employment at the time of the injury because she was pursing personal interests and was not furthering the business of her employer. In reaching our conclusion, we noted that there was no evidence that the claimant was on-call or that the employer required her to leave the hotel for an evening of sightseeing and drinking. On a rudimentary level, Carr is factually inapposite because in contrast to Carr, there is no affirmative evidence in this case proving that Claimant decided to pursue a personal interest such as drinking or sightseeing after his work shift ended. 13

14 Instead, the evidence in this case demonstrated that Claimant was injured while driving Employer s truck to make deliveries for Employer and, as noted above, any deviation on the part of Claimant was an inadvertent mistake or an unknown mystery. Consequently, Carr is distinguishable on its facts. For these reasons, we conclude that the WCJ did not err in finding that Claimant was in the course of employment at the time of the accident. To the extent that Employer and the Fund claim that the WCJ made this finding in capricious disregard of the evidence, we reject this argument because the WCJ summarized and expressly considered the evidence offered by Employer and the Fund and declined to find that it proved Claimant abandoned his employment duties. A capricious disregard of the evidence occurs only when the fact-finder deliberately ignores relevant, competent evidence, and a WCJ s express consideration and rejection of evidence, by definition, is not a capricious disregard of that evidence. Williams v. Workers Compensation Appeal Board (USX Corporation-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004); Christopher v. Workers Compensation Appeal Board (Consolidation Coal Co.), 793 A.2d 991 (Pa. Cmwlth. 2002). Next, Employer argues that the WCJ s finding that James Beatrice and the Original J. Beatrice Food Service are the liable employer is not supported by substantial evidence and was made in capricious disregard of the evidence. In advancing this argument, Employer does not cite any authority that sets forth the legal standard to be used to determine whether an entity/individual is an employer for purposes of the Workers Compensation Act. 5 Because Employer does not provide this Court with a legal framework upon which to assess their individual and/or collective status as an employer, much less demonstrate that the WCJ 5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S ,

15 committed error, we conclude that Employer s argument is waived for purposes of this appeal. Pa. R.A.P. 2119(a) (providing that an argument shall be followed by such discussion and citation of authorities as are deemed pertinent. ); Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006) ( We have repeatedly held that failure to develop an argument with citation to, and analysis of, relevant authority waives the issue on review. ). Accordingly, we affirm the Board s order. PATRICIA A. McCULLOUGH, Judge 15

16 IN THE COMMONWEALTH COURT OF PENNSYLVANIA K. Beatrice Food Service, : Petitioner : : No. 477 C.D v. : : Workers Compensation Appeal : Board (Donald W. Cragle, III and : Pennsylvania Uninsured Employers : Guaranty Fund), : Respondents : : Pennsylvania Uninsured Employers : Guaranty Fund, : Petitioner : : No. 507 C.D v. : : Workers' Compensation Appeal : Board (Donald W. Cragle, III and : James and Karen Beatrice t/d/b/a : K. Beatrice Food Service), : Respondents : ORDER AND NOW, this 20 th day of May, 2013, the February 24, 2012 order of the Workers Compensation Appeal Board is hereby affirmed. PATRICIA A. McCULLOUGH, Judge