Pennsylvania Workers’ Compensation Lawyer Blog

A topic often litigated in the Pennsylvania Workers’ Compensation system is whether an injured worker was within the scope and course of his or her employment at the time of the incident.  Accordingly, this is a topic that is no stranger to this blog.  Though this area continues to depend drastically on the facts within each case, a recent decision by the Commonwealth Court of Pennsylvania does shed some additional guidance on such cases.

In Henderson v. WP Ventures, Inc. (Workers’ Compensation Appeal Board), a custodian was waiting to be able to perform his usual tasks.  He was being prevented from doing so by the facility being cleaned and ventilated after a roof leak.  Taking advantage of his down time, the injured worker stepped out for a cigarette and to grab a sandwich from a nearby shop.  While outside of the facility, the injured worker fell and hurt his head.

A Claim Petition was filed, and litigated, before a Workers’ Compensation Judge (WCJ).  The injured worker testified that if his supervisor was not around (as was the case that day), he was permitted to take limited breaks without express permission when there was idle time.  This was not disputed by the employer.  After hearing the evidence, the WCJ granted the Claim Petition.  Specifically, the WCJ found, “Claimant was taking a cigarette break when he slipped and fell on the walkway outside of the building in which he was working, and this was a minor deviation from employment that would fall under the personal comfort doctrine.”

A recent case in the Commonwealth Court of Pennsylvania touched on two interesting aspects of the PA workers’ compensation system.  First, the Court dealt with the offset for Social Security Old Age benefits (personally, I find “Social Security Retirement” benefits a bit less offensive), under Section 204(a) of the Pennsylvania Workers’ Compensation Act.  Second, the role and importance of a post-injury conviction, in the context of the vocational process, was considered.

The case we are discussing is Sadler v. Philadelphia Coca-Cola (Workers’ Compensation Appeal Board).  Obviously a serious injury, the workers’ comp insurance carrier accepted “’a right pinky finger amputation,’ ‘distal radioulnar joint subluxation, ECU tendinopathy, pisotriquetral joint arthritis resulting in pisiform excision, right wrist DRUJ resection’ and ‘right transverse process fractures of L2-3 and L4, contusion to the right gluteal region/right hip, fracture of the right 6th rib and right leg radiculitis, . . . and low back sprain.’” After the injury, while receiving temporary total disability (TTD) benefits, the injured worker applied for Social Security Retirement (SSR) benefits (and, in turn, the insurance company filed a Notice of Offset, reducing the TTD payments based on 50% of the SSR benefits).  Also subsequent to the work injury, the injured worker was convicted of a Class II Felony and incarcerated for some period of time.

As frequently happens, the workers’ compensation insurance carrier had the injured worker evaluated for an “Independent Medical Examination” (IME; the word “independent” being dubious, since it is the carrier who unilaterally selects the physician).  After the IME doctor releases the injured worker to gainful employment, the insurance company retains a vocational counselor to prepare a Labor Market Survey (LMS), also known as an Earning Power Assessment (EPA).  The insurer then files a Petition for Modification, based on the jobs found in the LMS/EPA (in addition to a Petition for Termination, which is not relevant to our discussion).  Among other petitions not directly relevant, the injured worker filed a Petition to Review Benefit Offset.

Back in July, 2019, we blogged, unhappily, about the Commonwealth Court of Pennsylvania decision in Peters v. Workers’ Compensation Appeal Board (Cintas Corporation).  This decision found a traveling employee to not be in the scope and course of his employment when he was injured in a motor vehicle accident after leaving a work-sponsored event.  Today, it is our pleasure to report that the Supreme Court of Pennsylvania has issued a decision vacating the decision of Commonwealth Court.  Essentially, the Supreme Court agreed (as did we) with the two dissenting judges on the Commonwealth Court.

Just to give a quick recap, the injured worker (“Claimant”) was a salesman, who went to various sites in his day.  There was no dispute that he was a “travelling” employee for the purposes of the PA Workers’ Compensation Act (Critical, since commuting to work is not generally covered with a stationary employee, absent some other factor, such as “a special mission”).

One day, after completing his work, Claimant drove to a bar, where his employer was sponsoring an event, typical of an after-sales blitz.  The employer paid for the food and drink.  To get to this bar, Claimant had to actually pass the exit for his home.  After the event, Claimant was injured in a car accident.

One frequently litigated part of PA workers’ compensation law is whether an injured worker is within the “scope and course” of his or her employment at the time of the injury.  Often, this question is dealing with a situation where an employee is injured just before or after his or her work day.  Since these cases are very limited by the exact facts, we like to see how the courts address each and every instance.  Recently, the Commonwealth Court of Pennsylvania issued a decision on this issue, though it is “unreported.”

We have previously discussed that not all Pennsylvania appellate cases, including ones that address PA workers’ compensation issues, are created equal.  Only “reported” appellate cases can be used as precedent.  However, “unreported” cases can still be cited by the parties, as persuasive, though such decisions are not binding on a Workers’ Compensation Judge (WCJ).  For these reasons, we obviously prefer to use reported cases, but we never ignore the unreported ones.

The recent case is Lombardi v. Workers’ Compensation Appeal Board (UPMC Health Plan, Inc.).  Here, the injured work arrived for her shift about 30 minutes early.  Her work takes place in an office building, not owned by her employer.  The injured worker went to the food court on the ground floor, intending to purchase breakfast to take to her cubicle.  While doing so, she tripped and fell, fracturing her right forearm and wrist.

Most employees in PA are covered by the Pennsylvania Workers’ Compensation Act.  This is a topic that has been mentioned previously in this blog.  However, that thought begs the question – who is actually an “employee”?  This can be a complicated topic and analysis, where one must differentiate the “employee” from the “independent contractor” (the latter not covered by the PA Workers’ Compensation Act).  Ultimately, this is a determination based upon the facts in each specific case.  A recent decision from the Commonwealth Court of PA does remind us of the significant factors.

Suppose you go to work for a company.  You sign an agreement, which says that you are an independent contractor.  You agree that taxes will not be withheld.  You are paid by the job, not by your time.  You have the right to decline job assignments.  You are not required to wear your employer’s uniform at work.  Your boss is not even on location when you are doing your job.  So, are you an employee?  Well, that would depend!  Though these are some of the factors to be examined, there are certainly others.

In Berkebile Towing and Recovery v. Workers’ Compensation Appeal Board  (Harr, State Workers’ Insurance Fund and Uninsured Employers Guaranty Fund), the answer was yes.  Some other facts, as found by the Workers’ Compensation Judge (WCJ), would be helpful to understanding the decision: