PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
10/01/2022 – 10/25/2022
EMPLOYMENT RELATIONSHIP
IDI Logistics, Inc. v. Larry Clayton and Uninsured Employers Guarantee Fund (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided October 18, 2022
Issue:
Whether Claimant was Employer’s employee and not an independent contractor? Whether Employer established that it offered Claimant valid light-duty work?
Background:
Claimant filed a claim petition against Employer seeking medical and wage loss benefits for a work-related left wrist injury. Claimant also filed a claim petition against the Uninsured Employers Guaranty Fund (UEGF). The workers’ compensation judge (WCJ) issued an opinion concluding that Claimant had not established employee status. The Board noted that employment status is a question of law reviewable on appeal, albeit based on facts of record, and emphasized Employer’s control in assigning loads to drivers, paying drivers by the mile rather than by the load or job, paying for gas and insurance for its trucks, requiring use of its trucks for its jobs, and forbidding drivers from using its trucks to drive for other companies; the Board also observed that trucking was part of Employer’s regular business. The Board concluded that the independent contractor agreement Claimant signed was not dispositive when considered against the evidence favoring employee status. The Board remanded to the WCJ for determination of the extent and duration of Claimant’s disability. On remand, the WCJ did not take further evidence other than a stipulation by counsel that Claimant returned to work with a new employer at a higher rate of pay in October 2018. The WCJ concluded that Employer had not offered Claimant specific light-duty work during his period of disability. On Employer’s post-remand appeal, the Board affirmed, finding Employer’s offer to pay Claimant for riding along with other drivers lacked the requisite specificity and documentation to warrant a suspension of benefits. The Board reaffirmed its previous conclusion that Claimant was an employee rather than an independent contractor.
Holding:
Under Sections 103 and 104 of the Workers’ Compensation Act (Act), an independent contractor is not entitled to benefits, due to the absence of a master/servant relationship. Employer and UEGF argue that Claimant did not establish employment status because Claimant failed to show that Employer had the right to control Claimant’s work; therefore, the Board erred in reweighing the evidence and reversing the WCJ. Many facts weigh in favor of finding employee status. Employer owned and insured the trucks and paid for gas. Claimant did not keep Employer’s trucks at his home when he was not working. He was free to work for other companies but could not use Employer’s trucks to do so. While on the road in Employer’s truck, Claimant would call in to Employer’s dispatcher and receive another assignment; Employer apparently also would call Claimant and offer assignments. Here Claimant could refuse an assignment. But the ability to refuse an assignment is not dispositive of contractor status. Also, the company barred its drivers from using its trucks for outside work. Claimant was guaranteed payment for each mile he drove Employer’s truck. Payment by the mile is a variation on payment by the hour, which is the hallmark of an employment relationship. The entire risk here is borne by Employer, who must pay Claimant for each mile he drives regardless of what the customer pays or, even, does not pay Employer. Employment status is a question of law fully reviewable on appeal. The facts here, viewed reasonably and in the unique context of the trucking industry, sufficiently support an inference that Claimant was an employee. Further, the WCJ did not err in finding that Employer’s job offer lacked sufficient specificity. Employer’s offer to pay Claimant for riding along with other drivers does not include the date when the offer would take effect or expire, a rate of pay, a schedule, or an assurance that the work would remain within Claimant’s insured capacity. There is no indication that Employer’s offer was in bad faith or deliberately vague, but the WCJ was within his discretionary authority in finding it insufficient to limit or negate an award of benefits.
Affirmed.
Patricia Duty and Debra Miller, Admin. of the Est. of Jennifer Wright v. WCAB (Johnson Controls, Inc., Master Staffing, LLC, Zurich American Ins. Co., and Arch Ins. Co.)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 19, 2022
Issue:
Whether the temporary employment agency or the company to whom an employee was assigned was the employer for purposes of the Workers’ Compensation Act?
Background:
Claimants, on behalf of the two minor children of Decedent, petitioned for review of the order of the Workers’ Compensation Appeal Board affirming the decision and order of the Workers’ Compensation Judge (WCJ), who granted Claimants’ fatal claim petition against Johnson Controls, Inc. (JCI). It was the prevailing Claimants who sought to shift liability for benefits to Master Staffing; JCI had accepted liability for benefits. Decedent was hired by Master Staffing, a temp agency, which referred her as a potential worker to JCI, a client company manufacturing air-handling equipment. Claimants filed a fatal claim petition against JCI. JCI filed a joinder petition alleging that Master Staffing might have been Decedent’s employer.
Holding:
The right to control the performance of work is the overriding factor here. The WCJ found, based on credible testimony, that JCI instructed Decedent as to how to perform her job duties at its facility; that JCI could and did direct Decedent as to when her shift started, when to take breaks, and which department she would work in on a particular day; that JCI provided the equipment, uniforms, and safety gear that Decedent needed to perform her job duties at its facility; that JCI determined if Decedent was performing the work properly or if any disciplinary issues needed to be addressed; and that Decedent contacted JCI directly if she had to call off work and required a JCI employee’s permission to take off. Master Staffing had no representatives present at the JCI facility and provided no input concerning the Decedent’s day-to-day activities performed there. The Board did not err in affirming the decision of the WCJ with respect to JCI being Decedent’s borrowing employer. The identity of the insurer is not relevant to the central inquiry of this case, which is who had the right to control the manner of Decedent’s work. The provision of workers’ compensation coverage may be considered but is not a determinative factor of whether an employee is borrowed. Note: The Court referred to the Act’s “exclusivity provision,” as the “elephant in the room,” and the driving force behind this case. Claimants wanted to sue JCI in a third party lawsuit and JCI wanted to avoid such a suit.
Affirmed.
SUMMARY RELIEF
Walter T. Swierbinski v. Uninsured Employers Guaranty Fund
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 20, 2022
Issue:
Whether the Petitioner may obtain mandamus relief by means of an order compelling the Uninsured Employers Guaranty Fund (Fund) to pay Petitioner workers’ compensation benefits awarded by a workers’ compensation judge (WCJ)?
Background:
Petitioner sustained a work injury. Employer did not carry workers’ compensation insurance, and Petitioner filed a claim petition naming the Fund, as well as the employer. The WCJ directed that the Fund pay wage loss benefits to Petitioner in the amount of $453.33 per week with a credit for payments in lieu of compensation Petitioner received from Employer. The Fund appealed the WCJ’s decision to the Workers’ Compensation Appeal Board (Board). The Board denied supersedeas. Petitioner filed his Petition for Relief (PFR) seeking the Fund’s compliance with the WCJ’s order, alleging that the Fund has failed and refused to comply with the WCJ’s order to pay Petitioner compensation. Petitioner requested judgment in his favor and an order directing that the Fund pay Petitioner’s compensation as awarded by the WCJ. Subsequent to Petitioner’s filing of the PFR, the Board issued an order reversing the WCJ on the basis that Petitioner’s claim against the Fund was barred by Section 1603(b) of the Act, for failing to notify the Fund within 45 days.
Discussion:
An application for summary relief is evaluated according to the standards for summary judgment. Petitioner does not have a right to the relief requested, as he cannot meet the requirements for mandamus relief. Specifically, Petitioner has an adequate remedy at law, pursuant to Section 428 of the Act, 77 P.S. § 921, which provides as follows: Whenever the employer shall be in default in compensation payments for thirty days or more, the employee or dependents entitled to compensation thereunder may file a certified copy of the agreement and the order of the department approving the same or of the award or order with the prothonotary of the court of common pleas of any county, and the prothonotary shall enter the entire balance payable under the agreement, award or order to be payable to the employee or his dependents, as a judgment against the employer or insurer liable under such agreement or award. In the absence of language to the contrary, Section 428 of the Act is applicable to the Fund.
Application Denied.
VIOLATION OF POSITIVE ORDER
Fine Arts Discovery Series, Inc. v. Daniel Critton (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: October 20, 2022
Issue:
Whether Claimant violated Employer’s positive work order when he used the rear entrance of the theater, therefore removing him from the course of his employment at the time of his injury?
Background:
Claimant suffered a work injury when he slipped and fell on ice while utilizing the rear entrance of a theater operated by Employer. Employer denied liability for Claimant’s injury on the basis that Claimant violated Employer’s policy against entering the theater through the rear door and therefore Claimant’s injury was not sustained in the course of employment. The WCJ noted that the affirmative defense of violating a positive work order requires that an employer demonstrate that a policy existed, of which the claimant was aware, and that the claimant’s violation of the policy removed him from the course of employment and concluded that employer failed to demonstrate that Claimant’s use of the rear entrance removed him from the course of his employment. The WCJ disagreed with the employer. The Board affirmed the WCJ.
Holding:
To assert the defense that a claimant was in violation of a positive work order at the time he sustained an injury, the employer must prove that (1) the injury was caused by the claimant’s violation of the order; (2) the claimant actually knew of the order; and (3) the order implicated an activity that was not connected with the claimant’s work duties. An injury sustained in the performance of an act that is connected to a claimant’s work duties is compensable, even if the act itself violates the employer’s positive work order. Employer had not specified how Claimant’s use of the rear entrance versus the alternate entrance in the front has so removed him from his duties as a security guard that the activity should render him a stranger or trespasser. One of Employer’s witnesses testified that security personnel are occasionally stationed at the rear entrance of the theater, and Employer presented no evidence that Claimant’s duties as a security guard did not encompass this location. Consequently, it cannot be said that the rear entrance to the theater was a location at which Claimant had no duty to perform and his presence there could be likened to that of a stranger or trespasser. At the time of his injury, Claimant was simply attempting to access the building to begin his work duties. It cannot be said that such an activity is so disconnected from Claimant’s job duties that he was removed from the course of employment when he was injured.
Affirmed.
IMPAIRMENT RATINGS
Saundra Fanning v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided October 6, 2022
Issues:
Whether the WCJ erred in reinstating TTD benefits as of the date the Claimant filed her reinstatement petition instead of the date her disability status was modified from total to partial?
Background:
Claimant was working for the City of Philadelphia (Employer) as a police officer when she sustained injuries to her left arm, right ankle, and back in 1999. A 2013 decision by a WCJ modified Claimant’s disability status from total to partial as of August 7, 2012, the date of an IRE. On March 9, 2020, Claimant filed a petition seeking reinstatement of TTD benefits arguing that, because the method of the 2012 IRE was ruled unconstitutional in Protz II, she was entitled to a reinstatement of benefits as of the date that the IRE was performed. In its 2021 decision, the WCJ granted Claimant’s petition and reinstated her TTD benefits as of the date the petition was filed. The Board affirmed.
Holding:
Claimant filed her reinstatement petition on March 9, 2020, well after the Supreme Court issued its Protz II decision, thus precluding retroactive application. Because Claimant did not challenge her 2012 IRE until after Protz II was decided, she is entitled to a reinstatement of benefits as of the date that her reinstatement petition was filed. Claimant has no vested property right to earlier TTD benefits, or to any other workers’ compensation benefits.
Affirmed.
Raymond George v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided October 11, 2022
Issue:
Whether the Board erred by affirming the WCJ’s decision reinstating his temporary total disability (TTD) benefits effective the date the claimant filed his reinstatement petition, instead of the date benefits were originally modified?
Background:
In 1999 the Claimant sustained injuries while in the course and scope of his employment as a police officer for Employer, for which he received TTD. In 2012, Claimant underwent an Impairment Rating Evaluation (IRE) during which the doctor determined that Claimant had an 8% whole-body impairment. Based upon the parties’ agreement memorialized in a 2012 WCJ decision, Claimant’s status was modified to temporary partial disability (TPD) effective January 5, 2012. Based upon Protz II, on May 14, 2019, before 500 weeks of Claimant’s TPD expired, Claimant filed the Reinstatement Petition to have his TTD reinstated effective January 5, 2012. On September 17, 2019, Claimant underwent a new IRE which determined that Claimant had a 6% whole-body impairment. Employer filed a Modification Petition, claiming that Claimant’s disability status should again be changed to TPD effective September 17, 2019. The WCJ granted the Reinstatement Petition effective as of the May 14, 2019 Reinstatement Petition filing date and granted the Modification Petition effective as of the September 17, 2019 IRE date, with a credit against the 500-week partial disability cap for the weeks Employer paid Claimant TPD. Claimant appealed from the portions of the WCJ’s decision granting the Reinstatement and Modification Petitions to the Board. The Board affirmed.
Holding:
The Board did not err by upholding the WCJ determinations granting Claimant’s Reinstatement Petition effective May 14, 2019 and granting the Modification Petition effective September 17, 2019. Claimant did not challenge the validity of the January 5, 2012 IRE until after Protz II was decided. Therefore, Claimant is not entitled to reinstatement of total disability benefits as of the IRE date but, rather, at the time he filed his reinstatement petition. This is consistent with the overall remedial purpose and humanitarian objective of the Act, which is intended to benefit the injured worker. Further, based on the Court’s previous rulings that Act 111 is constitutional and applicable to injuries occurring prior to October 24, 2018, the Board properly upheld the WCJ’s decision granting the Modification Petition effective as of the September 17, 2019 IRE date.
Affirmed.
COUNSEL FEES
Stanley Magurczek v. Philadelphia Federal Credit Union (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 20, 2022
Issue:
Whether, and to what extent, the Claimant is entitled to summary relief as to counsel fees in light of the Lorino holding.
Background:
Employer filed a request for utilization review. The Bureau denied the UR Request. In response, Employer applied for review by a workers’ compensation judge (WCJ). The WCJ affirmed the Bureau’s determination but held that Employer had a reasonable basis for filing the UR Request. The WCJ then awarded $2,500 in attorney’s fees to Claimant’s counsel (Counsel) pursuant to Section 440(a) of the Act. The Board reversed the WCJ’s award of attorney’s fees on the basis that Section 440 of the Act only allows an award of attorney’s fees for an unreasonable contest. Claimant seeks summary relief pursuant to Pa. R.A.P. 1532(b), which allows for immediate disposition of an appeal where the right of the applicant thereto is clear.
Holding:
Lorino repudiated the reasoning relied upon by the Board to deny claimant an award of attorney’s fees. Lorino did overturn the Court’s longstanding rule that Section 440 only allowed attorney’s fees if the employer engaged in an unreasonable contest. Lorino held that where the employer has established a reasonable basis for its contest the WCJ is permitted, but not required, to exclude an award of attorney’s fees. Based upon Lorino, The Court granted the claimant’s application to the extent it sought reversal of the Board’s holding that attorney’s fees under Section 440 are automatically excluded where there was a reasonable basis for filing the UR Request.
Reversed and Remanded.
LITIGATION COSTS
Denise Lawhorne v. Lutron Electronics Co., Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 18, 2022
Issue:
Whether the WCJ erred or abused his discretion in denying reimbursement of claimant’s medical expert’s deposition fee where Claimant prevailed on a disputed issue in the litigation of the Termination Petition?
Background:
Claimant sustained an injury in the course and scope of her employment with Employer. Employer recognized the injury as a left-hand strain. Thereafter, Claimant filed a Review Petition to expand the description of her injury to include a left shoulder strain, left carpal tunnel syndrome, left wrist strain, left elbow strain, and left arm strain. She also filed Reinstatement and Penalty Petitions. Employer later filed a Termination Petition. Ultimately, the WCJ rejected the testimony of Claimant and her medical expert, as well as Employer’s medical expert, as not credible and detailed his reasons why. The WCJ concluded that Claimant successfully defended the Termination Petition and was entitled to ongoing partial disability benefits. Because Claimant prevailed in part, the WCJ awarded Claimant reimbursement for litigation costs, but less the $3,800 fee for claimant’s expert’s deposition because he rejected the doctor’s testimony as not credible. Claimant appealed the WCJ’s decision to the Board, which affirmed. With regard to the denial of the expert’s fee, the Board echoed that, although Claimant successfully defended against the Termination Petition, its expert’s deposition did not contribute to Claimant’s success because the WCJ rejected his testimony as not credible. Thus, the Board declined to disturb the WCJ’s denial of reimbursement.
Holding:
Section 440(a) of the Workers’ Compensation Act (Act) authorizes an award to a claimant for litigation costs where the claimant prevails in part or in whole. For litigation costs to be reasonable, the WCJ must ascertain the extent to which they relate to the matter at issue on which the claimant prevailed. The costs incurred do not have to contribute to the success of the matter at issue. In situations where an employer unreasonably contests a particular issue, attorney’s fees are assessed in an amount attributable to the litigation of that issue, and not the entire claim. This rationale for apportionment of attorney’s fees logically extends to other litigation costs where a claimant prevails in part. Claimant partially prevailed in the litigation by successfully defending against the Termination Petition, Claimant is entitled to recoup any costs related thereto. The Court reversed the Board’s determination insofar as it affirmed the WCJ’s complete denial of claimant’s expert’s fee and remanded for the WCJ to calculate and assess an award of the medical expert’s fee insofar as it reasonably related to the issue of whether Claimant had fully recovered from her work-related injury upon which Claimant prevailed.
Reversed and Remanded.
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
10/1/2022-10/25/2022
SCOURSE OF EMPLOYMENT
Keim v. Above All Termite & Pest Control
Superior Court of New Jersey, Appellate Division
No. A-3660-20; 2022 WL 6833581
Decided: 10/12/2022
Background:
Keim was employed by Above All as a pesticide applicator. He traveled from his home in a company vehicle to job sites, and obtained supplies from Above All’s shop in Forked River. Michael Zummo, the owner of Above All, directed employees not to carry large quantities of pesticides and supplies in their company vehicles because of risk of exposure to the elements and the risk that they will be stolen.
On July 16, 2020, Keim was on his way to Above All’s shop to replenish the supplies he would need for the day, when he was in a series motor vehicle accident, causing his head to hit the inside of the vehicle and for him to lose consciousness, as well as injuries to his left flank and ribs. Keim reported the accident. Two months later, Keim was experiencing balance issues and reported the symptoms to Above All, who advised him to seek medical attention, eventually requiring surgery. On October 21, 2020, Keim filed a workers’ compensation employee claim petition. Above All then filed a motion to dismiss, alleging that Keim’s injuries did not occur in the course of his employment. On July 13, 2021, the Judge of Compensation (JWC) issued an oral decision and order dismissing Keim’s petition with prejudice, determining that Keim’s injuries were not compensable because they did not arise within the course and scope of his employment. Keim appealed.
Holding:
Keim argued that he was performing duties required by Zummo, and was not commuting to work, but instead was engaged in an activity that was specifically directed by his employer, namely driving his company vehicle to Above All’s shop to retrieve the necessary supplies for his workday. The court gives a history of the “going and coming” rule, and how it was replaced with the premises rule. The premises rule states that an injury arises in the course of employment if it occurs on the employer’s premises. However, this rule has two notable exceptions: 1) the special mission exception, and 2) the authorized operation of a business vehicle. The court holds that the activities in this matter fall under the second exception, which states that the authorized operation of a business vehicle on business authorized by the employer is an exception to the premises rule.
The court further held that “when an employer directs or requires an employee to undertake an activity, that compulsion, standing alone, brings an activity that is otherwise unrelated to work within the scope of employment.” The court also distinguishes that employees who work off-premises are within the scope of their employment when they are where they are supposed to be and doing what they are supposed to be doing, except when they are commuting.
The court holds that Keim was within the course and scope of his employment at the time of the accident and was performing duties that were expressly authorized and directed by his employer, which falls within the authorized operation of a business vehicle exception, and therefore his injuries are compensable under the Act.
Reversed and Remanded.