State News

PENNSYLVANIA GOING TO WORK DECISIONS By Kevin L. Connors, Esquire Two recent Pennsylvania Commonwealth Court Decisions review the importance of factual nuances in determining whether Employees driving to work are within the course and scope of employment when injured in automobile accidents. The Decisions are Dane Holler v. WCAB (Tri Wire Engineering Solutions, Inc.) and Joseph Simko v. WCAB (United States Steel Corporation-Edgar Thomson Works). Both Decisions were issued by the Pennsylvania Commonwealth Court on October 17, 2014. In Holler, the Workers’ Compensation Judge denied the Claimant’s Claim Petition for compensation benefits, with the denial of benefits being affirmed by the Pennsylvania Appeal Board, and then reversed by the Pennsylvania Commonwealth Court. In Simko, the Workers’ Compensation Judge granted the Employee’s claim, which was then reversed by the Appeal Board denying benefits to the Employee, with the denial of benefits being affirmed by the Pennsylvania Commonwealth Court. Holler was injured in an automobile accident, as he was driving to work. He worked as a Cable Technician, and was responsible for installing to Tri Wire’s customers. His routine would be that he would drive to the Home Office, where he would check-in, receive his assignments, pick up his equipment, and then begin working at various customer locations. Tri Wire allowed the Claimant to take his company vehicle home each night, and to then use it to report to work. Tri Wire specifically prohibited the Claimant from using the company vehicle for any other purpose, or from allowing anyone else to drive it. Tri Wire also would not allow the Claimant to have any passengers in its vehicle. Driving to work on August 13, 2010, the Claimant was driving the company vehicle, and he was injured in a single-vehicle accident. He was injured when his vehicle ran off the road, struck a telephone pole, with the Claimant sustaining significant injuries, requiring that he be life-flighted to the hospital. He did not return to work after that accident. Seeking workers’ compensation benefits, the Claimant testified before the Workers’ Compensation Judge, admitting that there was no contract with Tri Wire for transportation. The Workers’ Compensation Judge determined that the Claimant had a fixed place of work, that there were no facts in the case indicating that the Claimant was on a special assignment when injured, and that there were no special circumstances from which it could be determined that the Claimant was furthering the business interests of Tri Wire. In reliance upon those findings, the Workers’ Compensation Judge concluded that the Claimant was not acting in the course and scope of employment, when the motor vehicle accident occurred, resulting in his injuries. The Claimant appealed the Judge’s Decision to the Pennsylvania Appeal Board. In reliance upon long-standing Pennsylvania Workers’ Compensation Decisions, involving the “coming and going rule”, injuries occurring going to or coming from work can be considered to have occurred within the course and scope of employment if one of the following four exceptions applies: • The Claimant’s employment contract includes transportation to and from work; • The Claimant has no fixed place of work; • The Claimant is on a special mission for the Employer, such that the Claimant is furthering the business interests of the Employer; or, • Special circumstances are such that the Claimant was furthering the business of the Employer. In Holler, the Claimant asserted that the second exception, that he had no fixed place of work, with the Commonwealth Court citing several Decisions that involved the no fixed place of work scenario, including Beaver & Casey, Inc. v. WCAB, 661 A.2d 40 (Pa. Cmwlth. 1995); Jamison v. WCAB (Gallagher Home Health), 955 A.2d 494 (Pa. Cmwlth. 2008); Toal Assocs. v. WCAB (Sternick), 814 A.2d (Pa. Cmwlth. 2003); Peterson v. WCAB (PRN Nursing Agency), 597 A.2d 1116 (Pa. 1991). Citing to an unreported Opinion in Comcast v. WCAB (Clark), (Pa. Cmwlth., 1645 C.D. 2011), the Pennsylvania Commonwealth Court held that the Holler case was factually indistinguishable from Clark, since the Claimants in both cases, would only report to their Home Offices for a few minutes, before then spending their entire day travelling to various customer sites, to install services, or make repairs. Adopting its reasoning in Clark, the Pennsylvania Commonwealth Court held in Holler that the Claimant was a travelling Employee with no fixed place of work, and was then exempt from the coming and going exclusion, with the Claimant then being entitled to the presumption that he was working for Tri Wire, when driving from his house to the Home Office. The Holler Court further held that Tri Wire did not present any evidence to suggest that the Claimant’s drive to work the morning of his injury either removed him from his employment, or constituted an abandonment of his employment, with the Commonwealth Court remanding the case back to the Workers’ Compensation Judge, to enter findings in favor of the Claimant and against Tri Wire. In Simko, the Pennsylvania Commonwealth Court held that the Claimant was not in the course and scope of employment, when he was driving to work for a stand-down meeting, which were infrequently scheduled by United States Steel, and were differentiated from monthly safety meetings, which always dealt with particular topics, and were held at the same time each month for each department, at which, attendance was mandatory for all Employees. With the Workers’ Compensation Judge having found that the Claimant was in the course and scope of employment when he was injured, finding that the Claimant was entitled to workers’ compensation benefits, as the evidence that he presented established that he was on a “special mission” exception to the coming and going rule, the Pennsylvania Commonwealth Court affirmed the Pennsylvania Appeal Board’s determination that the Workers’ Compensation Judge had erred in concluding that the Claimant was in the course and scope of employment when injured, as it held that where Employees are required to attend to their regular work duties, attendance at this meeting was not a special mission. For that reason, the Pennsylvania Commonwealth Court did not find that the Claimant was in the course and scope of employment when injured, as attendance at the meeting was mandatory, travelling to the meeting was not a special mission, and the Claimant’s drive to work could only be construed as normal commuting to work. The Holler and Simko cases are easily distinguishable, as in Holler, the Claimant’s routine would be a very brief check-in at the office, to receive assignments and pick up equipment, after which the Claimant’s workday would be travelling to various customer locations, such that the Pennsylvania Commonwealth Court determined that the Claimant did not have a fixed place of work, resulting in the Pennsylvania Commonwealth Court concluding that the Claimant’s workers’ compensation claim was not precluded by the “coming and going” rule that is applied to Pennsylvania workers’ compensation claims where Employees are injured either driving to or from work. Simko, however, is distinguishable from Holler, as Simko was injured as he was driving to work for a mandatory meeting, such that his commute to work that day did not fit any of the four exceptions to the “coming and going” rule, excluding workers’ compensation benefits being awarded to Employees who are injured driving to or from work. Both Holler and Simko illustrate that each Decision hinges upon not only the evidence presented, but also how that evidence is characterized, in order to either fit within one of the four exceptions to the “coming and going” rule, such that injuries become compensable when driving to or from work, or, the factual evidence presented does not fit any of the four exceptions, such that workers’ compensation benefits cannot be awarded, as the injuries occur during a normal commute to or from work. ConnorsLaw LLP Trust us, we just get it! It is trust well spent! Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act. With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

The case of Budhun v. Reading Hospital and Medical Center, 765 F.3d 245 (3d Cir. 2014) shows how complex return-to-work issues can be under FMLA.  The plaintiff in that case, Vanessa Budhun, worked as a credential assistant for Reading Hospital.  About sixty five percent of her job required typing.  Budhun took about four weeks of FMLA leave between March 31, 2010 and May 7, 2010.  An employee from a different department filled in for her during that time. 

            On July 30, 2010, Budhun broke the fifth metacarpal of her hand and came to work with a metal splint on her hand.  An HR manager emailed her stating, “Your supervisor has made us aware that you have an injury that prevents you from working full duty.”  Budhun was given FMLA forms and she left work to see a doctor.  She told her doctor that she could type with the five fingers on her left hand and just her thumb and index finger on her right hand, so Dr. Battista provided a note dated August 10, 2010 stating that Budhun could return to work “no restrictions in splint.”

            Budhun returned to work on August 16, 2010.  She advised HR that her doctor would complete the FMLA form she gave him within 10 to 15 days. She advised in an email that she could “type slowly and write a little bit, but not as fast as I used to . . . I could work but not fast.”   The HR manager wrote back replying that because her return to work note provided no restrictions, Budhun should be able to work at full speed.  She added that if she could not work full speed, she needed to contact her physician and ask for a note keeping her out of work.  The HR representative advised Budhun that she needed to be able to perform at the same capacity she had before her hand injury. 

            Budhun left work again and made contact with her physician, who then supplied a note keeping her out of work until August 16, 2010.  He checked off “yes” on the box referring to her being unable to perform all of her job functions.  He did not clarify which job functions she was unable to perform.  However, the final page of the medical certification was inconsistent in that it stated Budhun needed to be out of work until September 8, 2010.  Budhun underwent occupational therapy. On September 8, 2010, she faxed another note in which Dr. Battista stated she would be out of work until her next appointment in November.

            The hospital extended her FMLA leave until September 23, 2010, when her 12 weeks would run.  It approved non-FMLA leave until November 9, 2010. In mid-September the hospital offered  Budhun’s job to another employee. 

            On September 29, 2010, Budhun emailed the Hospital a note saying she could return to work on October 4, 2010. She was then told that she had been replaced by another employee.  Because of a prior written discipline charge, Budhun was unable to transfer to another position.  She was given the option to apply to the hospital essentially as an outsider for a position but Budhun did not pursue this route, and when her non-FMLA leave ran out in November, she was terminated.

            Budhun sued under the FMLA and argued that she had been able to return to work full duty on August 16, 2010 but the hospital prevented her from working.  The court sided with Budhun:

At the time she entered her place of work on August 16, all of the information that shehad from her treating physician, and all of the information that she had provided to Reading,indicated that she intended to return to work as of that day, and could do so with ‘no restrictions.’

The court said that Budhun’s fitness for duty certification stated she could return to work with no restrictions.  The court noted that Reading did not provide Budhun a list of essential functions for her to present to Dr. Battista, essentially laying the blame on the hospital for the lack of clarity in this area.  The court suggested that the hospital could have contacted Dr. Battista to clarify any issues but failed to do so.  However, it could not delay the return to work of an employee with a full duty return-to-work note. The court criticized the HR manager for overruling the doctor on the return-to-work issue. 

            This case is an important one for employers in the State of New Jersey which is part of the Third Circuit.  The downfall of the hospital here was the failure to provide the essential job functions to the physician, so the physician perhaps did not fully understand the job duties.  The court focused on a strict reading of the FMLA, which provides job reinstatement rights when the employee’s physician indicates that the employee can return to work. 

This case underscores an inherent dilemma in the FMLA for employers. Employees must be able to perform their job duties on return to work.  A return to work with restrictions is not a full-duty return-to-work note.  The question is who decides whether the employee has restrictions?  The FMLA does not allow employers to assess ability to perform essential functions; instead it places this obligation on the physician, who often may not fully understand the essential functions, particularly if the physician has no job description.  Further, physicians have limited time to address such issues with all the other competing demands on medical practices today.  In this case, the employee herself admitted she could only type slowly.  The response of the court on this point was very interesting: “Budhun admitted that it was not likely that she could type as quickly with seven fingers as she formerly could with ten.  But this alone does not mean that she could not perform this essential function.” 

Ex parte Dalton Logistics

Petition for Writ of Mandamus

On November 7, 2014, The Alabama Court of Civil Appeals granted Dalton Logistics Petition for Writ of Mandamus. The Choctaw County Circuit Court had denied Dalton Logistics summary judgment motion, which asserted the Alabama court did not have subject matter jurisdiction over the injury that occurred in North Dakota. The Alabama Court of Civil Appeals ordered that the matter be remanded to the trial court and that the trial court enter an order dismissing the case for lack of subject matter jurisdiction.

The employee was a resident of Alabama and was informed of job openings with Dalton Logistics in North Dakota. The employee was sent "paperwork" via facsimile, which he completed and sent back to Dalton Logistics in North Dakota. Dalton Logistics arranged transport for the employee to North Dakota. Upon arrival, Dalton Logistics housed the employee in a "man camp" located in North Dakota. From the "man camp" Dalton Logistics would transport the employee to various work sites in North Dakota. Dalton Logistics did withhold Alabama income taxes from the employee’s check. The employee would work in North Dakota for 20 days and then Dalton Logistics would provide transportation back to Alabama where the employee would stay for 10 days, performing no work for Dalton Logistics.

The employee was injured on a job site in North Dakota. Dalton Logistics did not file the initial report of injury with North Dakota’s workers’ compensation investigative and adjudicatory entity within 7 days. The employee subsequently filed for workers’ compensation benefits under Alabama law.

In ruling in favor of Dalton Logistics, the Alabama Court of Civil Appeals stated that Ala. Code 1975, §25-5-35(d)(1)-(4) addresses claims due to injury which occurred outside of Alabama. Generally, if injured outside of Alabama, and the employee would have been entitled to benefits had he been injured in Alabama, Alabama benefits are owed provide that several alternate conditions are met.

The first condition to consider is: was the employee’s employment principally localized in Alabama. In order to be principally localized in Alabama, or another state, the employer must have a place of business in the specific state, and the employee regularly works out of that place of business, or if the employee is domiciled and spends substantial part of the employee’s working time in service of the employer in that specific state.Associated Gen. Contractors Workers Comp Self Ins. Fund v. Williams, 982 So. 2d 557, 560 (Ala. Civ. App. 2007). In this case, the Alabama Court of Civil Appeals ruled that the employee was transported to North Dakota, housed in North Dakota during working periods and traveled to North Dakota locations to perform work for Dalton Logistics. While the employee was provided transport to Alabama he did not perform work for Dalton Logistics while in Alabama. In addition, the fact that Alabama income taxes were withheld did not establish the employment was principally localized in Alabama, as no work was performed in Alabama. Therefore, the employment in this case was principally localized in North Dakota.

The Alabama Court of Civil Appeals next analyzed was the employee working under a contract for hired entered into in Alabama, and, if so, 1) was the employment principally localized in any state, 2) was the employment principally localized in a stated but the employer was not subject to that state’s workers’ compensation laws and 3) was the employment outside the United States. There was no disputed that the employee was working under a contract for hire entered into in Alabama and the Court had already found the employer was principally localized in North Dakota. Therefore, they looked to see if Dalton Logistics was subject to the workers’ compensation laws in North Dakota. The employee cited N.D Cent Code §65-08-01 to support his contention that coverage was not afforded under North Dakota law. However, the Alabama Court of Civil Appeals stated that the North Dakota statute merely addressed that injuries sustained outside the state may nonetheless be compensable, which does not apply to injuries that occurred in North Dakota as the case before them. The employee next asserted that by failing to file paperwork in North Dakota within 7 days, Dalton Logistics implicitly recognized that North Dakota benefits where not available. The Alabama Court of Civil Appeals disagreed with this assertion based on the fact that the North Dakota Workers’ Compensation Act has built in sanctions for this situation. N.D. Cent. Code §65-05-01.4. In ruling that the employee had not proven Dalton Logistics was not subject to North Dakota worker’s compensation laws, they cited Barry v. Baker Elec. Coop., Inc., 354 N.W. 2d 666 (1984) (North Dakota law, not Minnesota, applied to claim stemming from injury due to conduct in North Dakota by a Minnesota-domiciled employee of a Minnesota employer). The Court stated "the Barry court expressly noted that ‘North Dakota has a long-standing and strong public policy interest in making workers’ compensation the exclusive remedy against an employer in the case of an injured employee.’" As a result, the Alabama Court o Civil Appeals found that the fact the contract for hire was entered into in Alabama alone did not support the trial court’s decision that it had jurisdiction over the case under the Alabama Worker’s Compensation Act.

________________________________________

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

On July 14, 2014, the EEOC issued Enforcement Guidance on the Pregnancy Discrimination Act (PDA).  That law was passed in 1978 to make clear that discrimination based on pregnancy, childbirth or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

            The basic premise of the law is that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

            Several of the examples provided by the EEOC of possible discrimination concern light duty.  In Example 9 of the Guidance, the Commission provides an example of pregnancy-related animus motivating an employer’s decision to deny a pregnant employee light duty. 

An employee requests light duty because of her pregnancy.  The employee’s supervisor is aware that the employee is pregnant and knows that there are light duty positions available that the pregnant employee could perform.  Nevertheless, the supervisor denies the request, telling the employee that having a pregnant worker in the workplace is just too much of a liability for the company.  It is not necessary in this instance that the pregnant worker produce evidence of a non-pregnant worker similar in his or her ability or inability to work who was given a light duty position. 

The Commission goes on to state that even if there are no statements showing an animus, a pregnant worker can establish a violation of the PDA by showing that she was denied light duty or reasonable accommodations.  In Example 10 the Commission states:

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA.  An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy.  The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of pregnancy-related impairment that constitutes a disability under the ADA.  The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.

However, the Commission goes on to say that if the employer has certain restrictions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer can apply those restrictions across the board, including to pregnant workers. 

The Commission also provides Example 12, demonstrating failure of an employer to apply restrictions equally. 

An employer makes six light duty positions available to workers unable to perform one or more job duties due to an on the job injury, pregnancy, or an injury, illness, or condition that would constitute a disability under the ADA.  A pregnant worker applies for a light duty assignment as a result of work restrictions imposed by her pregnancy.  The employer denies the request, claiming that all six positions are currently filled.  The employee produces evidence that, in the past, the employer has provided light duty assignments to workers injured on the job even when all six assignments were filled.  The employee has provided evidence that the policy’s restrictions were not applied equally to the pregnant worker’s request for a light duty position. 

The Guidance is helpful to employers in understanding and avoiding potential acts of discrimination in relation to pregnant employees.  Employers who have a paternalistic approach to pregnant employees may easily stumble into violations of the PDA.  The focus should be on the ability of the pregnant employee to perform the essential job functions, not on speculative assessments of what a pregnant employee may or may not be able to do.  Stereotypes and assumptions that employers have about pregnant employees generally lead to ill-advised decisions.  For further information on the Enforcement Guidance on Pregnancy Discrimination, please contact the undersigned.

The Division is about to take aim at insurance carrier peer reviewers.

The agency is in the process of creating a Peer Review Plan-Based Audit, which it says will define

the scope, methodology, and selection criteria of its review process. A draft of the Plan Based Audit

is posted it on the Division website. It says that its purpose is to:

• Promote the delivery of quality healthcare in a cost-effective manner;

• Ensure peer reviewers adhere to requirements when issuing peer review reports for extent

of injury and/or medical necessity issues;

• Ensure peer reviewers review and maintain records when performing peer review; and

• Ensure that peer reviewers hold the appropriate credentials when performing peer review.

Once the Plan-Based Audit is finalized, the Division will begin collecting and reviewing select peer

reviews that address extent of injury and medical necessity issues. It appears that the Division will

be focusing on (among other things) whether peer reviewers (1) rely on evidence-based medicine,

(2) use Division treatment guidelines, and (3) comply with Division Rule 180.28 which governs peer

review requirements, reporting, and sanctions.

The Division seeks comment from stakeholders on the current draft. Suggestions for improvement

can be emailed to OMA@tdi.texas.gov by 5 p.m. Central Time on November 4.

The Division has published the results of disciplinary action taken last month and, as usual, they

look a little – uh – lopsided.

In September the agency disciplined twice as many carriers (8) as providers (4). Furthermore, the

Division took a lot more hide from the carriers’ backside. The largest monetary penalty it assessed

against a provider was $7,500. In contrast, the Division assessed a penalty of $40,000 against one

carrier and a penalty of $47,000 against another.

This is in keeping with the trend. The Division’s statistics show that since January 1, 2014, it has

assessed penalties totaling $1,658,245 for insurance carriers and only $65,600 for health care

providers.

The Dallas Court of Appeals has denied rehearing of a decision that we first mentioned in our

August newsletter. The decision explains that the “continuous coverage rule” is not exactly what the

name implies. The court held that a Texas-based worker was not covered when killed while on a

business trip to New York City.

Ronald Davis worked in Texas but had a business meeting in New York scheduled for a Monday.

He flew to New York on the previous Saturday and checked into a hotel. The next day, Sunday, he

was crossing a street near Central Park at 10:30 a.m. when he was hit by a bicyclist and killed. He

was 10 blocks away from his hotel. No one knows where he had been or where he was going.

Mr. Davis’ family argued that he was covered under the continuous coverage rule. Under that rule,

an employee whose work entails travel away from the employer’s premises is in the course of his

employment when the injury has its origin in a risk created by the necessity of sleeping or eating

away from home, except when a distinct departure on a personal errand is shown.

The Division of Workers’ Compensation found the injury to be non-compensable, so the Davis

family had the burden of proof on judicial review. Although there was no evidence that Mr. Davis

was on a personal errand at the time of the accident, the court found the injury to be noncompensable.

It reasoned that the Davis family had the burden of showing that Mr. Davis wasnot

on a personal errand or mission at the time of the accident and, because they could make no such

showing, they could not meet their burden of proof.

Davis v. Texas Mutual Insurance Company, ___ S. W.3d ___, 2014 WL 3705130 (Tex. App. –

Dallas 2104).

We in Texas are at ground zero in the Ebola scare. The first person to test positive for the disease

in the United States treated at Texas Health Presbyterian Hospital, and two of his nurses contracted

the virus and were quarantined. These events have raised questions regarding the interplay between

Ebola and workers’ compensation insurance coverage. Specifically, under what circumstances is a

worker covered under a workers’ compensation insurance policy if the worker tests positive for the

Ebola virus or is quarantined for monitoring?

This question has no bright-line answer. On the one hand, a compensable injury includes an

occupational disease. On the other hand, the term occupational disease does not include an ordinary

disease of life to which the general public is exposed outside of employment.

Generally speaking, to prove a compensable occupational disease, a worker must show that the

disease is indigenous to the work or present in an increased degree in that work as compared with

employment generally. Using that standard, the two quarantined hospital nurses probably can meet

their burden of proof to show that their conditions are compensable. The same is true for others on

the front line, such as laboratory workers and emergency responders.

But what about those who are not on the front lines but still face possible exposure, such as airline

flight attendants? Or workers who travel on airlines for business? Would they be covered?

The blogosphere is red hot with discussions of questions like these as insurance carriers, employers,

and state regulators scramble to find answers.