In W. Bensing v. WCAB (James D. Morrissey, Inc.), even though the Employer did not file an answer or appear at the first hearing, the Commonwealth Court upheld the decision of the WCJ and the Board that the Claimant was not in the course and scope of his employment when he was injured.
The Claimant, a construction worker, car pooled with his co-workers, and the Employer coordinated calls to the Employees to facilitate the car pool. However, the travel was not done in a company vehicle and the costs were paid by the Employees. They were traveling to a fixed place of employment.
The Court first held the Employer's non-response did not relieve the Claimant from proving he was in the course and scope of employment at the time of the injury, it only prevented the Employer from introducing contrary factual evidence. The Court then held the Claimant was not in the course and scope of his employment both under Foster v. WCAB 639 A.2d 935 (Pa. Cmwlth 1994) and the Ridesharing Act.