Articles Posted in Case Law Update

Ordinarily, to be compensable as a work injury in Pennsylvania, an injury must take place while the injured worker is in the “scope and course” of his or her employment. Interestingly, the phrase “scope and course” is not even mentioned in the Pennsylvania Workers’ Compensation Act, though the concept, derived from case law, has great importance.

An injured worker with a fixed place of employment (“stationary employee”) is generally covered for an injury away from the fixed place of employment only if he or she is actually furthering the affairs of the employer. In contrast, a travelling employee (one with no fixed place of employment), has a greater latitude of when he or she is within the scope of employment.

Recently, the Commonwealth Court of Pennsylvania issued a decision in Pennsylvania State University v. Workers’ Compensation Appeal Board (Rabin, Deceased), finding that the injured worker, a stationary employee, was still within the scope and course of his work when he was injured at the salad bar at a nearby restaurant.

As we have discussed previously, generally, an injury which takes place at work is compensable by Pennsylvania workers’ compensation benefits. Our previous blogging noted one exception, being “violation of a positive work order.” Recently, this issue was again addressed by the PA Courts.

In the case of Miller v. Workers’ Compensation Appeal Board (Millard Refrigerated Services), the Commonwealth Court of Pennsylvania affirmed the decision of a Workers’ Compensation Judge (WCJ), denying a Claim Petition. In this case, the injured worker finished his shift and was driving a forklift to the area where he would punch out for the day. In so doing, he managed to crush his foot against a pole. The problem is that he was not certified to drive a forklift, knew he was not permitted to drive a forklift, and testified that he was using the forklift simply because it was “fun to drive.”

The WCJ noted, and the Commonwealth Court agreed, that all of the elements of the violation of a positive work order defense were present. Specifically, citing the famous 1995 Commonwealth Court case of Nevin Trucking v. Workmen’s Compensation Appeal Board (Murdock), the Court said:

Generally, the coverage of employees for Pennsylvania workers’ compensation benefits is mandatory. There are narrow exceptions to this rule, as there are exceptions to most rules. One of those exceptions deals with Section 104 of the Pennsylvania Workers’ Compensation Act (WCA), wherein an executive officer of a corporation, who holds an ownership interest in the corporation, may be able to elect NOT to be an “employee” under the WCA.

To make sure this election is intentional, certain forms must be completed and signed by the executive at issue to accomplish the exclusion from workers’ comp coverage. But what happens if the executive did not actually mean to be excluded from coverage?

The Commonwealth Court of Pennsylvania faced such an issue in Anthony Wagner v. Workers’ Compensation Appeal Board (Anthony Wagner Auto Repairs & Sales, Inc.). Here, the injured worker was an owner and executive officer of a corporation. In setting up the corporation and insurance, the injured worker simply signed all of the papers he was given without really reading them (yet another example of the insanity of doing such a thing). The injured worker did not mean to exclude himself from workers’ compensation coverage.

Though it is somewhat less critical since the advent of the Uninsured Employers’ Guaranty Fund (UEGF), the concept of “statutory employer” still has an important place in the Pennsylvania workers’ compensation system. Basically, the theory of statutory employer is used when a subcontractor is the employer of an injured worker, and the subcontractor fails to carry PA workers’ compensation coverage (which, by the way, is against the law in PA). Under this theory, the injured worker may be able to recover against the workers’ compensation insurance held by the general contractor.

For many years, the ability for an injured worker to use the statutory employer concept was greatly limited by a restrictive “test” established in the 1930 Pennsylvania Supreme Court decision in McDonald v. Levinson Steel Co. (for many years, simply known as the “McDonald Test”). Recently, the PA Supreme Court took another look at the requirements to meet statutory employer in Six L’s Packing Co. v. Workers’ Compensation Appeal Board (Williamson).

Thanks to the efforts of the injured worker’s attorney in Williamson, and the fine assistance from the Pennsylvania Association for Justice, the Supreme Court eased the situations when the narrow McDonald Test is now required. Specifically, the Court held that, “Viewing the statutory scheme as a whole, however, and employing the principle of liberal construction in furtherance of the Act’s remedial purposes . . . we find it to be plain enough that the Legislature meant to require persons (including entities)

We have previously blogged about “specific loss” benefits in Pennsylvania workers’ comp. These are benefits available to an injured worker, other than indemnity (wage loss) and medical. When an injured worker loses the use of a body part (or suffers from facial disfigurement), he or she may be eligible for these “specific loss” benefits.

The issue in these types of cases often revolves around what constitutes “lose of use.” The Pennsylvania Workers’ Compensation Act, and interpreting case law, tells us that the body part must have been lost “for all practical intents and purposes.” What that phrase means, of course, is often litigated.

The Commonwealth Court of Pennsylvania recently addressed this issue in Miller v. Workers’ Compensation Appeal Board (Wal-Mart). As so frequently is the case, this was a very serious injury; the parties stipulated that the work injury would be described as “left spiral humeral fracture post-operative, left shoulder adhesive capsulitis and weakness, and radial nerve palsy.”

As a general rule, when an injured worker in PA loses a light duty job, through no fault of his or her own, temporary total disability benefits are to be reinstated. Like any general rule, of course, there are exceptions. One of the major exceptions involves the time period at issue.

We have previously discussed that reinstatement from partial to total disability benefits under the Pennsylvania Workers’ Compensation Act can usually be accomplished at any time during the 500-week maximum entitlement period for partial disability benefits. During those 500 weeks, the injured worker need only demonstrate that employment is no longer available within his or her physical capabilities (through no fault of the injured worker).

As the Commonwealth Court of Pennsylvania recently addressed in Sladisky v. Workers’ Compensation Appeal Board (Allegheny Ludlum Corp.), the situation is much different after the 500-week period expires. While a Petition for Reinstatement is not time-barred if filed within three years of the date of last payment of workers’ compensation benefits (after the 500-week period expires), the burden of proof is much different, and much more difficult for the injured worker.

An injured worker in Pennsylvania is generally entitled to workers’ compensation benefits when the injured worker is disabled from his or her job as a result of the work injury, unless the loss in earnings is due to the injured worker’s own bad conduct. In these types of cases, the analysis focuses on the reason the injured worker now has a loss in wages.

In BJ’s Wholesale Club v. Workers’ Compensation Appeal Board (Pearson), the Commonwealth Court of Pennsylvania addressed the issue of whether wage loss was related to a work injury, and whether workers’ comp benefits should be awarded. A Claim Petition was litigated before a Workers’ Compensation Judge (WCJ), who found that the injured worker did hurt her left foot and was disabled from her pre-injury position. The injured worker was then given a light duty job, from which she was fired due to being intoxicated at work. The WCJ nonetheless awarded workers’ compensation benefits to the injured worker since she had not shown any signs of intoxication, and since her pain medications for the work injury may have impacted the blood alcohol test.

The Commonwealth Court of Pennsylvania reversed the decision of the WCJ. While acknowledging that the WCJ is the ultimate finder of fact, the Court decided that benefits could not be awarded on the facts as found by the WCJ. Whether the injured worker showed signs of intoxication was irrelevant – the blood alcohol test, as found credible by the WCJ, showed that the injured worker was indeed intoxicated (and that the employer had a policy enabling termination for such an offense). Meanwhile, testimony that pain medications “may have” impacted the blood alcohol testing was equivocal and unable to support a finding of fact. To properly support a finding of fact, medical evidence must be given to a reasonable degree of medical certainty; that something “could have been” or “may have been” will not rise to this level.

The Supreme Court of Pennsylvania recently weighed in on the case of Lancaster General Hospital v. Workers’ Compensation Appeal Board (Weber-Brown). As our loyal readers may recall, back in 2009, the Commonwealth Court of Pennsylvania granted “specific loss” benefits for the loss of an eye in 2007, despite the onset around 1980, and used the injured worker’s wages in 2007 (with a different employer) on which to base the Average Weekly Wage (AWW).

On appeal to the Supreme Court, the Employer did not argue whether the date of injury was properly in 2007 (when the injured worker was told she had lost her eye for all practical intents and purposes) rather than 1980 (when the injured worker was exposed to herpes simplex virus). Instead, the main thrust of the Employer’s argument was that the AWW should be based on her wages with Employer (whom the injured worker was last employed by in 1985), rather than based on her wages for a different employer in 2007.

The Supreme Court affirmed the decision by the Commonwealth Court of Pennsylvania, holding that the AWW was properly based on the wages earned by the injured worker in 2007, regardless of the fact the injured worker was no longer working for Employer. The Court first noted that the PA Workers’ Compensation Act is “intended to benefit the injured employee, and, therefore, must be construed liberally in the employee’s favor in order to effectuate the Act’s humanitarian objectives,” the Court then added, “As such, borderline interpretations are to be decided in favor of the claimant.”

We have addressed the effect a layoff has on an injured worker in Pennsylvania before. Under the 2005 Supreme Court of Pennsylvania decision in Reifsnyder v. Workers’ Compensation Appeal Board (Dana Corp), an injured worker who had been laid off for periods of time before his or her injury receives a zero for wages earned during the period of lay off. This, of course, causes an injured worker to have an artificially low Average Weekly Wage (AWW), meaning a similarly reduced workers’ compensation rate.

Recently, however, the Supreme Court of Pennsylvania distinguished Reifsnyder, relaxing this strict rule. In Hostler v. Workers’ Compensation Appeal Board (Miller Wagman, Inc.), the Court found that the injured worker did NOT “maintain a continuous employment relationship with Employer, as petitioner did not ‘retain[ ] significant rights/accoutrements of employment’ with Employer” during the periods he was laid off. As such, the AWW did not include the periods of layoff (thus, the AWW was not artificially reduced).

The Court distinguished the situation in Reifsnyder, where the injured worker “pursuant to (his) collective bargaining agreement, retained significant rights/accoutrements of employment, such as plant seniority, healthcare and sick leave benefits, and employer contributions to (his) retirement accounts.” In Hostler, the injured worker did not receive any benefit from his employer during the time he was laid off, and he was not assured of any recall from the layoff. The Court noted that such a finding was necessary “to accurately capture economic reality when calculating claimant’s average weekly wage,” and that this calculation “advances the humanitarian purpose of the Workers’ Compensation Act.”

In PA Workers’ Compensation, almost everything has a specific amount of benefit, for a specific period of time. A workers’ comp rate is determined by starting with the Average Weekly Wage (AWW) and using a precise formula. If an injured worker in PA loses a finger, toe, hand, foot, arm or leg in the work injury, he or she is entitled to a certain number of weeks of compensation (depending on which appendage is involved). An injured worker determined to be less than 50% impaired after receiving total disability benefits for 104 weeks is entitled to a maximum of 500 additional weeks of workers’ compensation benefits. These schedules regarding the amount of benefits payable to an injured worker can be found on the website of the Pennsylvania Bureau of Workers’ Compensation, in Section 306.

There is, of course, an exception to every rule. In PA, facial disfigurement is compensable by a payment of up to 275 weeks of benefits, at the discretion of the Workers’ Compensation Judge (WCJ). The disfigurement must be both permanent and “unsightly.” The Commonwealth Court of Pennsylvania recently addressed this issue in the case of Walker v. Workers’ Compensation Appeal Board (Health Consultants), where the Court decided a crooked nose was not “unsightly” and not worthy of any compensation.

In the Walker case, the injured worker fell down steps and broke her nose. The injury to the nose was accepted and she received workers’ comp benefits until she went back to work. Subsequently, she filed a Petition for Reinstatement (treated by the WCJ and the Court, correctly, as to also include a Petition to Review the Notice of Compensation Payable [to add low back to her work injury], since it was the unaccepted injury which allegedly now caused her disability. In this litigation, Claimant also sought facial disfigurement benefits for her nose, which now had small scars and was slightly crooked.