Posts Tagged ‘employer’

    A TEXAS  worker injured on a drill rig in the Northern  part of Pennsylvania is entitled to be covered by workers comp under the laws of Pa. despite having signed a contract with his Texas based employer that he would  pursue any work injury claim in Texas and only accept Texas benefits. Any person injured on the job in Pennsylvania is entitled to utilize  the Pennsylvania Workers Comp Act regardless where their employer is based.

            Karen was working as a clerk and had the choice of either eating her lunch on her employer’s premises or going out for the same. There was a strip mall across the road from Karen’s employer that included a food store and a doughnut shop. One day while on lunch break, she decided to cross the highway to get her lunch. Karen picked up a sandwich and some other food to take back to some of her co-employees. Unfortunately though, on her way across the highway, she was struck by an oncoming vehicle. As a result of being struck, Karen sustained numerous injuries which would keep her out of work for almost six months.

ISSUE:          Is Karen entitled to Workers’ Compensation benefits?

ANSWER:     No. Karen would not have been considered in the scope and course of her employment. In cases like this, Karen was actually injured off of her employer’s premises and was in no way furthering her employer’s business or affairs. If Karen had been sent by one of her supervisors to pick up the food, then quite possibly she would have been considered covered.

 Disclaimer: The above article is for instructive purposes only and each case is fact sensitive.  Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column. 

     The Pennsylvania Commonwealth Court has ruled that a denial of workers compensation benefits was proper in a case involving the issue of whether the injured worker (“claimant”) was in the course and scope of employment when the injury occurred. In Penn State University v. WCAB (Smith), the Court has determined that evidence was insufficient to establish that the workers’ compensation claimant, Mr. Smith, injured himself while in the “course and scope” of his employment.  Smith broke both of his ankles when he jumped down a flight of stairs while on his lunch break. Typically, an injury is compensable under the Workers’ Compensation Act only if the injury arises in the course of employment and is causally related thereto. An injury may be sustained in the course of employment under the Workers’ Compensation Act where the employee is injured on or off the employer’s premises while actually engaged in furtherance of the employer’s business or affairs. However, an activity that does not further the affairs of the employer will take the employee out of the course and scope of employment and serve as a basis for denial of the claim. Generally speaking, neither small temporary departures from work to administer to personal comforts or convenience, nor inconsequential or innocent departures will remove the claimant from the course and scope of employment.

     In the day of his injury, Mr. Smith was cleaning dorm rooms at Perry Hall for Employer’s Housing Department.  Claimant left Perry Hall to take his 30 minute unpaid lunch leave at Bruno’s, an on-campus dining facility where Claimant had an employer-sponsored meal plan. Claimant was walking from Perry Hall to Bruno’s on a walkway that included three flights of stairs. He intentionally jumped down the second flight of approximately twelve steps, landing very hard with his feet flat and fractured both ankles.

     The Court determined that Mr. Smith’s actions in light of the nature of his employment (performing housekeeping or cooking duties) could not be viewed as furthering employer’s business or affairs noting that he voluntarily jumped down a flight of stairs on a “whim,” and that he had thoughts of doing it before the injury date. The Court went on to state that he did not trip or fall down the stairs, but walked up to the edge and jumped off the stairs and injured himself upon landing.  The Court concluded that the employer did not encourage in any way Claimant to jump a flight of stairs during his lunch break and that the facts did not establish that Smith’s actions furthered a specific interest of Employer.

Update- In an earlier post (set forth below) I discussed subrogation rights of an employer who has paid Heart and Lung Act benefits to an injured employee.  On January 28, 2011, the Pennsylvania Supreme Court issued a decision In Oliver v. City of Pittsburgh holding that Heart and Lung and Act Benefits are not subrogable. 

        Under the Pennsylvania Workers Compensation Act, when an employer has paid benefits to an injured worker as a result of a work injury that was caused by the negligence of a third party, the employer is entitled to recoup whatever benefits it has paid from the injured employee’s recovery from the negligent third party. This concept, known as subrogation, often comes in to play when an employee is injured in a motor vehicle accident while in the course and scope of employment.
Generally speaking, the employer’s subrogation rights are absolute with regard to recouping payments made under the workers Compensation Act. An interesting issue has arisen in this Commonwealth with respect to subrogation rights of a municipality with respect to benefits paid under the Heart and Lung Act. The Heart and Lung act addresses payments made to a certain class of employees (i.e. police officers, firefighters, etc.) for injuries incurred while “in the performance of (their) duties”. The key distinction between workers compensation wage loss benefits and Heart and Lung benefits is that workers compensation benefits are generally 2/3 (or 66.66%) of an employee’s pre-injury earnings while Heart and Lung benefits are 100% of the employee’s pre-injury pay.
In 2009, the Pennsylvania Commonwealth Court addressed the issue of a municipality’s subrogation rights relative to payment of Heart and Lung benefits. In Oliver v. City of Pittsburgh, the court held that an employer that pays benefits under the Heart and Lung Act is entitled to subrogate against the injured employee’s third party recovery. This decision effectively reversed a prior Commonwealth Court ruling from 2002 that held an employer, while having a right to subrogation relative to benefits paid under the Workers Compensation Act, did not have the right to subrogate as to the Heart and Lung benefits paid.
Again, as indicated above, the Pennsylvania Supreme Court has reversed the Pennsylvania Commonwealth Court and has held that Heart and Lung and Act Benefits are not subrogable.

Paul had worked for a Texas-based natural gas drilling company out of Texas for a number of years. The company started to develop drilling sites in Northeastern Pennsylvania, and Paul was put up at a hotel close to the drilling site. Paul had never had an accident in the ten previous years he had worked, despite doing very physical types of activities while working with the various drills on the sites.

Paul’s good fortune ran out though, and he jammed his hand on one of the drill bits, seriously injuring the hand. Paul’s employer was insistent that since Paul was employed out of Texas and the employer was based out of Texas, that he would have to file his comp claim under Texas law.

Issue: Is Paul’s employer correct?

Answer: No. In Pennsylvania, regardless of where an employer is principally located and/or where a contract for hire was entered into, if an injury occurs in Pennsylvania, then Pennsylvania has jurisdiction and Paul will be entitled to benefits under Pennsylvania law. Pennsylvania’s workers’ compensation benefits are, for the most part, far more generous, and the injured worker is provided far more protection than in other states, especially states in the South and Midwest.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

The Pennsylvania Workers’ Compensation Act requires that a Notice of Ability to Return to Work form must be issued to an injured worker (the “claimant”) in a “prompt” fashion in order for an employer to pursue a modification or suspension of the claimant’s wage loss benefits based on an earning power assessment. However, the Act does not define what constitutes “prompt” written notice. Pennsylvania courts have held that the purpose of this statutory requirement is to provide notice to an injured worker that (1) there is medical evidence that the claimant can perform some work, (2) that benefits could be affected, and (3) that the claimant has an obligation to look for work. A claimant must have notice that her benefits could be affected before the employer attempts to modify benefits by showing earning power which is typically done by expert vocational testimony showing open and available work that falls within the claimant’s work-related restrictions and is within the claimant’s geographical area. Otherwise, a modification petition would be a claimant’s first notice that a doctor has found the claimant capable of work. The appellate courts have thus determined that “prompt written notice” requires an employer to give a claimant notice of the medical evidence it has received within a reasonable time after its receipt lest the report itself becomes stale. It also requires an employer to give notice to the claimant a reasonable time before the employer acts upon the information. This necessarily requires an examination of the facts and timeline in each case to determine if the claimant has been prejudiced by the timing of the notice.

The Pennsylvania Commonwealth Court has ruled that the employer/insurance carrier is responsible to pay for repair of modifications to a bathroom required to accomodate an injured worker who was rendered a paraplegic by a work-related injury. The Court chracterized the bathroom as an “orthopedic appliance” such as a wheelchair, which Employer is obligated to provide per Section 306(f .1) (1)(ii) of the Workers’ Compensation Act. Thus, the Court held that the cost to repair or replace the bathroom is compensable under the Pa. Workers’ Compensation Act.

James suffered catastrophic injuries, including quadriplegia, when the truck he was driving as an employee for Peter Pan Transport, Inc. went off the road on Interstate 81 south of Scranton. James’ attorney brought suit against various manufacturers of component parts of the truck.

Unfortunately for James, Peter Pan Transport, Inc. had destroyed and failed to preserve key parts of the truck, including the brakes themselves, “black boxes” that monitored the action of the antilock brakes and motor, and other items. Based upon these actions, James sought to sue his employer, Peter Pan Transport, Inc., because he alleged that they either intentionally or negligently destroyed all of the evidence he would need to establish his claim.

Normally, an employee cannot sue his employer due to the exclusivity provisions of the Workers’ Compensation Act in Pennsylvania. These provisions bar suit when the employee is in the scope and course of employment at the time of his injury.

Issue: Can James sue his employer in this case?

Answer: Yes. James is not alleging in his complaint damages from his former employer for physical injuries to himself during the course of his employment as a driver. Rather, he alleges that he has economically been damaged as a result of the alleged actions of his former employer, Peter Pan Transport, Inc., in destroying essential evidence that may well fatally damage any right of action he would have had against the manufacturers of the component parts involved in the braking system.

In cases like that of James, which are called products liability lawsuits, a preservation of the evidence is absolutely essential so that the defendants have a fair opportunity to inspect the alleged defective parts themselves. Absent the availability of these parts for inspection by all parties, these types of suits are thrown out of court.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

Louie had been working for the Pig & Pork Trucking Company for ten years as an over-the-road truck driver. Pig & Pork Trucking Company had their home office in Indiana. When Louie was hired, he went out to Indiana to fill out his employment application.

On August 17th, Louie was driving back from the west coast on I-80 not far from the Bloomsburg Exit. For some unknown reason, a car that was passing Louie went out of control directly in front of Louie. Poor Louie was badly injured, and it looked like he was going to miss an extended period of time of work.

Louie’s employer insisted that Louie file his comp claim in the state of Indiana since that is where his employer was located, and that is where Louie signed his contract of employment. Louie insisted that he was entitled to workers’ compensation benefits under Pennsylvania law.

Question: Who is right?

Answer: Louie is right. It doesn’t matter that Louie lives in Pennsylvania, but any individual that is hurt while in the scope and course of their employment in the state of Pennsylvania, regardless of where the employer is located or where the contract for employment was entered into, has a right to proceed under the Pennsylvania Workers’ Compensation Act. Injured employees oftentimes select Pennsylvania when they can because of Pennsylvania’s favorable benefit allowance for injured workers.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.