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Pay me once, pay me twice, pay me thrice? Recent ruling from the Supreme Court of Appeals of West Virginia may open the door for an injured employee to recover medical bills three times over.

By:     Glen A. Murphy, Esquire

           Spilman Thomas & Battle, PLLC

           gmurphy@spilmanlaw.com

           On November 15^th the Supreme Court of Appeals of West Virginia issued the opinion ofJeffery Jenkins, et ux. v. City of Elkins, et al. (No. 11-1059). Factually, Mr. Jenkins was an employee of Bombardier Aerospace driving a company vehicle, within the course and scope of his employment, when he was struck by another vehicle owned by the City of Elkins and driven by its employee Stephen Stanton, likewise in the course and scope of his employment. Because Mr. Jenkins was on the job at the time, he received workers compensation benefits for his injuries. Mr. Jenkins sought to pursue a claim against the City of Elkins and Mr. Stanton. However, the City informed Mr. Jenkins that because he was covered by workers’ compensation, the City had statutory immunity under W. Va. Code § 29-12A-1et seq. (aka the “Tort Reform Act”).  The City’s insurer, National Union, likewise asserted its immunity as the City’s immunity was preserved in a provision of National Union’s policy.  This immunity has been previously recognized in the longstanding holding ofO’Dell v. Town of Gauley Bridge, 188 W. Va. 596, 425 S.E.2d 551 (1992). Suit was filed against the City and Mr. Stanton. Mr. Jenkins also filed suit against his employer’s insurer (Greenwich), as well as his personal insurer (Westfield), seeking either Under or Uninsured (UM/UIM) coverage. Greenwich and Westfield asserted exclusions of coverage under their policies because of a “governmental vehicle” exclusion.  Greenwich also asserted that Jenkins was not entitled to the Medical Payments coverage under his policy based upon an exclusion for injuries arising out of and in the course of employment.

           As there were no facts in dispute, the case was briefed for summary judgment before the Circuit Court of Harrison County.  Judge Bedell found in favor of the City and National Union’s assertion of immunity. He found that the “governmental vehicle exclusion” as asserted by Greenwich and Westfield, were valid exclusions, but only for amounts over and above the State’s mandatory minimum coverage ($20K/$40K/$10K).  Finally, he found that Greenwich’s “workers compensation” exclusion in its medical payments coverage section was valid. Mr. Jenkins appealed from this ruling.

           After review by the Supreme Court of West Virginia, the Court significantly upheld the immunity of the City (and thus its insurer) and reaffirmed its longstanding holding inO’Dell (Syl pt. 1); that if an individual is injured by a tortfeasor who is immune from liability, underinsured motorist coverage is triggered for the limits in place (Syl pt. 2); that the “government owned vehicle” exclusion is against the public policy of this State and is unenforceable; and, of most significance to those involved with workers compensation, held in Syllabus point 5:

5. An employer’s insurance policy that excludes coverage for auto medical payment benefits to an employee who sustained an injury arising out of and in the course of employment is only enforceable to exclude medical payment coverage for that part of a claimthat exceeds the amount subrogated by the employer’s workers’ compensation carrier.(Emphasis added.)

The Court, in reaching this holding, noted that it has previously held that:

 “an employee who receives workers’ compensation benefits for injuries that result from a motor vehicle collision with a third-party which occurs in the course and scope of the employee’s employment is entitled to assert, against his/her employer’s motor vehicle insurance carrier, a claim for underinsured motorist benefits, where the employee’s employer has in effect motor vehicle insurance providing underinsured motorist coverage and where the employee’s recovery against the third-party activates such underinsurance coverage.” Syl. pt. 4, Henry v. Benyo, 203 W. Va. 172, 506 S.E.2d 615 (1998). 

           This Court looked at Greenwich’s medical payment exclusion as essentially being a workers’ compensation exclusion. The Court noted that a majority of courts have upheld similar exclusions, but that “some courts have invalidated this exclusion when a workers compensation insurer successfully asserts its subrogation on third-party proceeds.”  [Citation omitted]. Therefore, our Court determined, both in reliance on its prior holding inBenyoand for public policy considerations, an employee should have equal application to the recovery of medical payment benefits under the employer’s policy.  Statutory subrogation rights for workers’ compensation payments are still in place for employers’ workers’ compensation insurers as provided under W. Va. Code § 23-2A-1(b)(1), but as for the employers’ auto insurers, they can now only exclude medical payments coverage under their policies for the amount that exceeds the amount subrogated by the employers’ workers’ compensation carrier.   Additionally, it must be remembered that W. Va. Code § 23-2A-1(e), in pertinent part, advises that the statutory subrogation described in this preceding section, “does not apply to uninsured and underinsured motorist coverage or any other insurance coverage purchased by the injured worker or on behalf of the injured worker.”(Emphasis added) Medical payments insurance is just such a coverage. This creates what appears to be an inconsistency which was noted by Justice Benjamin, of the Supreme Court of Appeals of West Virginia, in his dissent.  He noted his displeasure with majority’s ruling and suggested that the majority misunderstood and misquotedBenyo by stating:

“[t]he actual effect of the law created in the majority opinion is that the plaintiff will receive a windfall by virtue of having his or her medical bills paid more than once. For example, in the instant case, Mr. Jenkins has had his medical bills paid by the workers' compensation provider. Also, he will be able to collect uninsured benefits from his employer's auto policy which sum will include medical costs. Pursuant to W. Va. Code § 23–2A–1(e) (2009), the workers' compensation provider's statutory subrogation right does not apply to the uninsured coverage so that Mr. Jenkins will receive his uninsured benefits free and clear. Finally, as a result of the majority opinion, Mr. Jenkins will receive auto medical payment benefits from his employer's policy despite the fact that his medical bills have already been paid by the workers' compensation provider.It is unclear under W. Va.Code § 23–2A–1(e), whether the workers' compensation provider will have subrogation rights against these auto medical payment benefits.” (Emphasis added)

           Finally, Justice Benjamin stated that this ruling “potentially will have [Mr. Jenkin’s] medical bills paid three times over.  Such a result is inexplicable to me and has no basis in law.”  

           The ramifications of any court’s ruling that eliminates an insurers exclusions and/or expands coverages, typically results in an insurers reevaluating the premium received for the risks that are written. Medical payments coverage is usually a rather inexpensive addition to coverage under personal and commercial policies. It is a no-fault insurance that covers medical bills related to an occurrence (usually for a fixed period of time). Employers who maintain medical payments coverage on their commercial insurance policies may want to talk to their commercial agents about their limits of coverage. Worker’s compensation insurers will need to give additional scrutiny to subrogation claims involving employees who are involved in motor vehicle accidents, especially so when the employers Under, Uninsured (UM/UIM) or Medical Payments coverage comes into play as, at least according to Justice Benjamin’s dissent, there may no longer be a right of subrogation by the workers’ compensation carrier.

For further inquiries regarding this article contact Mr. Murphy at (304) 340-3840 or at gmurphy@spilmanlaw.com.

Usoro Nkanta v. Wal-Mart Stores, Inc. and American Home Assurance, No. 2-871 / 12-0475, Court of Appeals of Iowa

The Claimant was hired by the employer in 1999. He was employed unloading trucks. On November 15, 2008, the Claimant sustained a low back injury arising out of and in the course of his employment. He went to the doctor the next day and was diagnosed with a back strain. On November 19, the Claimant was seen by Dr. Boyett who diagnosed left lower back pain and spasm and took the Claimant off work. An x-ray on November 24 revealed mild degenerative spondylosis. The Claimant was then returned to work, sit down duties only.

The Claimant continued to describe pain in his lower back and weakness in his left leg to Dr. Boyett. Dr. Boyett noted symptom magnification and nonphysiologic findings. He was continued on restricted duty and physical therapy. He was also given a referral to Dr. Nelson, an ortho spine specialist. After an MRI on January 22, 2009, Dr. Nelson opined he could not attribute the Claimant’s complaints to his lumbar spine. He was then referred to physiatrist Dr. William Koenig.

After his exam on January 28, 2009, Dr. Koenig found the Claimant to have normal results from an EMG of the left back and left lower extremity. He opined the Claimant was not a surgical candidate and kept him off work until February 10, 2009. Based on the appointment with Dr. Koenig, the employer ceased payment for the Claimant’s medical care and scheduled him for an IME with Dr. McCaughey. Dr. McCaughey spoke with Dr. Koenig prior to his IME of the Claimant. After the IME, Dr. McCaughey opined that he could not contribute the Claimant’s complaints to “organic pathology” as a result of work activities on November 15, 2008 and was unable to identify a compensable injury. He further opined that he further treatment would be under the Claimant’s personal healthcare provider.

In May 2009, the Claimant of his own volition was seen by Dr. Chen. Dr. Chen found the Claimant suffered from myofacial pain with no MRI or EMG evidence of nerve root pathology and recommended physical therapy and a home exercise program. The Claimant then underwent a second IME of his choosing with Dr. Jones, who found the Claimant to have a low back strain and some depression. He assigned the Claimant 5% impairment to the body as a whole.

After hearing on the matter, the deputy concluded that the Claimant had failed to prove his November 2008 injury was a cause of permanent impairment. The deputy did not accept Dr. Jones’ opinion as convincing as he gave no analysis, nor did he address other experts’ discrepancies with his opinions. In contrast, there were three experts who had opined that there were no organic explanations for the Claimant’s continued pain complaints.

In its decision, the deputy also noted that prior to the hearing, the employer had filed a confidential sealed envelope with the commission that included an offer to confess judgment. The deputy determined the agency did not have the authority to accept sealed documents as all documents filed in a contested case are public unless specially made confidential by law. The deputy also stated he did not view the contents of the offer to judgment as it was not material to awarding costs in this case and that there were no procedures under the statutes and rules of the agency for awarding costs under an offer of judgment.

On appeal, the commissioner adopted the ruling of the deputy. The commissioner also expressly stated that pursuant to chapter 677 of the Iowa Code, offers to confess judgment are not available in workers’ compensation proceedings. The employer then sought to enlarge the appeal and avoid paying costs on the action as it was the successful party. However, the commissioner denied this request noting that the Claimant was partially successful as he won his claim for reimbursement of an IME fee. These rulings were affirmed on judicial review by the district court.

On appeal, the Court of Appeals found that the commissioner’s ruling that the Claimant had no sustained permanent impairment due to a work injury was supported by substantial evidence. Thus this finding was not disturbed on appeal. The Court next took up the issue as to whether chapter 676 or 677 allows for an offer to confess judgment in workers’ compensation proceedings. The Court first noted that the Commissioner’s finding in this regard would be given no deference as he had not been given the authority to interpret this particular statute.

Chapter 677 provides that a defendant may make an offer to confess judgment for a specific sum. If a plaintiff rejects the offer and subsequently does not recover a greater amount than that offered, the plaintiff is taxed with the Defendant’s costs following the offer to confess judgment. The Court took up the issue as to whether or not Chapter 677 was applicable to workers’ compensation proceedings. In finding that Chapter 677, and the offer to confess judgment, is inapplicable in workers’ compensation proceedings the court conducted a comprehensive review of the applicable Iowa statutes. More specifically, the Court examined the Iowa Administrative Procedure Act and the Workers’ Compensation Act to determine if Chapter 677 was applicable.

The Court held that the language of the Iowa Workers’ Compensation Act provided that no party may settle a controversy without the approval of the Workers’ Compensation Commissioner. The Court stated that settlements, which included the offer to confess judgment, were governed by the specific administrative provisions of the Iowa Workers’ Compensation Act and the Administrative Procedure Act. As these Acts did not provide for the applicability of offers to confess judgment to workers’ compensation proceedings, the Court found that the consequences for failing to adopt an offer of judgment, mainly the taxing of costs, directly conflicted with the discretion given to the Commissioner to approve settlements per the Workers’ Compensation Act. Based upon this interpretation, and the finding that the Commissioner did not abuse his discretion in awarding costs, the ruling that each party was to pay its own costs was affirmed.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Supreme Court Approves Vacating Prior PTD Award

By: Dill Battle and Lindsay Smith

Summary

                      In Roy Justice v. West Virginia Office Insurance Commission and Lowe’s Home Centers, Inc., No. 11-0113 (W.Va. Nov. 14, 2012), the West Virginia Supreme Court of Appeals issued a significant decision impacting reopening and reevaluation of permanent total disability awards under the continuing authority over PTD awards established by West Virginia Code § 23-4-16. Under the language of West Virginia Code § 23-4-16(d)(2), which permits a self-insured employer to reopen a permanent total disability claim for the purpose of reevaluating the continuing nature of the disability, the inclusion of language directing that a claimant’s former employer “shall not be a party to the reevaluation” appears to be the result of legislative oversight according to the Court. Consequently, the Court held that notwithstanding statutory language that suggests otherwise, an order issued by the West Virginia Workers’ Compensation Board of Review which modifies or vacates a previous award of permanent total disability is not subject to challenge based on the involvement of a self-insured former employer in the reevaluation process given that the participation of the self-insured former employer is clearly anticipated and authorized by the provisions of West Virginia Code § 23-4-16(d). 

                      The Justice decision applies to PTD claims granted on or after April 8, 1993, the effective date of the 1993 amendments to W.Va. Code 23-4-16(d), and allows such claims to be reopened and reevaluated under the authority and timetable set forth in the statute. TheJustice decision should settle any reluctance to continuously monitor PTD claims and to reopen those awards after due notice to the claimant for reevaluation of the continuing nature of the disability and possible modification of the award. See West Virginia Code § 23-4-16(d)(1).

Facts and Procedural History

                      The claimant Roy Justice (“claimant”), suffered an injury while employed by Lowe’s Home Centers, Inc. (“Lowe’s”). During the process of loading a riding lawnmower with assistance from co-workers, claimant was injured on February 22, 1990. He was initially diagnosed with lumbar sprain but an MRI revealed herniated discs associated with degenerative changes. Claimant was initially granted a 5% permanent partial disability (“PPD”) award. Maintaining that he was unable to return to work, claimant filed a claim seeking a permanent total disability award. On December 7, 1994, claimant was granted a PTD award with an onset date of February 22, 1990.  The issue of claimant’s entitlement to PTD was litigated and the award was upheld under the now discarded liberality rule. 

                      In February 2006, Lowe’s reopened the PTD claim to evaluate whether claimant continued to be eligible for PTD benefits. SeeW. Va. Code § 23-4-16(d); 85 W. Va. C.S.R. § 5-5.  Lowe’s, through its claims administrator, referred claimant to various examiners who reached a conclusion that claimant could perform a sedentary level of work.  The claims administrator advised claimant that he had 120 days in which to submit evidence to support the continuation of his PTD benefits. After reviewing evidence submitted by the parties, the claim administrator vacated the PTD award and the benefits were immediately suspended. The claim administrator determined that the evidence demonstrated an ability to perform sedentary work level.

                      The Office of Judges upheld the ruling of the claim administrator, despite Lowe’s reopening the PTD claim for reevaluation — and seemingly being a party to that reevaluation — by finding that Lowe’s complied with the “letter and spirit” of West Virginia Code § 23-4-16(d). The Workers’ Compensation Board of Review affirmed the Office of Judges’ decision and claimant appealed to the West Virginia Supreme Court of Appeals.

Analysis

                      West Virginia Code § 23-4-16 establishes continuing authority over PTD awards. The Court acknowledged that, as the Legislature made clear, “whether it is the Commission, the successor to the Commission, a private carrier, or a self-insured employer – the applicable entity ‘has continuing power and jurisdiction over claims in which permanent total disability awards have been made after [April 8, 1993].’” Justice, at p. 6 (quoting W. Va. Code § 23-4-16(d)).

                      The Court noted that West Virginia Code § 23-4-16(d)(1) compels any of the four statutorily-identified entities, including the self-insured employer, to monitor PTD awards and “reopen a claim for reevaluation of the continuing nature of the disability and possible modification of the award.” The claimant sought to set aside a decision by the self-insured employer which vacated his PTD award, and argued that the language in West Virginia Code § 23-4-16(d)(2) barred the claimant’s former employer from being “a party to the reevaluation . . . .”  The claimant argued that Lowe’s involvement in the reopening and reevaluation process constituted a violation of the statute.

                      The Court found that reading the statute to disallow a self-insured employer from entitlement to invoke the provisions of West Virginia Code § 23-4-16(d) would be illogical and would nullify significant portions of the statute and create an absurd result. The Court noted that the proscription of former employers from being a party to the reevaluation process made arguable sense when the Commission was the entity who both assessed the requests to reopen PTD claims and then had responsibility for issuing rulings in conjunction with the reevaluation. To initially authorize the self-insured employer to reopen a PTD claim in one subsection of the statute but to disallow participation in the next subsection was paradoxical, in the Court’s words. In a footnote the Court noted that it was forced to interpret the “inherent inconsistency” in the statute’s language “in a manner that both makes sense and also prevents the remaining provisions of the statute from being rendered meaningless. If the Legislature disagrees with the interpretation, it can amend the statutory language that we were required to interpret through this opinion.”

                      The Court decided that to allow self-insured employers to initiate and be involved in the reevaluation process of PTD claims effectuates the purpose of the statute. The self-insured former employer’s involvement in the evaluation cannot be cited as a cause for challenge to an order issued by the West Virginia Worker’s Compensation Board of Review which modifies or vacates a previous award of PTD.

CONCLUSION

                      The West Virginia Supreme Court of Appeals held that the involvement of a self-insured employer in the reopening and reevaluation of a former employee’s PTD award is not a cause for challenge to an order that modifies or vacates a previous PTD award.

For further inquiries regarding West Virginia law contact Mr. Battle at (304) 340-3823 or at dbattle@spilmanlaw.com.

Merivic, Inc. and Zurich North America v. Enrique Gutierrez, Court of Appeals of Iowa, No. 2-722 / 12-0240

The Claimant was a 48 year old with a ninth grade education and a limited knowledge of English. His past job history included working as a mechanic, manual laborer and a welder.

While on the job, the Claimant fell from 10-12 feet and landed on a steel table injuring his left right and left rotator cuff. Both required surgery. He returned to light duty work in between the two surgeries; however following the second surgery the Claimant was only able to work three hours before he was told the work did not fit his restrictions. He never worked for the employer again and was unable to find other employment.

At hearing of the Claimant’s workers’ compensation case, the Claimant was found to have sustained a permanent and total loss of earning capacity as a result of his work injury. The deputy partially relied upon a report of a vocational expert who cited the Claimant’s limited fluency in English as an adverse effect upon his employability. The employer had urged the deputy to reduce the Claimant’s benefits due to an alleged lack of motivation to learn English. The deputy stated that the agency no longer penalized Claimants who failed to learn English while working for a U.S. employer.

On appeal to the commissioner, the employer urged that prior precedent regarding learning English be set aside; but the commissioner refused to do so. The commissioner affirmed the deputy’s decision and clarified that the disability determination was primarily based on factors other than lack of English fluency. The district court did not address the issue of overruling prior precedent with regard to learning English as they found substantial evidence supported the determination of total disability even without considering the language deficiency.

On appeal to the Court of Appeals, the employer again reiterated that prior case law with regard to a claimant’s inability to speak English should be overturned. The Court refused to address the issue as they found the assertion to be an impermissible collateral attack on an unappealed agency decision. The Court then stated that the issue was whether the finding by the commissioner of permanent total disability was supported by substantial evidence.

The Court found the finding by the commissioner was supported by substantial evidence. Specifically, the Court highlighted the opinion of the vocational expert retained by the Claimant which highlighted such factors as the Claimant’s advanced age, past work history of physically demanding jobs which his restrictions now prevent him from performing, limited education and his severe physical limitations. The Court noted the Commissioner’s finding of this vocational opinion as more convincing than the opinion of the Defendants’ vocational expert, and the underlying analysis distinguishing between the two based upon the use of a labor market survey.  

The Court then turned its attention to the consideration of the claimant’s limited proficiency with the English language. While noting the Commissioner’s assertion that this factor was not determinative in his decision, the Court confirmed that it had, in fact, been considered. They then went on to formally find that the inclusion of English proficiency in the industrial disability analysis was appropriate.  They also noted that substantial evidence did support the Commissioner’s finding that Claimant was deficient in his capacity to speak English, and his finding as to the impact of the deficiency on Claimant’s ability to find employment. 

Ultimately, the Court affirmed the decision of the Commissioner as supported by substantial evidence.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

New Deputy Commissioner Announced

On Friday, November 9, 2012, Commissioner Christopher Godfrey announced the hiring of William H. Grell, (Bill), as the new Deputy Workers’ Compensation Commissioner. Bill had previously been working primarily as a workers’ compensation defense attorney for Huber, Book, Cortese and Lanz, PLLC .,in West Des Moines, Iowa. Bill will commence his employment with the Division of Workers’ Compensation early in December.  For all of you interested, there is no word on Bill’s schedule for hearing cases yet.

THE MOST IMPORTANT 2011/2012 RULINGS BY

PENNSYLVANIA COURTS ON WORKERS’ COMPENSATION ISSUES

By: Jeffrey D. Snyder

I.      Pennsylvania Supreme Court:

Supersedeas Fund reimbursement; medical expense: 

Dept. of Labor & Industry v. WCAB (Crawford), 23 A.3d 511 (Pa., 2011)

Supersedeas Fund reimbursement of medical expense will be based on the date of the presentation of an invoice for medical services (implied to have been presented in due course), not the date of service. This case further suggests that supersedeas may be granted as to past medical expense, following the reasoning ofMark v. WCAB (McCurdy), 894 A.2d 229 (Pa. Cmnwlth., 2006)which held that a retroactive payment made after a denial of supersedeas (there in satisfaction of a granted claim) is reimbursable by the Supersedeas Fund. Note that the Commonwealth Court has separately concluded that the Fund isnot liable for reimbursement of funds owed a petitioner by a third party (in that case an employer was exonerated in favor of another, joined, employer).GMS Mine Repair & Maintenance, Inc., No. 92 C. D. 2011 (Pa. Cmnwlth.)

Statutory Notice; sufficiency:

Gentex Corp. v. WCAB (Morack), 23 A. 3d 528 (Pa., 2011)

The time, place and manner notice requirements of the Act are to be liberally construed from the totality of the circumstances. The admitted deficiency in notice here was the description/diagnosis of the injury, omitted by that claimant from her voicemail to the employer – a voicemail which merely indicated “work-related problems”. The Court considered this notice to be sufficient under its perceived mandated liberal interpretation to satisfy section 312 of the Act, which per the Court requires a “fact intensive inquiry”.

Employer provided Uninsured/Underinsured (UM/UIM); coverage exclusion:

Heller v. Pennsylvania League of Cities & Municipalities, No. 16 WAP 2009 (Pa., 2011)

Employer provided UIM coverage may not exclude from that coverage an employee entitled to workers’ compensation benefits since employees in the course of employment are the expected UIM claimants under the policy and therefore that exclusion would render the UIM coverage illusory.

In a case decided at about the same time, the Court held that an employee’s personal UM coverage would not extend to a work vehicle if the personal policy has such an exclusion (a ‘regular use’ clause). Williams v. GEICO, 2011 WL 4953433 (Pa., 2011) 

Statutory employment; owner of personal property:

Six L’s Packing Co. v. WCAB (Williamson), 2012 Pa. LEXIS 1238

In a case with coverage overtones, the Supreme Court held that an owner of personal property (i.e., a trailer) can be a statutory employer as to an entity with which it contracts for work that is a regular or recurrent part of the declared statutory employer’s business. Control of premises is not required under this framework for a finding of statutory employer. It is important to note that Six L’s did not have the Uninsured Employer Guaranty Fund (UEGF) as a party in the case. Questions may arise as to whether the UEGF is primary to any statutory employer for liability purposes.

Specific loss; average weekly wage (AWW) for specific loss purposes is AWW at time of resolution into specific loss - even where claimant is working at that time for a new employer:

Lancaster General Hospital v. WCAB (Weber-Brown), No. 69 MAP 2010 (4/11)

The claimant sustained an eye injury while earning $8.00 an hour at the Hospital. She had episodic flare-ups which treated and resolved. After she began working for Heart Group - at $21.00 an hour – she experienced a flare-up which did not resolve. A corneal implant then failed, and the claimant was left with loss of vision constituting specific loss. The Court held that the date of a specific loss is when a doctor tells the patient that there has been a loss of use for all practical intents and purposes that is work related, even if that means using wages from a new employer for the calculation of AWW. The Court reasoned that Section 309 of the Act, while referring to ‘employers’, was not specifically referring to any particular employer. The Court also noted that wages earned from other employers are utilized in other contexts, for example in the calculation of seasonal employment AWW.

II.     Pennsylvania Commonwealth Court:

A.     Burden of proof cases:

Challenge to relatedness of medical expense involving recognized body part; employer’s obligation to file Petition to Review:

CVA, Inc. v. WCAB (Riley), No. 2658 C. D. 2010 (10/11)

This case involves TMR (magnetic) treatment disputed as unrelated to the work injury. The Court indicates that in such a circumstance the employer is obligated to file a Petition to Review (treatment was to same body part as listed on NCP).

On another point, the Court followed prior case law stating that where a case proceeds on medical report, the medical report(s) must be signed. [by the provider]. Montgomery Tank Lines v. WCAB (Humphries), 792 A.2d 6 (Pa. Cmnwlth., 2002)

Maximum Medical Improvement (MMI) for Impairment Rating Evaluation (IRE) purposes is date specific:

Westmoreland Regional Hospital v. WCAB (Pickford), No. 1188 C. D. 2009 (9/11)

An IRE rating is not invalidated (i.e., the MMI assessment is unaffected) by a claimant demonstrating a change in condition over time. There were no objective signs of the work injury, Reflex Sympathetic Dystrophy,at the time of the IRE. The lack of objective findings was consistent with a progress note of the treating physician for a visit the day before the IRE which also reflected no objective findings.

Job availability; required where a claimant is receiving a disability pension (rather than regular retirement) even where claimant is admittedly not actively seeking employment:

City of Pittsburgh v. WCAB (Marinack), No. 100 C. D. 2011 (1/12)

The claimant sustained orthopedic and psychological injuries and was released to work with restrictions some four years later. He had been turned down for a disability pension because he was discharged from employment for cause, and for the same reason was not eligible for a retirement pension. He did apply for two jobs, and there were several visits to the Office of Vocational Services. The Court ruled that without an admission of retirement or the receipt of a retirement pension, the employer had the burden of proof to establish available work, for example through an Earning Power Assessment. “Accordingly, it was employer’s burden to show that it assisted claimant in returning to the work force, and it did not present such evidence.”

Discharge from employment for cause; entitlement to wage loss benefits on a Claim Petition:

BJ’s Wholesale Club v. WCAB (Pearson), No. 2010 C. D. 2011 (3/12)

The employer had a substance abuse policy which allowed up to termination of employment for being under the influence of alcohol while working. The claimant, asserting a work related injury after a customer ran over her foot with a shopping cart, was provided with suitable work. Her Claim Petition sought wage loss benefits from the date of her termination from employment which followed a .108 blood alcohol result. She was not visibly intoxicated, but there was medical testimony accepted as credible that at .108 she was under the influence, mirroring the language contained in the employer’s substance abuse policy. The Court held that the discharge for cause barred wage loss benefits, with the burden of establishing a causal link between wage loss and the work injury on a Claim Petition belonging to the claimant.

Fatal Claim; burden of proof; not relaxed:

Werner v. WCAB (Greenleaf Service Corporation), No. 25 C. D. 2011 (4/11)

Here, the issue was course of employment for a decedent with a home office. The decedent was found unresponsive in his home office, after perhaps being injured falling outside his home where blood was found. The widow/claimant could not establish what the decedent was doing while injured. The record was unclear as to cause, location and time of the injury. The dissent argued that a home office should be treated the same as an employer’s premises and that minor deviation did not break course of employment.

Accidental fatal drug overdose; drugs prescribed for the work injury; Utilization Review:

J. D. Landscaping v. WCAB (Heffernan), No. 1866 C. D. 2010 (10/11)

Decedent accidentally overdosed on medication prescribed by the sister/doctor of his treating physician. Two days prior to the prescriptions by the sister, the same prescriptions by brother were found not reasonable or necessary by Utilization Review (UR). The employer argued that because the prescriptions were not reasonable or necessary – further arguing that the UR should extend to the sister – it should not be liable for the resulting effect – death – from ingesting the prescriptions. The Court defined the claimant’s burden as establishing that the decedent died as the result of medical treatment for the work injury. The Court cited to multiple cases standing for the proposition that the issue of causation is separate and distinct from the reasonableness and necessity of medical treatment. The Court explicitly considered the UR Determination irrelevant to the discussion.

Disfigurement award; unsightliness:

Walker v. WCAB (Health Consultants), No. 492 C. D. 2011 (2/12)

A claimant must establish that otherwise compensable scarring is unsightly as a prerequisite to an Award for disfigurement. Here, the claimant had scars on her nose, and the tip of her nose was crooked following two surgeries. The WCAB reversed the WCJ’s Award after viewing the scarring itself, finding that the crookedness was not unsightly. The Commonwealth Court no longer independently views disfigurement, and deferred to the viewing by the WCAB.

Withdrawal from the labor force; receipt of Social Security disability and ability to engage in substantial gainful activity:

Burks v. WCAB (City of Pittsburgh), No. 980 C. D. 2011 (11/11)

“We agree with employer that, because claimant sought a disability pension that was based on her inability to engage in substantial gainful activity and because claimant’s work injury did not prevent claimant from engaging in substantial gainful activity, claimant voluntarily withdrew from the workforce.”

In footnote, the Court commented that it would be pointless to require an employer to establish job availability where a claimant has removed himself from the workforce. It appears important to the Court’s reasoning that the work related condition resulted in a light category work release while the non-work related conditions translated into a sedentary category release, thus establishing, overall, some residual work capacity trumped by the claimant’s implied admission of withdraw based on seeking the disability pension.

Funded employment; treated no differently than any other employment for a claimant seeking to reinstate within three years of date of last payment of partial wage loss benefits:

Sladisky v. WCAB (Allegheny Ludlum Corp.), No 67 C. D. 2011 (11/11)

The claimant was receiving partial wage loss benefits in funded employment. The funding ended when the claimant received 500 weeks of those partial benefits. The Court held that the claimant’s burden of proof on his post 500 week Petition was to show a worsening of condition to the extent of establishing the inability to do the light/funded employment. The claimant retired, and as such could not work in the employer’s Union facility, hence the funded employment elsewhere. The claimant agreed that but for the lack of funding and layoff, he would have continued working at the funded employment, thus defeating his burden of proof.

For filings within 500 weeks, the burden is to show that the job is no longer

available. The Court: “Simply, there is nothing untoward about funded employment. It is a legitimate way to bring an injured claimant back to work and reduce his disability from total to partial.”

B.     Supersedeas Fund reimbursement case

Supersedeas Fund reimbursement; availablity on a Petition to Review to set aside a Notice of Compensation Payable based on concealed medical history:

Comcast Corporation v. WCAB (Jones), No. 2208 C. D. 2010 (11/11)

Overruling almost a quarter century of precedent, the Court held that Supersedeas Fund reimbursement is available in any case where a Notice of Compensation Payable (NCP) is set aside on the basis of a concealed medical history (and should probably be interpreted expansively) since the statutory language provides that reimbursement is available “in any case”. The Court rejected prior precedent that relied on reasoning suggesting that benefits are due and payable under a NCP until it is actually stricken, pointing out that benefits payable under an open but later stricken NCP in general are no different than benefits paid under an open NCP while asserting a change in status (i.e., termination, suspension or modification) and should be treated no differently for reimbursement purposes.

C.     Enforcement cases

General Release of employment claim; obtained in connection with the Compromise and Release of a Workers’ Compensation case:

Miller v. Tyco Electronics, Ltd., 2011 U. S. Dist. LEXIS 135037 (M.D. Pa. 2011)

The claimant signed a General Release in connection with the resolution of her workers; compensation case, releasing her employment claim being investigated by the Pennsylvania Human Relations Commission (PHRC). The PHRC later issued a no cause letter, after which the claimant filed suit. The Court held that the suit was not released since the Release was unclear as to whether it was releasing the PHRC investigation based claim or the resulting suit which followed the no cause letter. The Court considered the claimant’s limited education, limited time to consider the matter (15 minutes before the workers’ compensation hearing) and lack of separate consideration for the Release.

Resignation of employment; obtained in connection with Compromise and Release Agreement:

Lee v. Unemployment Compensation Board of Review, No. 2085 C. D. 2010 (1/11)

In short: “Finding these [discussed] cases persuasive, we adopt their rationale. Accordingly, we hold that when a claimant agrees to execute a resignation/release in order to settle a workers’ compensation claim, the claimant terminates her employment voluntarily without necessitous and compelling cause.”

D.     Limitation cases

Petition to Reinstate from a Suspension filed more than 500 weeks after suspension; time barred; statute of repose:

Palaschak v. WCAB (US Airways), No. 1699 C. D. 2010 (6/11)

The claimant was injured in 1992. Benefits were suspended on February 5, 1996. The claimant filed a Petition to Reinstate on April 21, 2006. The claimant argued that he was not time barred in seeking total benefits, in that he should have three years from the provision of modified work to file a claim for benefits. The employer argued that the time limit was 500 weeks form the date of last payment, and that argument prevailed. The Court relied on section 413 (a) of the Act. The Court emphasized that the applicable period was not 500 weeks plus three years, distinguishing the receipt of partial wage loss benefits which is then subject to a three year statute of limitation. The Court further noted that the 500 week limitation was a statute of repose, meaning that the right and the remedy are both extinguished when the limitation period expires. Two Judges dissented.

Another recent case notes that the expiration of a statute of repose deprives a Court of jurisdiction. (Cozzone v. WCAB (Pa. Municipal/East Goshen Township), No. 664 C. D. 2011 (1/12))

III.   Pennsylvania Superior Court:

Scope of privilege; communication with expert by counsel:

Barrick v. Holy Spirit Hospital, 1856 MDA 2009 (Pa. Super., 11/11)

Written communications between counsel and an expert containing posited mental impressions or legal analyses are protected by privilege and need not be produced in discovery.

Questions that might arise in the context of workers’ compensation claims can be directed to:

Kevin L. Connors at  kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).

PENNSYLVANIA WORKERS’ COMPENSATION

SUBROGATION LIEN OUTLINE

By: Kevin L. Connors, Esquire

Recently presenting at a reinsurance conference on the issue of Pennsylvania workers’ compensation subrogation liens, one that all of us probably think about every day, being that not insignificant monies have been expended in paying for workers’ compensation benefits, in the form of wage loss and medical compensation benefits, it occurred to us that the thrill of recovering those monies, through the perfection and prosecution of subrogation lien claims, continues to astonish, dumbfound, and dazzle our claims consciousness, as we simply demand, what we affirmatively believe, are our statutory entitlements.

Obviously, this outline is simply a function of Section 319 of the Pennsylvania Workers’ Compensation Act, setting forth:

“Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employee, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employee, his personal representative, his estate or his dependents. The employer shall pay that proportion of the attorney’s fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employee, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future installments of compensation.”

When workers’ compensation benefits have been paid, and the tantalizing thought exists that a third party is responsible for having caused those payments, in which case the following calculations come into play, in the event that the person that you have paid workers’ compensation benefits to, proves that a third party was responsible for those benefits, to include:

           Total amount of third party recovery;

           Accrued workers’ compensation lien, for both wage and medical benefits;

           The expenses of recovery;

           The balance of recovery.

With the above cha-ching dollars in play, proceeds must now be distributed, and that requires that the proceeds be distributed, with the following being calculated:

           1)        Accrued lien expense reimbursement rate, requiring division of the accrued lien by the total amount of the third party recovery;

           2)        Expenses attributable to accrued lien, requiring multiplication of the expenses of recovery by the accrued lien expense reimbursement rate;

           3)        Net lien (amount employer to receive in satisfaction of lien), requiring that the expenses attributable to the accrued lien be subtracted from the accrued lien, leaving a net lien.

Hold on now, because that might not be the end of our lien calculations.

No less true, there might still be future benefits that are payable, potentially empowered by the third party recovery and lien issues, and that future liabilities will require calculations as to the future distribution of proceeds.

This requires that we apply the reimbursement rate on future compensation liability, requiring that the expenses of recovery be divided by the total amount of the third party recovery, resulting in the employer/insurer being responsible for paying a percentage of future weekly benefits and medical expenses, to satisfy its obligation to reimburse its pro rata share of the attorney’s fees and expenses that were incurred in securing the carrier’s lien recovery, with that percentage being paid by the employer/insurer until its subrogation interest is exhausted.

Upon exhaustion of the subrogation lien interest, compensation liability again attaches at the 100% rate, subject to the wonderful defenses that the Pennsylvania Workers’ Compensation Act provides, whatever they might be on any given day.

As for all of these delightful calculations, there are, nevertheless, other considerations, necessitating the statutory purposes for subrogation, being threefold, the first being, prevention of double recoveries, and the second being avoidance of the employer/insurer paying compensation caused by someone else’s fault, and the third being to make the responsible party pay, redistributing liability in reliance upon life as we know it.

So what else do we need to know about subrogation?

Well, it is an absolute primary right, that attaches upon there being a third party recovery, either through settlement or verdict.

It is a right that, unbelievably, is not negated by the employer/insurer’s failure to cooperate in the prosecution, of the third party case, to secure that third party recovery.

No less magically, this right is not negated by the injured employee’s comparative negligence.

It is an all-inclusive right, meaning that it encompasses all past, present, and future workers’ compensation benefits, although it does not include your administrative claim expenses.

As for enforcement issues, therein lies the rub, although workers’ compensation has exclusive jurisdiction over subrogation lien issues, these issues typically arise in the interplay between workers’ compensation and civil litigation, and a workers’ compensation judge’s order, enforcing subrogation, and requiring distribution of third party settlement proceeds in satisfaction of a subrogation lien, might have little effect outside the workers’ compensation province, as a workers’ compensation judge’s order cannot be used as an order of attachment against the corpus, being the body of funds, on deposit in some account somewhere, presumably either counsel’s or the employee’s, such that it might be necessary to seek civil remedies, to enforce attachment via a judgment against the proceeds.

So, what else should be considered?

Well, subrogation liens cannot be asserted against recoveries that are triggered by ADA-type litigation, as they are regarded as being separate and distinct from the liabilities typically associated with causing the physical/mental injury, that results in the payment of workers’ compensation benefits.

Third-party recoveries cannot be re-apportioned, in avoidance of satisfying the lien, in order to try to assign proceeds to spousal consortium claims, and/or to re-allocate the recovery, in satisfaction of non-economic claims for pain and suffering, etc.

Subrogation liens are absolutely applicable to legal and medical malpractice claims, although the liens might be limited to benefits paid after the actionable malpractice, and might not, therefore, be all-inclusive, in terms of all benefits paid under the workers’ compensation claim.

Moreover, if a workers’ compensation claim is being settled, with the settlement being perfected under a Compromise & Release Agreement, it is necessary that the Compromise & Release Agreement reflect the parties’ agreement, with respect to the subrogation lien issues, and, obviously, any satisfaction of a subrogation lien requires that the parties prepare and submit a Third-Party Settlement Agreement to the Bureau, reflecting the satisfaction of the lien, and setting forth all applicable calculations as to the third party recovery, the applicable lien amounts, the net lien recovery, and the reimbursement rate, in the event that compensation benefits are being suspended, during the period that the employer/insurer would be re-paying its pro rata share of the fees and expenses attributable to its recovery of its subrogation lien.

As an absolute matter of practice, every workers’ compensation claim should be viewed through the Newtonian prism of the potential involvement of third party liability, and employers and insurers should be encouraged to place Claimants and counsel on notice of subrogation lien rights as early as possible, in avoidance of being left on the dance floor in between song selections.

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 mouthpieces 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 National Workers’ Compensation Defense Network (www.nwcdn.com) 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.

Questions that might arise in the context of workers’ compensation claims can be directed to Kevin L. Connors at kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).

TO POST OR NOT TO POST

By

Kevin L. Connors, Esquire

Whether tis nobler to post on Facebook, and to suffer the salubrious likes and dislikes of friends promoting health and welfare, while conspicuously visible to the naked eye of the known universe, or to sulk, alas, silently, while a classic battleground has arisen, at least for civil litigation discovery purposes, between those who post and those who use post its!

Previously reporting on Facebook issues that arose inMcMillen, yet another Facebook decision has come out of the Pennsylvania Common Pleas system, with the Honorable Richard Walsh, in the Franklin County Court of Common Pleas, granting the Defendants’ Motion to Compel inLargent v. Reed and Penna, compelling the Plaintiff to provide the Defendants with her Facebook e-mail and password, to allow the Defendants access to the Plaintiff’s Facebook postings.

The trial court order required Plaintiff to produce this information within fourteen (14) days, allowing the Plaintiff to change her Facebook password thirty-five (35) days after the date of the order, in order to restrict access by defense counsel.

Several attributes of Facebook were reviewed by the trial court, in its Opinion, as follows.

First, Facebook, although it has a privacy policy, that policy is ever-changing.

Next, only people with a user account can access Facebook, although access, for all practical purposes, is available to anyone with an e-mail account, who can then establish a Facebook account.

Facebook requires that users be at least 13 years or older, although this policy is impossible to enforce, and appears to be openly flouted.

Facebook users can set their privacy settings to various levels, although a user’s name, profile picture and user ID are always publicly available.

At the least restrictive setting, being “public”, 800,000,000 (that’s right) Facebook users can view whatever is on a user’s profile.

The intermediate level restricts visibility to the user’s Facebook friends, with the most restrictive, only allowing the user to view their profile.

Since Facebook permits “tagging”, whereby friends can tag each other in postings, such as photographs, notes, videos, or status updates, Facebook users know that their Facebook information can be shared by default, requiring the user to take affirmative steps to prevent the sharing of such information.

InLargent, the defense contended that the Plaintiff must be compelled to disclose her Facebook user name and password, as her profile was public, and the defense contended that the Plaintiff’s Facebook posts contradicted her claims of serious injury. Seeking to block the defense from having access to her Facebook postings, the Plaintiff contended that the information sought was irrelevant, and that the disclosure of this information might potentially cause unreasonable embarrassment and annoyance. The Plaintiff also claimed that disclosure violated privacy laws, in particular, the Stored Communications Act of 1986.

In a very well-reasoned Opinion by Judge Walsh, reviewing and resolving Pennsylvania’s discovery standards, potential privilege and privacy concerns, privilege issues under Pennsylvania Law, the Stored Communications Act, in the scope of the defense’s discovery request, Judge Walsh found that the information sought on the Plaintiff’s Facebook profile was not only relevant, was not covered by any specific privilege, and that the requests to produce was not unreasonable, and that the information sought was discoverable.

No less true than inMcMillen, which also permitted the defense access to a Plaintiff’s Facebook postings,Largent seems to track the general thrust of Facebook-profile litigation, which is that there is no keeping secret that which is already public.

If you post, it is public, and if it is public, it is discoverable.

As a routine manner, discovery requests, on both sides of the aisle, account for the humanoid penchant for always gazing with profane wonder into the miraculous caricature of our own lives, replicating postings in the Facebook universe as though sculpting a more perfect image of ourselves, and this is not discoverable why.

If Facebook is a still pond, the post that you place on its unbroken face is the ripple substantiating your existence.

No matter where you post, there you are!

Practically Speaking

How could you possibly think that this would have any other outcome, other than disclosure.

Knowing that no one is alone, Facebook legitimizes a license we all secretly sanction, which is simply self-importance through a medium permitting publication without consequence in terms of historical importance.

Face it, we post because we can, and because we can, we are drawn, like moths, to this flame.     

ConnorsLaw LLP

Trust us, we just get it! 

It is trust well spent!

Defending liability-based lawsuits throughout Pennsylvania, on behalf of insurance carriers, third-party administrators, and self-insured businesses and corporations, our 100+ years of cumulative experience defending our clients against negligence and occurrence-based liabilities, empowers our Casualty Practice Trial Group attorneys to be entrusted to create the factual and legal leverage to expeditiously resolve lawsuits and claims, in the course of limiting/reducing/extinguishing our clients’ potential liabilities under Pennsylvania’s common law, trial practices, and rules of civil procedure.

With every member of our trial practice group being AV-rated, our partnership with the Pennsylvania Defense Institute and the Counsel on Litigation Management magnifies the lens through which our professional expertise imperiously demands that we remain dynamic and exacting advocates for our clients, the same being businesses, corporations, insurance carriers, seeking our trial and litigation acumen, to navigate the frustrating and liability-intensive minefield pervasive throughout Pennsylvania trial practice and procedure.

Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors at kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).

REFRESH YOURSELF:

THE PERSONAL COMFORT DOCTRINE IN WORKERS’ COMPENSATION

By: Kevin L. Connors, Esquire

I.         INTRODUCTION:

Universal throughout workers’ compensation statutes, the personal comfort doctrine is a real, and sometimes amusingly interesting, result-oriented principle ubiquitous in workers’ compensation decisions and rulings, at times testing the boundaries of compensability, as employees attending to personal needs, for comfort or sustenance, to include work-time breaks for eating, drinking, using the restroom, smoking, or otherwise seeking relief from discomfort, sustain injuries for which compensation is then sought.

It is necessity’s offspring, recognizing the need for both rest and refreshment, with its genesis spawned by the policy consideration that “the real reason (for the personal comfort doctrine) is that a working man must live and recognizing this, the employer has provided both physical conveniences and their opportunity for their use. Modern industry conditions provide the real basis for compensation and should be recognized. The Personal Comfort Doctrine, (1960 Wis. L. Rev. 91, 92).

Simply stated, the personal comfort doctrine judicially justifies that certain on-the-job acts of personal comfort are “necessarily contemplated” to be incidental to the employment itself, blanketing any inevitably attendant danger with compensability. This doctrine, by its very definition, incorporates a certain element of foreseeability as to compensability, as it marries an accidental work injury with a necessary personal comfort.

In the eloquently-sculpted analysis of Professor Larson, the general rule concerning the personal comfort doctrine can be thought of as follows:

“Employees, who within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or, unless, in some jurisdictions, the method is so unusual and unreasonable that the conduct cannot be considered an incident of the employment”.

See 2 A. and L. Larson, Larson’s Workers’ Compensation Law § 21 (2002).

And the most common personal comfort situations involve work breaks around food, drinking, smoking, hygiene and toiletry functions, and fashion statements involving clothing. 

           A.        General Rule:

The general rule, almost universally applicable, subject to distinct jurisdictional relevance, is that injuries occurring in the course and scope of employment, while furthering the interests of the employer, are considered to be work-related and, therefore, compensable, with workers’ compensation statutes providing for compensation benefits that will include lost wages, and payment of reasonable, necessary and related medical care expenses. 

No less true, courts analyzing personal comfort cases are oftentimes forced to distinguish between a brief, or minor detour or deviation, as opposed to situations where the activity resulting in injury is one that must be characterized as having broken or severed the chain of what is considered to be the course and scope of employment, necessitating a factual/legal analysis as to whether the injury occurred during an activity incidental to employment, being one that benefits the employer by improving employee efficiency, as opposed to one where the converse was true. 

           B.        Personal Comfort Awards in Pennsylvania:

The following are Pennsylvania personal comfort cases where benefits were awarded, with compensability being established:

·         Employee injured in motor vehicle accident afterstopping for dinner with co-employees while traveling from a construction site to obtain supplies and drop off a co-worker was found to be a compensable injury under the Pennsylvania Workers’ Compensation Act(Employer’s Mutual v. Boiler Correction and Repair, 964 A.2d 381 (Pa. Super. 2008).

·         Employee working from an employer-approved home office, was awarded workers’ compensation benefits, when she fell down the stairs, in route to the bathroom, for personal comfort(Verizon Pennsylvania v. WCAB, 900 A.2d 440 (Pa. Cmwlth. 2006).

·         Workers’ compensation benefits were awarded when an employee, while completing a furniture delivery to a residence, sustained a traumatic brain injury, while attempting to jump up and touch a basketball rim on the property, with the Pennsylvania Commonwealth Court finding that “intervals of leisure activity during the work day are deemed inconsequential departures from the act of delivering furniture for the employer”(Baby’s Room v. WCAB, 860 A.2d 200 (Pa. Cmwlth. 2004).

·         A momentary departure from working, to use a bathroom facility, did not remove the employee from the course of employment.  (Montgomery Hospital v. WCAB, 793 A.2d 182 (Pa. Cmwlth. 2002).

·         InCarroll v. WCAB, 750 A.2d 938 (Pa. Cmwlth. 2000), the employee was awarded workers’ compensation benefits for loss of use of an eye, resulting from a detached retina caused by the employee attempting to suppress a sneeze, to avoid spreading germs to co-employees during a business meeting.

·         InCity of Harrisburg v. WCAB, 616 A.2d 1369 (Pa. 1992), the Pennsylvania Supreme Court found that a police officer who shot himself while cleaning his weapon at home was in the course and scope of employment, as the police officer had no place to store his weapon at work, and the Court ruled that a work activity performed at home is notper se outside the course and scope of employment.

·         InKovalchik Salvage v. WCAB, 519 A.2d 543 (Pa. Cmwlth. 1986), an employee, killed in a head-on collision driving a company car, in route to his home, after stopping for drinks and then taking co-employees home, was found to have sustained compensable fatal injuries, with workers’ compensation benefits being awarded.

·         InDe’Agata National v. WCAB, 479 A.2d 98 (Pa. 1984), an employee entering a luncheonette, to purchase a cup of coffee, was found to have sustained compensable injuries, when shot in the head and abdomen.

·         Shockingly, an employee, who was shot and killed, after stopping his truck along a roadway in order to relieve himself, was found to have sustained work-related injuries, in the course and scope of employment, by the Pennsylvania Commonwealth Court inWCAB v. Borough of Plum, 340 A.2d 637 (Pa. Cmwlth. 1975).

           C.        Personal Comfort Awards in Other Jurisdictions:

·         In Utah, its Court of Appeals affirmed an award of workers’ compensation benefits to an injured worker, notwithstanding the fact that the worker had been terminated, after the worker had returned-to-work in a light-duty position, following the employee’s work injury, with the employee having been terminated by the employer for sending pornographic images to other employee’s cell phones, over a company e-mail account. 

            Bizarrely, the Utah Court rejected the employer’s argument that light-duty work   continued to be available to the employee, and that the employee’s termination forcause should have been characterized as a constructive refusal of available light-           duty work, due to the employee’s improper activities.

·         An Illinois “smoke break” case is illustrative of break-time accidents, as this case involved an employee taking a break to smoke a cigarette, with the employer having a designated smoking area on the floor below where the employee worked, and there was only one stairway connecting where the employee worked to the employer’s designated smoking area; in route to the smoking area, the employee fell, and was injured, with the Illinois Court finding that the injury was compensable, as it fell within the personal comfort doctrine, as the employee’s injury was connected to their employment, the employee was not doing anything unreasonable or dangerous when injured, with the employer being in control of the premises, through designation of the smoking area.

·         InLevine v. People’s Broadcasting, decided in 1965, the West Virginia Supreme Court held that an employee who was attempting to raise himself from a toilet seat by leaning on a wash basin, who was injured when a pipe broke, was found to have been acting within the course and scope of his employment, with workers’ compensation benefits awarded, as the Court held “that an employee is within the scope of his employment as provided by the Act when he is administering to his own health and comfort if that be reasonably necessary to his employment, citing toArchibald v. Workmen’s Compensation Commissioner (decided in 1916). 

            Moreover, the West Virginia Court noted that an employee is “acting within the   course of his employment when he is engaged in doing, for his master, either the            act consciously and specifically directed or any act which can fairly and       reasonable be deemed to be an ordinary and natural incident or attribute of that act    or a natural, direct, or logical result of it.  If in doing such act, the servant acts            negligently, that is negligence within the course of the employment”.

·         Most employers might think that this was a pretty crappy result!

·         In Illinois, an employee who was injured attempting to dislodge a bag of Fritos stuck in a vending machine on the employer’s premises was found to have sustained a compensable and work-related injury, notwithstanding the chips having been purchased by a co-worker, such that the employee seeking to retrieve the bag of chips was not doing so for his own consumption. 

The Illinois Commission applied the personal comfort doctrine, in awarding workers’ compensation benefits. 

This ruling survived appeal, with the Illinois Appellate Court affirming the lower commission’s award of workers’ compensation benefits, as the Court found that the employee’s actions tracked a line of “scope of employment” cases, expanding coverage to employees acting to aid others in emergency situations, although the Court impolitely noted that “what the instant case lacks in urgency, it makes up for in familiarity and collegiality”. 

Essentially, the workers’ compensation award survived the employer’s appeal, as the appellate court concluded that the Commission could have reasonably concluded that the employee’s manner of assisting the Frito-purchasing employee did not necessarily cross the line of employment, potentially barring the award of benefits for the Frito-saving employee.

See Circuit City Stores v. Illinois Workers’ Comp. (7/9/09).

·         The Washington Supreme Court, inBall Foster Glass v. Giovanelli, upheld an award of workers’ compensation benefits to an traveling employee, who regularly traveled around the country rebuilding and fixing furnaces for his employer, when he, on assignment to a company plant in Seattle, was injured on his day off, as he was headed to a park with his supervisor to go to a concert; on crossing a street in front of the hotel, he was struck by a motor vehicle, and was seriously injured. 

The employer appealed the award of workers’ compensation benefits, on grounds that the employee had not been engaged in a recreational activity that had any business purpose behind it. 

Upholding the compensability of the employee’s injuries, the Court relied upon the “commercial traveler rule” or the “continuous coverage rule”, which is a rule that holds that a traveling employee is considered to be in the course of employment during his or her entire trip, except for a “distinct departure on a personal errand”. 

Holding that distinguishing between reasonable personal administrations and purely personal amusement adventures can be difficult, the Washington Supreme Court nevertheless found that compensation courts have routinely had little difficulty denying compensation benefits for unusual or unreasonable activity, such as the denial of compensation benefits for a Florida employee injured during a skiing trip, at a resort 50 miles away from the hotel that the employee had been staying in. 

Although the employer in Foster argued that the employee’s activity was a deviation from his employment, and that his actions in crossing a highway without a right of way was an “inherently dangerous” activity, the Washington Supreme Court rebuked that argument, citing to the personal comfort doctrine as follows:

“The scope of activities covered by the personal comfort doctrine depends on the particular circumstances of employment. A traveling employee is entitled to broader coverage than a non-traveling employee because a traveling employee is in a significantly different position of risk than a non-traveling employee. The non-traveling employee may satisfy his personal needs without leaving the comfort of            home.  In contrast, the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise”.

·         In Vermont, workers’ compensation benefits were awarded to an employee who was injured during lunch, while shooting off bottle rockets, with the Vermont Court finding that the injury did fall within the scope of the personal comfort doctrine. See, Notte v. Rutland, 112 Vt. 498 (1942).

·         In Georgia, a Claimant was awarded workers’ compensation benefits, when she injured her knee, as she bent over to pick up a pill off the floor. The Claimant was 300 lbs., and her knee buckled, causing her to fall, when she bent over to get the pill. The employer presented evidence that the employee’s knee buckled because of an idiopathic condition. However, the Georgia Court awarded workers’ compensation benefits, finding the claim to have been compensable based on the personal comfort doctrine, as the employee’s job was that of a custodian, sometimes requiring her to pick items off the floor.

In granting compensation benefits, the Court compared this fact scenario with cases where employees were injured when getting food and drink, or using a restroom, while working.

                       See Harris v. Peach County Board, 674 S.E. 2^ND 36 (2/11/09).

·         InLiberty Northwest Insurance v. Nichols, when a 6 Or App 664 (2003), an employee who broke his tooth while eating an employer-supplied piece of candy was awarded workers’ compensation benefits, overcoming the employer’s defense that the Claimant’s injury had not occurred within the course and scope of employment, as the Oregon Board found that the employee’s injury occurred as he was “eating while working”, and that the employee had not been engaged in personal recreational or social activities.

·         InThompson v. Keller Foundations, benefits were awarded to a Florida employee, a construction worker, who was injured in an accident that occurred as he was driving home from work, after stopping at a bar to shoot pool with co-workers.  The claim was initially denied by the insurance carrier, as well as by the workers’ compensation judge, but the appeals court reversed the denial of compensation benefits, finding that the employee’s injuries were indeed incidental to employment.

This case is illustrative, as the injured employee was traveling for business.  Although travel to and from work is typically not compensable under the “coming and going” rule, Courts take a more inclusive approach in evaluating injuries, when an employee is traveling overnight for business.

In reversing the lower court decision, the Florida Court stated:

“A traveling employee is deemed to be in the continuous conduct of his employer’s business including those times when he is not actually at work but is engaged in … normal and necessary activities.  Thus, so long as a traveling employee’s injury arises out of a risk which is reasonably incidental to the conditions of employment, the injury will be compensable. Although the appellant may have been engaged in amusement activities immediately prior to the accident, the JCC did not make any findings sufficient to conclude that the traveling construction worker was not attending to a normal creature comfort and a reasonable necessity – driving to dinner – when his injuries were sustained.”

This case illustrates the inclusive 24/7 nature of overnight business travel, in terms of compensability.

·         In Washington, workers’ compensation benefits were awarded to an employee, inDial v. Taplett Fruit Co., when the employee was injured, as she was walking to her car, during a morning rest break, to smoke a cigarette. As a result of falling, she sustained a low back injury, with the employer denying the claim, on grounds that the employee was not furthering the employer’s business interests when she was injured.  Telling, the employer did allow its employees to smoke in their cars during their rest breaks.

                       The Washington Court concluded that the employee had not left the course of her employment, as she was engaged in a “personal comfort that was reasonably incidental to her employment”. So concluding, compensation benefits were awarded to the employee.

·         InCooper v. Barnickel Enterprises, the New Jersey Superior Court awarded workers’ compensation benefits to an employee, who was injured while using a company vehicle, that he was using to drive to get coffee.  The employee was a master plumber and foreman. He had driven to a job location, to discuss the job details.  Arriving at the jobsite, the person that he needed to talk was not available, and would not be so for almost 45 minutes.  The employee decided to drive to a deli about 5 miles away, to get some coffee.

In route to the deli, the employee was injured in a motor vehicle accident, sustaining several injuries, resulting in the New Jersey Division of Workers’ Compensation awarding workers’ compensation benefits to the employee.  In awarding benefits, the Court found that the employee had been “engaged in exactly the kind of brief activity which if embarked on by an inside employee working under set time and place limitations, would be compensable under the personal comfort doctrine”.

·         And now, a pregnant paws worthy of the Australian personal comfort case that “went viral” on the Internet, being the case of the Australian public servant, who sought, was denied, and has now been awarded workers’ compensation benefits, as a result of her being injured while having sexual intercourse on a work-related business trip.

Initially, her claim was denied before the Australian Administrative Appeals Tribunal (AAAT), which denied her claim for workers’ compensation benefits, over the passionately poignant plea of her salaciously libidinous lawyer, who argued that she had sustained her injuries in the “ordinary prevue of human life”, and that she was not injured while engaged in performing any activity of gross misconduct or self-harm, her injury being no different than that of a traveling employee who might be injured while bathing or seeking sustenance, an argument countered by the employer arguing that her injuries were sustained in the course of “frolic of the applicant’s own”, during the course of a “quintessentially private activity”.

The employer argument being that “having sex is a different kettle of fish”, clearly distinguishing the “catching” from “caught”.

While the AAAT denied the Claimant’s lascivious claim, the Claimant pressed onward, appealing to the Federal Court of Australia, which, on April 19, 2012, overturned the AAAT, setting aside the Tribunal’s lecherous denial, in the course of which the Australian Court rendered 26 Findings, akin to what we refer to as Findings of Fact, followed by an additional 29 Considerations, akin to our Conclusions of Law.

In reliance upon personal comfort precedence in Australian compensation law, the Court found in favor of the employee seeking compensation for her sexual misfortune, holding as follows:

“Accordingly, it shall now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or incurs the employee to spend that interval or interlude at a particular place or in a particular way.  Furthermore, the injuries sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of misconduct taking him or outside the course of employment.”

                       Well, that certainly settles it!

Exactly, where do we go next? The simple rule being, that you need not be working, to be considered “employed”.

Although true, the Australian Court went to great lengths to diffuse the splatter effect of a case like this, given that media and Internet buzz created by it, and its infinitely special ability to replicate its affect across multiple jurisdictions, as it twies to avoid being tantalized by tweetfulness.

And what might have happened, with altered facts, if the Claimant, in fact, became pregnant and/or contracted a sexually-transmitted disease, are compensation benefits actually owed to the Claimant?

                       The answer is, of course, “it depends”.

            D.        Denied Personal Comfort Cases in Pennsylvania

What follows are illustrations of Pennsylvania personal comfort cases where benefits were denied:

·         In theDepartment of Labor & Industry v. WCAB, 977 A.2d 585 (Pa. Cmwlth. 2009), a state employee on a paid break off of the employer’s premises, who was attending to her own personal comfort, was not awarded workers’ compensation benefits, as she was not injured in furtherance of the employer’s business or affairs.

·         InGraves v. WCAB, 983 A.2d 241 (Pa. Cmwlth. 2009), an off-duty Philadelphia Housing Authority patrolman who was shot in an altercation with an armed bar patron was not found to have been engaged in police action in furtherance of the employer’s business when injured.

·         InBrookhaven Baptist Church v. WCAB, 912 A.2d 770 (Pa. Cmwlth. 2006), a church member and trustee, who was also paid to cut grass on the church grounds, was found to be outside the course and scope of his employment, when he was fatally burned while destroying lawn trimmings that he had gathered from pruning the shrubs.

·         InWright v. WCAB, 871 A.2d 281 (Pa. Cmwlth. 2005), an employee who was struck while crossing a highway, as he attempted to retrieve personal items from his own vehicle, was denied compensation benefits, as the Court found that the employee was not required by his employment to be crossing a highway at the time of the incident. 

·         DUH!       

·         InSchrif v. WCAB, 658 A.2d 2 (Pa. Cmwlth. 1995), an employee who was dismantling a hoist that the employer was permitting the employee to take home to use on a personal home project, was denied workers’ compensation benefits, when he was injured while dismantling the hoist, as the employer had given the hoist to the employee as a courtesy, and the Court found that the injury had not occurred in the scope of employment, nor did it further the employer’s interests.

·         InPesta v. WCAB, 621 A.2d 1221 (Pa. Cmwlth. 1993), an employee was collecting cans from the employer’s premises, intending to sell them, was not awarded fatal claim benefits, when he was fatally injured, as he crossed the street, to put the cans in a parked car.

·         InHabib v. WCAB, 29 A.3d 409 (Pa. Cmwlth. 2011), the Pennsylvania Commonwealth Court held that an employee, who sustained an injury to his eye, as he and other employees, all laborers, were attempting to smash a bowling ball found near the parking lot where they were working, with several employees having used the bowling ball in a shot-put challenge, after which the employees took turns trying to smash the bowling ball with a sledgehammer, with the injured employee being injured when shattering the bowling ball as a piece of the shattered ball flew into his eye. 

The workers’ compensation judge, awarded workers’ compensation benefits to the employee, finding that his actions, while careless, had not taken him outside the course and scope of employment, although the judge’s compensation award was vacated and reversed by the Pennsylvania Workers’ Compensation Appeal Board, which found that the employee had acted in violation of a positive work order, as his supervisor had told him to “knock it off”, further telling the employee that he would not take the employee to the hospital, if the employee was injured hitting the ball. 

On further appeal to the Pennsylvania Commonwealth Court, the Court held that the employee’s injury was not compensable, as it occurred while the employee was violating a positive work order, further holding that 3 requirements are necessary to bar an injury for violation of an employer work order, including:

                       a)         that the injury must be caused by the violation of the work injury;

                       b)         that the employee must know about the positive work order; and,

                       c)         that the Order must implicate an activity not connected with the                                        employee’s work duties.

           E.        Personal Comfort Denials in Other Jurisdictions:

The following claims involve Courts denying personal comfort claims, finding that the injuries had not occurred within the course and scope of employment, and that the injured employees had deviated from their normal work activities:

·         In Indiana, a morbidly obese long-term employee, weighing over 360 lbs. was not found to have been engaged in an “activity of daily living”, when she suffered a cracked femur as she tried to get herself out of a booth in a university cafeteria, during an employee appreciation dinner. Although she was successful in securing an award of workers’ compensation benefits from the first level factfinder, on appeal, the appellate court held that her injury was personal to her, and that there had been no increased risk created by her work environment, with the Court further observing that her pre-existing physical condition probably contributed to her injuries, and undoubtedly hampered her recovery, resulting in her injuries being found to be personal, and not work-related.

·         In a Florida case, in Galaida v. AutoZone (9/27/04), an employee was denied workers’ compensation benefits, when he was injured on a smoke break in the company parking lot. Although the employer allowed employees to take smoke breaks, the employee was getting cigarettes out of his car, when a gun fell out of his car, as he opened the car door, the gun discharged, and shot him in the foot.  The employee was denied workers’ compensation benefits on a deviation from course of employment theorem, which is an extension of the violation of positive work order rule, as the employer had a policy against possessing firearms on company premises.

On appeal, the appellate court held:

“The personal comfort doctrine incorporates a foreseeability element to the cause of injury.  Thus, inHolly Hill Fruit Products, 473 So. 2^nd A29 (1985), an employee was injured while crossing a street to purchase cigarettes was held to have sustained a compensable injury because the “trip was a foreseeable and non-prohibited refreshment break activity, and the employer’s authority over Claimant was not significantly dissipated during the course of the trip”.

“Being exposed to a firearm, however, is not a foreseeable consequence of an authorized cigarette break, especially when the possession of a firearm is strictly prohibited by the employer. Moreover, Galaida’s possession of a firearm, in violation of his employer’s policy, was not conducive to the employer’s interests. Thus, he should not benefit from the doctrine.”

·         TheOregon Supreme Court in  Roberts v. SAIF, 341 Or 48 (2006) denied workers’ compensation benefits to an employee who was injured while riding a motorcycle around the lot of his employer’s car dealership, with the Oregon Court finding that the employee’s injury was not compensable or work-related, applying the following analysis:

“Texturally ORS 656.005(7)(b)(B) raises three questions. The first is whether the worker was engaged in or performing a “recreational or social activity”. The second is whether the worker incurred the injury “while engaging in or performing, or as a result of engaging in or performing,” that activity. The final question is whether the work engaged in or performed the activity “primarily for the worker’s personal pleasure” if the answer to all of these questions is “yes”, then the worker cannot recover”.

The Oregon Supreme Court distinguished between activities performed for personal pleasure as opposed to activities performed for personal comfort.

            F.         The Smoking Duck:

That’s right, a smoking duck is a loaded fowl.

So, you as the benevolent employer, must balance stockholder demands against employee retention and productivity.

So what are you looking for, when a claim is reported to you, that seems to fall along the fault lines of personal comfort?

Well, from a practical and pragmatic perspective, it is axiomatic that the doctrine of common sense, not always applicable in a no-fault compensation system, be applied, as otherwise logic and reason fall prey to the collusive dark ages of intellectual chaos. The relevant analytical template begins with a description of the activity in question, to include lunch breaks, on and off premises, supplied or not by the employer, drinking, smoking, use of toilet facilities, washing hands, changing clothes, and seeking relief from heat, cold, or discomfort, not to include the supervisor’s baneful eye. 

Garnish the described activity in question with its time, location and purpose, to determine if, during work hours, after work hours, on your premises, off your premises, during some type of employment-related trip or travel, considering its purpose, the catch all being, was the activity under the compensation microscope advancing your business interests.

Then grab your trusty employee handbook, check the described activity in question against permissive and non-permissive stuff. Did you give permission for the activity, or does it violate a work or safety order?

II.       LOOSE ENDS:

·         Compensability is in the eye of the judge;

·         It is a doctrine as ancient as workers’ compensation law;

·         Universally, it is a doctrine based on decisional authority, untethered to any statutory provisions;

·         Telecommunications expand the scope of both personal comfort and personal discomfort, requiring an intense analysis by the employer as to whether the injury occurred within the course and scope of employment, whether the injury fell within the employee’s job description, whether it occurred in furtherance of the employer’s business interests;

·         This doctrine is intended to balance the personal needs of the employee against the business interests of the employer, so plan accordingly.