Domestic Service Workers Excluded From PA Workers’ Compensation Act

As we discuss in our FAQs on our website, not every person who works in the State of Pennsylvania is covered by the PA Workers’ Compensation Act (Act).  Certain categories of employees are excluded from the protections of the Act for various reasons.  One of those exclusions applies to those employed in “domestic service.” This area was recently addressed by the Commonwealth Court of PA.

In Van Leer v. Workers’ Compensation Appeal Board (Hudson), the Commonwealth Court of Pennsylvania was faced with a case where the injured worker was employed as a caretaker for a woman suffering from mild dementia.  The patient with the dementia was the only person in the household.  Though the case did not address how, the injured worker suffered very significant injuries.

A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ).  After hearing the testimony of the injured worker, the WCJ made the following Findings of Fact:

                        “a. Claimant’s job was to make sure that the needs of []

                        Hudson were being met. Claimant was to make sure that

                        [] Hudson did not fall, get hurt or leave the house. She

                        explained that [] Hudson suffered from ‘a little dementia.’

 

                        b. Claimant worked at night. Her duties included making

                        sure that [] Hudson was ready for bed, and had her

                        medicine. She would make sure that [] Hudson went into

                        her bedroom and was asleep, then Claimant would come

                        back downstairs and stay up all night long. Claimant would

                        also sometimes let [] Hudson’s dogs out. Claimant gave

                        some examples of her interactions with [] Hudson, but

                        stated that her job consisted mostly of ‘sitting there

                        making sure.’

 

                        c. Claimant acknowledged that [] Hudson lived alone.

                        There were no other members of her household. Claimant

                        acknowledged that other than making sure that [] Hudson

                        took her medicine, she did not provide any type of medical

                        care.”

Based on these Findings of Fact, the WCJ concluded that the injured worker was, indeed, employed in “domestic service” and was not under the coverage of the Act.  Accordingly, the Claim Petition was denied.  This decision was affirmed on appeal by the Workers’ Compensation Appeal Board (WCAB).

As we have noted in this blog on many occasions, the WCJ is the ultimate arbitrator of fact, and an appellate court is very limited in the ability to disturb these findings.  However, whether an employee is included under the protections of the Act is a question of law, which is fully reviewable by the appellate courts.

On further appeal, the Commonwealth Court of PA also affirmed.  The Court drew a distinction between a caretaker who performs some type of skilled care, such as medical, and a caretaker whose “duties consisted entirely of service to members of the household, which consisted solely of [] Hudson.”  Finding the latter, the Court agreed with the WCJ and the WCAB, that the injured worker was employed in “domestic service” and is excluded from the protections of the Act.

Our difficulty with this is that the injured worker here, to our eyes, was functioning more akin to an LPN.  Since there were no other members of the household, everything done by the injured worker was for the benefit of the patient with dementia.  The injured worker also made sure the patient with dementia took her medications, and did not fall or walk away from the premises.  To our eyes, these were tasks devoted to the care of a patient with dementia.  Contrast this with cases cited by the Court, where the injured worker cooked or cleaned for a family, or cared for a child, where a “domestic service” exclusion would make far more sense.  Since the Courts are fond of telling us that the Act is remedial in nature, and is meant to be liberally construed to benefit the injured worker, it seems contrary to this purpose to read this exclusion so widely.