Opinion
No. 1724 C.D. 2011
07-31-2012
James Reardon, Petitioner v. Workers' Compensation Appeal Board (Lowe's Company, Inc.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
James Reardon (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying his claim petition for workers' compensation benefits. In doing so, the Board agreed with the decision of the Workers' Compensation Judge (WCJ) that Claimant's injury, which occurred in New Jersey, was not covered by Pennsylvania's Workers' Compensation Act (Act). Discerning no error, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
Claimant, a New Jersey resident since 2005, worked for Lowe's Company, Inc. (Employer) specializing in the sale of home windows, doors and siding. His job required him to visit customers at their homes in his assigned sales area in New Jersey. On August 23, 2007, Claimant injured his back while on a call at a customer's New Jersey home, and he was paid workers' compensation benefits under New Jersey law. Believing that he was also entitled to Pennsylvania compensation benefits, Claimant filed a claim petition under the Act. Employer filed a timely answer denying that Claimant had sustained a disabling injury and asserting that he was not entitled to Pennsylvania compensation. The matter was assigned to a WCJ, who conducted a hearing.
Claimant testified that Employer supervised his work from its regional project center office in Bucks County, Pennsylvania. Claimant applied for his job with Employer at the Bucks County office; was hired there; received several weeks of training there; and picked up his first paychecks there before switching to direct deposit. After his training was complete, Claimant began his routine of making calls to customers in New Jersey.
Claimant explained that he continued to have significant contact with the Bucks County office. He reported there every Monday morning for meetings that could last two hours; he picked up sales materials and samples there; his supervisors were located there; and he received New Jersey sales leads from there. Employer gave Claimant a cell phone with a Pennsylvania number that he used to communicate with the project center. Claimant reported his sales by faxing orders to the project center either from his home or from a Lowe's retail store in New Jersey. Claimant instructed customers to contact the Bucks County office with their questions.
When Claimant injured his back, while lifting a window sample from his car, he contacted the Bucks County office; it directed him to fill out an injury report at a Lowe's store in New Jersey. Claimant was treated by a New Jersey physician. Claimant was paid workers' compensation benefits under New Jersey law until March 2008.
Employer presented the deposition testimony of Thomas Warren, a human resources manager at the Bucks County office. Warren testified that when Claimant was hired, he was assigned to a base store in Lawnside, New Jersey. He received one week of training at the Bucks County office and a second week of training at his New Jersey base store. Thereafter, Claimant began to make sales calls at customers' homes in his assigned sales area in New Jersey. Warren explained that Employer assigned its sales representatives to an area closest to their homes. Generally, Claimant logged onto Employer's website to receive his home sales calls, and he was never assigned to make a sales call in Pennsylvania. When Claimant made a sale, the paperwork was delivered to his Lawnside base store, which received a credit for the sale.
Warren acknowledged that the in-home sales force attended meetings at the Bucks County office where they reviewed new products, new pricing and picked up supplies for sales demonstrations. At first, the meetings occurred every Monday, but over time the meetings were reduced to every other week. The meetings were held at the Bucks County office because it was a convenient and central location for all the sales representatives.
The parties also submitted medical depositions, surveillance footage and evidence of job offers Employer made to Claimant. We do not summarize this evidence because it is irrelevant in light of our disposition of Claimant's appeal.
The WCJ credited Warren's testimony in its entirety and credited Claimant's testimony where it was not inconsistent with Warren's testimony. Based on the evidence, the WCJ found that while Claimant's job required him to spend some time in Pennsylvania, the majority of his work time was spent in New Jersey, where he lived and where his assigned store was located. Specifically, the WCJ detailed his findings on Claimant's work location as follows:
The WCJ has complete authority over questions of credibility and evidentiary weight. Sherrod v. Workmen's Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995).
The Claimant was a New Jersey resident, hired in Pennsylvania, attended one week of training in Pennsylvania then one week in his home base store in New Jersey, reported his orders through the home base store in New Jersey, attended an approximate two hour meeting in Pennsylvania once weekly then every other week, obtained material at the Pennsylvania location, but did not establish how much time he spent obtaining the material. The Claimant communicated with the Pennsylvania location either by telephone from New Jersey or by the use of a computer or Facsimile at the home based store in New Jersey or his home in New Jersey. The Claimant's paychecks were directly deposited in his bank account except for the initial pay check. The credible evidence reflects the Claimant did all his sales work in New Jersey.WCJ Decision at 7, Finding of Fact ¶11. Based on these findings, the WCJ concluded that Claimant's injury was not compensable under the Act because Claimant's employment was not "principally localized" in Pennsylvania. Accordingly, the WCJ denied the claim petition. Claimant appealed, and the Board affirmed. Claimant then petitioned for this Court's review.
This Court's review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003).
On appeal, Claimant raises two main issues for our consideration. First, Claimant argues that the WCJ and the Board erred because the facts established that Claimant's employment was principally localized in Pennsylvania. Second, Claimant argues that the WCJ erred because he failed to consider the fact that the parties had agreed to settle his claim for a lump sum amount.
We begin with a review of the relevant provisions of the Act. Section 305.2(a) allows a claimant to receive Pennsylvania workers' compensation benefits for an injury that occurs in another state if his employment is "principally localized" in Pennsylvania. 77 P.S. §411.2. Section 305.2(d)(4)(i) of the Act provides that employment is principally localized in Pennsylvania where the claimant's "employer has a place of business in [Pennsylvania] and he regularly works at or from such place of business[.]" 77 P.S. §411.2(d)(4)(i) (emphasis added). "Regularly work[ing] at or from" a place of business means physically being present at a location; doing business and receiving supervisory instructions by telephone or mail does not qualify. Minus v. Workmen's Compensation Appeal Board (Tastykake Baking Co.), 496 A.2d 1340, 1342 (Pa. Cmwlth. 1985). To prove that he "regularly works at or from" his employer's Pennsylvania office, the claimant must show that he works at that office on a regular basis, not just periodically. Root v. Workmen's Compensation Appeal Board (U.S. Plywood Corp.), 636 A.2d 1263, 1265-66 (Pa. Cmwlth. 1994). Stated otherwise, the claimant "must prove that he or she works from the Pennsylvania location as a rule, not as the exception." Id. at 1266 (emphasis added).
Section 305.2 was added by the Act of December 5, 1974, P.L. 782. Section 305.2(a) states, in relevant part, as follows:
If an employe, while working outside the territorial limits of this State, suffers an injury on account of which he...would have been entitled to the benefits provided by this act had such injury occurred within this State, such employe...shall be entitled to the benefits provided by this act, provided that at the time of such injury:
77 P.S. §411.2(a) (emphasis added).(1) His employment is principally localized in this State, or
(2) He is working under a contract of hire made in this State in employment not principally localized in any state, or
(3) He is working under a contract of hire made in this State in employment principally localized in another state whose workmen's compensation law is not applicable to his employer, or
(4) He is working under a contract of hire made in this State for employment outside the United States and Canada.
Claimant argues that his evidence proved that his employment was principally localized in Pennsylvania and that the Board erred in concluding otherwise. In support, Claimant points to the following evidence: he was hired and trained in Pennsylvania; he attended work meetings and picked up supplies in Pennsylvania; he received work assignments and job leads from Pennsylvania; he reported to a supervisor in Pennsylvania; he had a cell phone with a Pennsylvania number; he picked up his first paycheck from Pennsylvania; he put his customers in touch with the Pennsylvania office for follow-up questions on their orders; and he reported his work injury to the Pennsylvania office. Claimant argues that in finding that his employment was not principally localized in Pennsylvania, the WCJ and the Board capriciously disregarded the evidence.
Review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 203, 812 A.2d 478, 487 (2002). Capricious disregard of the evidence exists only "when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Station Square Gaming L.P. v. Pennsylvania Gaming Control Board, 592 Pa. 664, 673, 927 A.2d 232, 237 (2007). Contrary to Claimant's suggestion, the WCJ discussed all the evidence presented in this case.
Employer responds that the evidence, in its entirety, supports the Board's conclusion that Claimant's employment was not principally localized in Pennsylvania. We agree.
The facts of this case closely resemble those presented in Root, 636 A.2d 1263. There, a New Jersey resident worked as a sales representative assigned to southern New Jersey. She was injured in an automobile accident on her way from a sales meeting in Pennsylvania to New Jersey, where the accident occurred. The claimant sought Pennsylvania workers' compensation benefits. The dispositive legal question was whether the claimant's work was "principally localized" in Pennsylvania. We held that it was not.
The evidence showed that the claimant's sales territory was New Jersey; she had no customers in Pennsylvania; and her office was in her home in New Jersey. Nevertheless, the evidence also showed that the claimant had ties to the employer's Philadelphia office. Specifically, the claimant was hired in and supervised from Philadelphia; checked in with the Philadelphia office twice a day by telephone; attended monthly sales meetings in Philadelphia; came to Philadelphia on occasion to meet with her supervisor; and picked up supplies and samples from the Philadelphia warehouse used for her sales in New Jersey.
In holding that the claimant's employment was not principally localized in Pennsylvania, we found it significant that the claimant did almost all of her work in New Jersey and attended "only monthly sales meetings and other sporadic functions" at the Philadelphia office. Root, 636 A.2d at 1265. Further, the claimant did not have an office or assigned workspace in Philadelphia because she was present there only periodically. We concluded that the claimant's occasional contacts with Pennsylvania did not make her employment "principally localized" here.
See also Lambie v. Workers' Compensation Appeal Board (Curry Lumber Company), 736 A.2d 67, 69-70 (Pa. Cmwlth. 1999) (holding, based on Root, that speaking to the boss in Pennsylvania daily by telephone and occasionally stopping by the office was insufficient to establish Pennsylvania jurisdiction where the claimant worked almost entirely in Maryland). But cf. Goldberg v. Workers' Compensation Appeal Board (Star Enterprises), 696 A.2d 263, 266-67 (Pa. Cmwlth. 1997) (holding, based on Root, that the claimant's employment was principally localized in Pennsylvania because by spending 75 percent of his time working at the employer's stores in Pennsylvania, he worked in Pennsylvania as the rule, not as the exception).
As in Root, Claimant spent the majority of his time working in New Jersey. He was hired and trained in Pennsylvania, attended two-hour sales meetings in Pennsylvania once a week (later twice a month), but he did not have an assigned office or workspace in Pennsylvania. In short, the facts of this case establish that Claimant's work in Pennsylvania was not the rule but, rather, the exception. Therefore, Claimant's employment was not principally localized in Pennsylvania.
Under Section 305.2(a)(3) of the Act, 77 P.S. §411.2(a)(3), Claimant still could have been eligible for Pennsylvania benefits if his employment was principally localized in New Jersey but New Jersey's workers' compensation law did not apply. However, it clearly does apply because Claimant received New Jersey workers' compensation benefits.
Claimant argues that the WCJ failed to recognize the concept of concurrent jurisdiction, meaning that he could receive Pennsylvania benefits even though he already received New Jersey benefits. Claimant is correct that Section 305.2(b) specifies that the "payment or award of benefits under the workmen's compensation law of another state...shall not be a bar to a claim for benefits under this act...." 77 P.S. §411.2(b). However, the WCJ did not deny the claim because Claimant already received benefits under New Jersey's law. The WCJ denied benefits because Claimant failed to meet the jurisdiction requirement of the Act.
In his next issue, Claimant contends that the WCJ erred by ignoring his settlement with Employer, which, apparently, was to be apportioned between Pennsylvania and New Jersey. According to Claimant, the WCJ "bollixed the settlement agreement." Claimant's Brief at 12. Accordingly, Claimant asks us to vacate the WCJ's decision. Employer responds that, in spite of settlement talks, the parties did not submit a compromise and release agreement to the WCJ for his approval under Section 449 of the Act, 77 P.S. §1000.5.
Section 449 was added by the Act of June 24, 1996, P.L. 350. It states, in relevant part, as follows:
(b) Upon or after filing a petition, the employer or insurer may submit the proposed compromise and release by stipulation signed by both parties to the workers' compensation judge for approval. The workers' compensation judge shall consider the petition and the proposed agreement in open hearing and shall render a decision ....77 P.S. §1000.5(b). --------
Claimant's second issue lacks any support in the record, which binds our appellate review. Kimberly Clark Corp. v. Workers' Compensation Appeal Board (Bullard), 790 A.2d 1072, 1075-76 (Pa. Cmwlth. 2001). The only reference to a settlement was a statement by Employer's counsel at the hearing that negotiations had been unsuccessful. This statement prompted the WCJ to conclude that "mandatory mediation would be futile at this point." Reproduced Record at 22a-23a. The parties litigated a claim petition for Pennsylvania benefits and submitted the matter to the WCJ for a decision. Claimant cannot now fault the WCJ for doing what the parties asked him to do.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 31st day of July, 2012, the order of the Workers' Compensation Appeal Board dated August 16, 2011, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge