J. Silbaugh v. WCAB (Penn Line Corp.) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Silbaugh, :
Petitioner :
:
v. : No. 57 C.D. 2019
: Submitted: August 30, 2019
Workers’ Compensation Appeal :
Board (Penn Line Corporation), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: November 25, 2019
James Silbaugh (Claimant) petitions for review of the Order of the Workers’
Compensation Appeal Board (Board) that affirmed the decision of a Workers’
Compensation Judge (WCJ) denying Claimant’s Claim Petition based on the WCJ’s
determination that Pennsylvania does not have jurisdiction over Claimant’s work
injury, which occurred in Virginia, pursuant to Section 305.2(a) of the Workers’
Compensation Act (Act),1 77 P.S. § 411.2(a). On appeal, Claimant argues
Pennsylvania has jurisdiction because his contract for hire was made in
Pennsylvania, his employment was not principally localized in any state, and the
1
Act of June 2, 1915, P.L. 736, as amended, added by Section 9 of the Act of December
5, 1974, P.L. 782, 77 P.S. § 411.2(a).
WCJ’s interpretation of Section 305.2(a) to conclude otherwise is inconsistent with
the humanitarian purpose of the Act. Upon review, we affirm.
I. Background
Claimant filed a Claim Petition on August 18, 2015, alleging he sustained,
among other injuries, a severe crush injury to his left thigh and leg on April 29, 2015,
while topping a tree for Penn Line Corporation (Employer) in Virginia.
(Reproduced Record (R.R.) at 6a-7a.) Claimant resides in Pennsylvania, and
Employer’s headquarters are in Pennsylvania (Pennsylvania Office). Employer filed
an Answer, challenging, in relevant part, Pennsylvania’s jurisdiction over the work
injury that had occurred in Virginia. (Id. at 16a.) The WCJ bifurcated the matter so
as to decide the jurisdictional question first. Multiple hearings were held before the
WCJ, at which both Claimant and Employer presented testimonial and documentary
evidence.
A. Proceedings Before the WCJ
Claimant testified twice before the WCJ as follows.2 He lives in
Pennsylvania, he interviewed with Employer in 2012 at Employer’s Pennsylvania
Office, and he was hired at that office to work full-time as a tree trimmer/climber.
Claimant worked for Employer for a total of four years, working for about two years
followed by a one-year break. His most recent work period with Employer began in
September 2014 and ended in May 2015 after he was injured on April 29, 2015.
Claimant explained that, consistent with his understanding of what his job would
entail, he performed work for Employer in Pennsylvania, North Carolina, and
2
Claimant’s testimony is summarized in Findings of Fact 4 and 7 and is found at pages
86a-103a and 242a-56a of the Reproduced Record.
2
Virginia, and that he was sent wherever Employer had work. As part of that work,
Claimant would meet his foreman in Pennsylvania on a Sunday, the four- or five-
person crew would travel out of state for work, and the crew would return to
Pennsylvania on Thursday. Claimant took a break from his employment for about a
year in 2013 for personal reasons and returned to Employer in September 2014, at
which time he had to complete a drug test and paperwork. Claimant acknowledged
that, upon his return in 2014, he only worked for Employer in Virginia and that,
following his work injury, he received workers’ compensation (WC) benefits under
a WC claim in Virginia.
Claimant later clarified that the work he believed he had performed in
Pennsylvania during his initial period of employment had actually been in West
Virginia. He explained that, throughout his employment, he was requested to take
vehicles from Employer’s Virginia locations to the Pennsylvania Office and return
new vehicles to Virginia. During his most recent employment period, Claimant did
this four or five times. In August 2015, Claimant received a modified duty job offer
to work in the Pennsylvania Office, but was later notified that he could not work at
that office due to his having a non-work-related MRSA infection. In May 2016, he
returned to modified duty work in Virginia, but was assigned to a different work
crew, requiring him to drive to his new foreman’s home in West Virginia from which
the crew left to do work in Virginia. Claimant’s prior foreman advised Claimant
that his prior crew was working in North Carolina. Claimant has been released to
regular duty work, and he has returned to work for Employer in Virginia, but
Employer has not let him work as a climber.
3
Employer presented the testimony of the lead foreman of Employer’s tree
division (Lead Foreman), who testified as follows.3 Lead Foreman is employed by
Employer in Virginia and supervises 14 crews. Employer has a contract with
Dominion Virginia Power (Dominion) to perform tree work, such as clearing new
right-of-ways, tree trimming for new power lines, and maintenance trimming for
existing lines. While Employer’s Pennsylvania Office is the parent office of the
company, directions for work assignments come either from Employer’s Ashland,
Virginia office (Virginia Office) or directly from Dominion foresters. Lead Foreman
never had any contact with the Pennsylvania Office about the work his Virginia
crews performed and no direction regarding that work ever came from that office.
Dominion’s lines were in Virginia, although it had acquired lines in North Carolina
on which some of Employer’s crews could be directed by Dominion to work. (R.R.
at 128a.) Employee paychecks and other human relations matters are handled by the
Pennsylvania Office, although Lead Foreman finalized all the timesheets that were
sent to that office. Lead Foreman did not hire Claimant, but he was familiar with
Claimant having been Claimant’s supervisor when Claimant worked for Employer
from September 2014 through May 2015. During that period, Claimant worked only
in Virginia.
Employer also offered the testimony of its Casualty Claims Manager (Claims
Manager), who twice testified before the WCJ as follows.4 Claims Manager works
in the Pennsylvania Office and explained Claimant’s work history as reflected in his
work records. Claimant worked from July 16, 2012, until August 2, 2012, when he
3
Lead Foreman’s testimony is summarized in Finding of Fact 5 and is found at pages 113a-
37a of the Reproduced Record.
4
Claims Manager’s testimony is summarized in Findings of Fact 6 and 8 and is found at
pages 139a-69a and 271a-78a of the Reproduced Record.
4
left due to a work injury suffered in Virginia. He returned to work on September 4,
2012, and worked until May 19, 2013, when he left his employment to care for a
sick family member and did not have enough time working for Employer to qualify
for leave under the Family and Medical Leave Act.5 Claimant had a new hire date
of May 28, 2013, but was discharged for absenteeism on August 8, 2013. Claimant
was rehired on September 2, 2014, and worked until April 29, 2015, the date of the
work injury at issue. Claims Manager explained that, under Employer’s policies,
when an employee quits or is discharged and then rehired, the employee loses all of
the employee’s prior seniority, has a new hire date, and is considered as starting
again. Further, once an employee is hired in one location, the employee cannot just
switch locations under Employer’s policies, but must first leave for a period of time
and then get permission to move to a different location. (R.R. at 141a.) Under
Employer’s policies, when Claimant was rehired on September 2, 2014, Employer
considered him a new employee. During that new period of employment, Claimant
worked exclusively in Virginia and, even when he worked for Employer in 2012 and
2013, Claimant’s work records reflected he worked only in Virginia. Every
timesheet Employer had for Claimant between 2012 and 2015 reflected that he
worked in Virginia. Claims Manager handled Claimant’s current WC claim in
Virginia, Claimant was paid Virginia WC benefits, and Claimant’s medical benefits
were still being paid through the Virginia claim.
B. The WCJ Decision
Based on all of the evidence presented, the WCJ found that Claimant “had
separate and distinct periods of employment with [Employer]” and “prior to his date
of injury of April 29, 2015, the claimant’s most recent period of employment with
5
29 U.S.C. §§ 2601-2654.
5
[Employer] began on September 2, 2014.” (WCJ Decision, Finding of Fact (FOF)
¶ 9.) According to the WCJ, the credible testimony of Claimant and Claims Manager
confirmed that Claimant was first hired in 2012, stopped working in 2013, began
working for Employer again on September 2, 2014, and worked until April 29, 2015,
the date of his injury. The WCJ credited Claims Manager’s testimony, based on
Claims Manager’s familiarity with Employer’s hiring and seniority policies, that
Claimant lost all of his seniority and was considered a new employee when he was
rehired on September 2, 2014. The WCJ found Claims Manager’s
testimony in this regard is critical to the outcome of the jurisdiction
issue in this matter, because[ Claims Manager] has credibly testified,
and the claimant’s time records have credibly confirmed, that when the
claimant worked for [Employer] from September 2, 2014 through the
date of his injury on April 29, 2015, his work was exclusively
performed in . . . Virginia.
(Id.)
Based on the testimony of Claimant and Claims Manager that Claimant only
worked in Virginia between September 2014 and April 2015, the WCJ found that,
at the time Claimant sustained his injury, his work was not localized in Pennsylvania,
but in Virginia. (Id. ¶ 11.) The WCJ found that the four or five occasions Claimant
moved vehicles between the Pennsylvania Office and Employer’s work locations in
Virginia did not alter this finding. The WCJ reasoned that “such limited work
activity in Pennsylvania is insufficient to establish that the claimant’s employment
with [Employer] was principally localized in . . . Pennsylvania” particularly in light
of the documentary evidence which reflected “that just about every job the claimant
was assigned to work for the employer after he was rehired in September, 2014 was
a job that involved the claimant working in . . . Virginia.” (Id.) The WCJ
acknowledged Claimant’s arguments regarding the many connections between
6
Claimant’s work with Employer and Pennsylvania, but held those contacts did not
support a finding that Claimant’s employment was principally located in
Pennsylvania where almost all of the work he performed in the relevant employment
period occurred in Virginia. The WCJ credited Lead Foreman’s testimony that,
although Employer’s headquarters was its Pennsylvania Office, all of the work
Claimant performed for Employer was in Virginia and all of the directions related
to that work came from the Virginia Office or Dominion’s foresters, not the
Pennsylvania Office.
Crediting Claims Manager’s and Lead Foreman’s testimony, as well as
Employer’s documentary evidence showing where Claimant worked during the
relevant period of employment, the WCJ found “that, at the time he sustained his
work injury . . . , the claimant . . . was working employment principally localized in
. . . Virginia.” (Id. ¶ 12.) The WCJ determined that the WC laws of Virginia applied
to Employer, as reflected by the credible testimony of Claims Manager that Claimant
was paid WC benefits, pursuant to those laws, for the April 29, 2015 work injury.
(Id. ¶ 13.)
Based on the above findings of fact and credibility determinations, the WCJ
concluded that Claimant failed to meet his burden of proving that Pennsylvania had
jurisdiction over his WC claim for the April 29, 2015 work injuries. (WCJ Decision,
Conclusion of Law ¶ 1.) Specifically, the WCJ held that Claimant had failed to meet
any of the extraterritorial provisions set forth in Section 305.2(a) that would have
given Pennsylvania jurisdiction. Accordingly, the WCJ denied and dismissed the
Claim Petition due to lack of jurisdiction. (Id. ¶ 2; WCJ Order.)
7
C. The Board Decision
Claimant appealed to the Board, arguing the WCJ erred in concluding that
Pennsylvania lacked jurisdiction over his Claim Petition, citing S.I. Industries v.
Workmen’s Compensation Appeal Board (Zon), 613 A.2d 170 (Pa. Cmwlth. 1992),
because his employment was not principally located in any one state. Noting the
WCJ’s credibility determinations and factual findings, the Board affirmed. The
Board held these determinations and findings supported the WCJ’s conclusions that
Claimant had distinct periods of employment with Employer, his employment at the
time of his injury was principally localized in Virginia, and Virginia’s WC laws had
applied to the work injury. The Board distinguished Zon on the basis that, in Zon,
the parties clearly contemplated that the claimant would work anywhere required by
the employer’s business needs. Here, the Board explained, no such arrangement was
contemplated by Employer as established by Claims Manager’s credible testimony
that once Employer hired an employee for one location, the employee stayed in that
location and could not move to a different location without first leaving Employer
for a period of time and then obtaining permission to move to another area. (R.R. at
141a.) Accordingly, there was no error, the Board held, in the WCJ’s concluding
that Claimant did not meet his burden of proof under Section 305.2(a) and denying
and dismissing the Claim Petition for lack of jurisdiction. Claimant now petitions
this Court for review.6
6
In reviewing a decision of the Board, “[o]ur review is limited to determining whether an
error of law was committed, whether necessary findings of fact are supported by substantial
evidence, and whether constitutional rights were violated.” McDermott v. Workers’ Comp. Appeal
Bd. (Brand Indus. Servs., Inc.), 204 A.3d 549, 554 n.9 (Pa. Cmwlth. 2019).
8
II. Discussion
A. The Parties’ Arguments
Claimant argues that Pennsylvania has jurisdiction over the Claim Petition
pursuant to Section 305.2(a)(2), which authorizes coverage under the Act where the
employee “is working under a contract of hire made in this State in employment not
principally localized in any state.” (Claimant’s Brief (Br.) at 13 (quoting 77 P.S.
§ 411.2(a)(2)).) Claimant asserts there is evidence that he worked in different states,
Employer contemplated moving him (and other employees) to any state in which
Employer conducts its business, as reflected by Lead Foreman’s testimony, (R.R. at
128a), and Employer’s contract with Dominion demonstrates that Employer’s
employees can be assigned to work in both Virginia and North Carolina to maintain
Dominion’s lines. These facts, he argues, support the conclusion that his
employment was not principally located in any state, including Virginia, making Zon
directly on point. (Claimant’s Br. at 21 (citing Zon, 613 A.2d 170).) This conclusion
is further supported, Claimant contends, by the significant contacts his employment
relationship with Employer has with Pennsylvania, including his residing here,
Employer being headquartered here, his contract for hire occurring here, and his
leaving from his foreman’s Pennsylvania home for his work in Virginia, and that he
was offered a modified duty position at the Pennsylvania Office.
Claimant also contends that the Act is intended to benefit injured workers and
must be liberally construed in the injured worker’s favor in order to effectuate the
Act’s humanitarian purpose. Cytemp Specialty Steel v. Workers’ Comp. Appeal Bd.
(Servey), 811 A.2d 114, 118 (Pa. Cmwlth. 2002). Claimant argues that, contrary to
this humanitarian purpose and the liberal construction requirement, the WCJ
narrowly interpreted Section 305.2(a) of the Act to dismiss the Claim Petition
9
notwithstanding that it was filed by a Pennsylvania resident based on a work injury
sustained while working for a company operating in multiple states with its
headquarters in Pennsylvania. Such denial makes it difficult for Claimant to obtain
treatment from local physicians, who do not always accept out-of-state WC benefits.
Employer responds that the WCJ’s decision that Pennsylvania lacked
jurisdiction because Claimant’s employment was principally located in Virginia and
his work injury was covered by Virginia’s WC laws is supported by substantial,
competent evidence in the record. Employer contends this conclusion is consistent
with Meyer v. Workers’ Compensation Appeal Board (Raytheon Co.), 776 A.2d 338
(Pa. Cmwlth. 2001), because, as in that case, Claimant’s work for Employer could
not be considered continuous and, therefore, the only period of employment relevant
is that beginning in September 2014. During that period, Employer asserts, Claimant
worked exclusively in Virginia. Although Claimant asserts there is evidence to
support the fact that his employment was not principally located in any state, the fact
that “it was possible that the Employer could have sent him to job sites in other
states” does not support a finding that Claimant’s employment was not principally
located anywhere under Section 305.2(d)(4), Employer argues. (Employer’s Br. at
16 (emphasis in original).) Under that section, according to Employer, the definition
of “principally located” requires two things: one, that “the employee regularly
works at or from a place of business within the state,” and two, “his duties have
required him to go out of state for less than one year.” (Id. (citing 77 P.S. §
411.2(d)(4)).) Both of these provisions are met, argues Employer, because: (1)
Claimant admitted that, during the relevant period of employment, he worked
exclusively in Virginia and his work assignments came from the Virginia Office;
and (2) there was no evidence that Claimant had been required to work outside of
10
Virginia for a year or more. Accepting Claimant’s argument that his employment
had no principal location because Employer has a multistate operation and that at
some time it was possible that he may be offered work in another state, would,
Employer contends, render an absurd result.
Employer further argues that Claimant cannot establish Pennsylvania’s
jurisdiction, pursuant to George Liko Co. v. Workmen’s Compensation Appeal
Board (Stripay), 616 A.2d 197 (Pa. Cmwlth. 1992), due to his work being principally
localized in Virginia and his acknowledgment of receiving WC benefits in Virginia.
According to Employer, Claimant’s reliance in Zon is misplaced because that case
is factually distinguishable. Employer reiterates Claimant worked only in Virginia
and explains Claimant was only offered work at the Pennsylvania Office due to his
work injury, employment that was certainly not contemplated when Claimant was
rehired as a tree climber in September 2014. Finally, Employer argues there is no
violation of the humanitarian purpose of the Act because the Act is intended to
benefit the workers of this Commonwealth, and Claimant was not a worker of this
Commonwealth when he was injured. Employer notes that while Claimant may be
inconvenienced by the fact that his WC claim is covered by Virginia, this is a
“natural consequence of a Pennsylvania resident travelling daily or weekly to work
full time in a different state.” (Employer’s Br. at 20.)
B. Analysis
Where a work injury occurs outside of Pennsylvania, a claimant bears the
burden of proving that Pennsylvania has jurisdiction over the claimant’s WC claim
through the Act’s extraterritorial provisions. Williams v. Workers’ Comp. Appeal
Bd. (POHL Transp.), 4 A.3d 742, 745 (Pa. Cmwlth. 2010). Section 305.2(a) of the
Act sets forth those extraterritorial provisions and states:
11
If an employe, while working outside the territorial limits of this State,
suffers an injury on account of which he, or in the event of his death,
his dependents, would have been entitled to the benefits provided by
this act had such injury occurred within this State, such employe, or in
the event of his death resulting from such injury, his dependents, shall
be entitled to the benefits provided by this act, provided that at the time
of such injury:
(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 [workers’]
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.
77 P.S. § 411.2(a) (emphasis added). The focus of Section 305.2(a) is the locale of
a claimant’s employment “at the time of [the] injury.” Id.; McDermott v. Workers’
Comp. Appeal Bd. (Brand Indus. Servs., Inc.), 204 A.3d 549, 558 (Pa. Cmwlth.
2019). As used in this provision, a claimant’s
[e]mployment is principally localized in this or another state when
(i) his employer has a place of business in this or such other state
and he regularly works at or from such place of business, or (ii)
having worked at or from such place of business, his duties have
required him to go outside of the State not over one year, or (iii) if
clauses (1) and (2) of the foregoing are not applicable, he is domiciled
and spends a substantial part of his working time in the service of his
employer in this or such other state.
77 P.S. § 411.2(d)(4) (emphasis added). An award of WC benefits in another state
does not preclude a claimant from seeking benefits in Pennsylvania, but the claimant
12
must meet the burden of proving an entitlement to such benefits under the Act.
Williams, 4 A.3d at 745.
At issue here are subsections 305.2(a)(2) and (a)(3). The WCJ applied
subsection (a)(3) to find Pennsylvania lacked jurisdiction based on the
determinations that Claimant was principally employed in Virginia and Virginia’s
WC law applied to Employer, but Claimant argues there is jurisdiction under
subsection (a)(2) because “[h]e [wa]s working under a contract of hire made in this
State in employment not principally localized in any state.” 77 P.S. § 305.2(a)(2).
Relying on his own testimony regarding his working for Employer in states other
than Virginia, as well as Lead Foreman’s testimony that suggested that employees
may be moved to other states when needed, Claimant argues his employment is not
principally localized in any state. Claimant’s argument that subsection (a)(2)
applies, however, is not supported by the WCJ’s factual findings or the credited
evidence of record.
Where, as here, a claimant has different periods of employment with the same
employer, each period will be considered distinct for Section 305.2(a) purposes
unless the claimant shows the existence of a continuous employment relationship.
Meyer, 776 A.2d at 340. The WCJ found that Claimant’s employment relationship
with Employer involved separate and distinct periods of employment, citing Claims
Manager’s credited testimony about the break in Claimant’s employment between
August 2013 and September 2014, that Claimant lost all of his seniority after August
2013, and that Claimant was considered a new hire when he was rehired in
September 2014. (FOF ¶ 9.) As the ultimate fact-finder in workers’ compensation
cases, the WCJ “has exclusive province over questions of credibility and evidentiary
weight . . . .” Anderson v. Workers’ Comp. Appeal Bd. (Penn Ctr. For Rehab), 15
13
A.3d 944, 949 (Pa. Cmwlth. 2010). “The WCJ’s authority over questions of
credibility, conflicting evidence and evidentiary weight is unquestioned,” and we are
bound by those determinations. Minicozzi v. Workers’ Comp. Appeal Bd. (Indus.
Metal Plating, Inc.), 873 A.2d 25, 28-29 (Pa. Cmwlth. 2005). The credited
testimony of Claims Manager constitutes substantial evidence7 that supports the
WCJ’s finding that Claimant had distinct periods of employment and, therefore, the
relevant period began on September 2, 2014.
Focusing on the relevant employment period, the WCJ found that Claimant’s
work was principally localized in Virginia. (FOF ¶ 11.) Pursuant to Section
305.2(d)(4), work is principally localized in a state if: (i) the claimant’s “employer
has a place of business in . . . such . . . state and [the claimant] regularly works at or
from such place of business” or “having worked at or from such place of business,
[the claimant’s] duties have required him to go outside of the State not over one
year.” 77 P.S. § 411.2(d)(4). The WCJ based this determination on the facts that,
during this time period, Claimant worked exclusively in Virginia and that work was
directed from Employer’s Ashland, Virginia office or from Dominion’s foresters in
Virginia. (FOF ¶¶ 9, 11.) These findings are supported by the credited testimony of
Claims Manager and Lead Foreman, both of whom testified as such. Applying the
definition of “principally localized” to the facts supported by the credible evidence,
the WCJ did not err in finding that Claimant’s work was principally localized in
Virginia.
Claimant challenges this determination based on his testimony that he worked
in other states, his four or five trips between Virginia and Pennsylvania to transport
7
“Substantial evidence is such relevant evidence a reasonable mind might accept as
adequate to support a conclusion.” WAWA v. Workers’ Comp. Appeal Bd. (Seltzer), 951 A.2d 405,
408 n.4 (Pa. Cmwlth. 2008).
14
cars for Employer, and the testimony of Lead Foreman indicating that it was possible
for some Virginia crews to work on Dominion lines in North Carolina. However,
Claimant’s challenges to the WCJ’s application of Section 305.2(a)(3) are
unavailing.
First, although Claimant testified about working in other states, that testimony
was contradicted by the credited testimony of Claims Manager and Claimant’s work
records reflecting that Claimant worked only in Virginia. More importantly, even if
Claimant’s testimony was considered, the claimed non-Virginia work occurred prior
to the distinct employment period at issue. As noted above, once Claimant began
working for Employer again on September 2, 2014, his work assignments were
exclusively in Virginia. Thus, that Claimant may have worked in other states during
a different employment period is of no moment to whether his employment after
September 2, 2014, was principally localized in Virginia.
Second, we agree with the WCJ that while there were occasions when
Claimant drove a vehicle from Virginia to Pennsylvania and vice versa, these
occasional job duties do not diminish the fact that Claimant regularly worked from
Employer’s place of business in Virginia and that every job assignment he had
during the relevant period was in Virginia. Further, as pointed out by Employer,
unless a claimant’s “duties have required [the claimant] to go outside of that
State” for more than a year, there is no change to the claimant’s principal place of
employment. 77 P.S. § 411.2(d)(4) (emphasis added). As four to five trips between
Pennsylvania and Virginia would not meet this standard, these occasional job duties
do not require a different conclusion.
Third, although Lead Foreman testified it was possible that some Virginia
crews could be called to work on Dominion lines in North Carolina, there is no
15
evidence that Claimant ever did so in the time period at issue. The mere potential,
however, that some crew of Employer’s could be called to work in a different state
does not mean that Claimant would be required to do so. Moreover, Claims Manager
credibly testified Claimant was hired to work in Virginia and, in order for him to
work in a different state, he would have to leave Employer for six months before
obtaining permission to work elsewhere. “The focus of Section 305.2 of the Act is
on the claimant’s employment, not on the employer.” McDermott, 204 A.3d at
555 (emphasis added). With that focus in mind, the above credited testimony and
procedures do not support the conclusion that Claimant’s employment was not
principally located in any state and do not warrant reversal.
Claimant next asserts, as he did before the Board, that Zon requires reversal.
As in that case, he argues, Section 305.2(a)(2) applies here to give Pennsylvania
jurisdiction because his contract for hire was made in Pennsylvania8 and his
employment was not principally localized in any state in that it was contemplated
that he would work wherever Employer’s business needs required. Zon, however,
is distinguishable.
In Zon, the claimant was awarded WC benefits pursuant to Section 305.2(a)(2)
because the claimant’s contract for hire was made in Pennsylvania and the claimant’s
employment was not principally localized in any state. 613 A.2d at 170. The
employer, whose main office was in Pennsylvania but whose operations extended
into numerous states, challenged the latter determination. The claimant worked for
the employer at two locations in Ohio followed by one location in Pennsylvania
between August 26, 1985, and March 7, 1986. When one job was over, the employer
8
Under “the Act’s place-of-contract-test, a contract is created wherever the acceptance
occurs.” Zon, 613 A.2d at 171. Here, Claimant accepted his employment with Employer at the
Pennsylvania Office. Thus, his contract for hire was entered into in Pennsylvania.
16
would characterize the claimant’s departure as a “termination,” but the claimant
began working at a different location within a matter of days, completing new
paperwork each time. Id. at 171. Following the completion of the last job, the
claimant filed a claim petition seeking temporary total disability benefits for work
injuries he sustained on September 25, 1985, while working on the first job in Ohio.
The employer argued the claimant was terminated after each job and, therefore,
could not establish that his employment was not localized in any state. Id. We
rejected that argument, citing the testimony of the employer’s witness that the
claimant was hired for the initial job and any other jobs for which the claimant was
qualified, the claimant was only laid off between jobs, and the new paperwork was
necessary because each job site was a separate corporation. Id. at 172-73. Based on
that testimony, we held there was an ongoing employment relationship that
contemplated that the claimant would work at multiple job sites, including in
different states, and, therefore, the claimant’s employment was not principally
localized in any state. Id. at 173.
Unlike in Zon, the WCJ here found that Claimant had separate and distinct
periods of employment with Employer, rather than an ongoing employment
relationship, and that during the relevant period of employment Claimant was hired
to work, and only worked, in Virginia. These findings are supported by Claims
Manager’s credited testimony regarding Claimant’s work history and his
employment that began on September 2, 2014, which reflects that Claimant was
hired to work only in Virginia. Although some evidence suggested that some of
Employer’s crews may have been directed to work in North Carolina at some time,
this does not establish that Employer and Claimant contemplated that Claimant
would do so, particularly given Claims Manager’s testimony to the contrary.
17
Moreover, it cannot be said that Employer and Claimant would have contemplated
Claimant working a modified duty position in the Pennsylvania Office at the time
he was hired as a tree climber for work in Virginia. Thus, Zon does not require a
different result.
Claimant also attempts to establish Pennsylvania jurisdiction through the
connections his employment relationship has with Pennsylvania, the fact that
Employer’s headquarters are in Pennsylvania, and the humanitarian purpose of the
Act. However, those connections are not relevant to whether Pennsylvania has
jurisdiction pursuant to Section 305.2(a). “The focus of Section 305.2 of the Act is
on the claimant’s employment, not on the employer,” McDermott, 204 A.3d at 555,
and, here, the credited evidence supports the findings that Claimant’s employment
was principally localized in Virginia. Further, Claimant’s arguments based on the
humanitarian purpose of the Act are not persuasive. It is not contrary to or
inconsistent with the humanitarian purpose to apply the Act’s provisions as written
to facts that are supported by substantial evidence, even if doing so results in
Pennsylvania not having jurisdiction over a WC claim.
For these reasons, we find no error in the WCJ applying Section 305.2(a)(3)
to determine whether Pennsylvania has jurisdiction over the Claim Petition. Because
Claimant’s place of employment was principally located in Virginia, the only way
Claimant could establish Pennsylvania’s jurisdiction under Section 305.2(a)(3) was
to prove that Virginia’s “work[ers’] compensation law is not applicable to his
employer.” 77 P.S. § 411.2(a)(3); see also Stripay, 616 A.2d at 198 (under Section
305.2(a)(3), a claimant bears the burden of showing that the claimant would be
denied the protections of the WC law in the state in which the employment was
principally localized). However, the evidence credited, including Claimant’s own
18
testimony, unquestionably establishes that Virginia’s WC law applied to Employer
and Claimant, in fact, received WC benefits in Virginia. Therefore, Claimant did
not meet his burden of proving that Pennsylvania has jurisdiction over his
extraterritorial injury under Section 305.2(a).
III. Conclusion
Because the WCJ’s findings of fact are supported by substantial evidence and
those findings support the conclusion that Claimant did not meet his burden of
proving that Pennsylvania has jurisdiction under Section 305.2(a) of the Act, we
affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
Judges McCullough and Fizzano Cannon did not participate in the decision of this
case.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Silbaugh, :
Petitioner :
:
v. : No. 57 C.D. 2019
:
Workers’ Compensation Appeal :
Board (Penn Line Corporation), :
Respondent :
ORDER
NOW, November 25, 2019, the Order of the Workers’ Compensation Appeal
Board is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge