Pennsylvania Workers' Compensation Law:
The Impact of the Acme Markets Decision,
Revival of a Forgotten Defense

Written by: James A. Tinnyo, Esquire

Introduction

For nearly a quarter of a century, Pennsylvania Workers’ Compensation claimants and their counsel have enjoyed the certainty of knowing that there is a relatively uncomplicated method of establishing the work-relatedness of a particular injury, even when those injuries occur off the employer’s premises. Medical evidence connecting the condition to the employment was sufficient to establish a work-related injury, without regard for where the injury ultimately manifested itself. However, a recent Commonwealth Court case, Acme Markets, Inc. v. Workers’ Compensation Appeal Board (Purcell ), 819 A.2d 143 (Pa. Cmwlth. 2003), may make the path to compensability a significantly more difficult one to travel.  In order to understand the potential impact of Acme Markets, it is necessary to review the evolution of the law which defines the term “injury” for purposes of compensability under the Workers’ Compensation Act.

Pre-1972 Law

Prior to 1972, the Pennsylvania Workers’ Compensation Act imposed the requirement that a compensable injury result from a traumatic, specific accident. Such requirement was borne out of concern by the legislature that failure to impose such a limitation would result in compensating every employee who manifested an injury at work, regardless of the causal relationship of the employment to the resulting injury. The effect however, of imposing such requirement soon proved to be so onerous to injured employees, that as a result, courts, as they often do, began to relax this standard by the creation and application of a number of legal doctrines. See McLemore, Heart Attacks and the Pennsylvania Workmen’s Compensation Act: Establishing the Causal Relationship Between Employment and Injury, 81 Dickinson L. Rev. 111 (1976).

The first of these doctrines was the “unusual pathological result” doctrine. This principle was fashioned to ease the burden of establishing a compensable injury where the worker was engaged in his or her usual work activities and suffered some unfavorable medical consequence as a result. Under the old “accident” standard, such workers would have been barred from receiving compensation given the lack of a specific incident or accident. Under the “unusual pathological result” analysis, it was sufficient to prove that the worker suffered some unexpected medical result, such as a break, disruption or lesion as a result of normal job duties. Such doctrine however, did not satisfactorily address individuals with pre-existing conditions, as one could not, under this standard, rule out contribution to the injury from a pre-existing condition. Id. at 115, citing Parks v. Miller Printing Machine Co.,  336 Pa. 455, 9 A.2d 742 (1939)

In an attempt to address this additional concern, the courts created a second doctrine to liberalize the “accident” standard, referred to as the “unusual strain” doctrine. Under this approach, the existence of a pre-existing ailment was not a bar to recovery so long as the employee could prove he or she was performing an unusual task or was subjected to greater stress than normal which resulted in injury.  However, the application of this doctrine still placed limitations on recovery, since many occupations by their nature are “normally” strenuous or stressful. Id. at 116.

As indicated above, the formulation of these doctrines only partially addressed the perceived inequity to the injured worker and created unpredictability in the outcome of particular cases which may have been similar but for some minute factual distinctions.  Such an approach to resolving compensability issues was subject to vigorous criticism -- the outcome of an individual case might very well depend on such legal gamesmanship as artful pleading and carefully crafted testimony to establish, either an unusual pathological result or an unusual stress as a result of employment activities where an employee might not otherwise have described the event. Comment, Pennsylvania Workmen’s Compensation: An Analysis of Persistent Problems in the Recent Legislative Reform, 77 Dickinson L. Rev. 445 (1972).

The Pennsylvania Supreme Court, when previously faced with this dilemma, declined to abandon the unusual strain doctrine in favor of simply permitting recovery when the employee could establish that ordinary work activity substantially caused the injury, leaving that task to the legislature. Hamilton v. Procon, Inc., 434 Pa. 90, 252 A.2d 601 (Pa. 1969); see Torrey, Pennsylvania Bar Association Workers’ Compensation Law Section Newsletter, Vol VII, No. 74, p.8,  April-May 2003; see also Comment, Pennsylvania Workmen’s Compensation: An Analysis of Persistent Problems and Recent Legislative Reform, supra.

The 1972 Amendments

Three years later in 1972, the Pennsylvania Legislature responded, passing an amendment that eliminated the “accident” requirement for proving a compensable injury. The amended and current version of the Act, section 301(c)(1), read in comparison to the old version, states in pertinent part, as follows:

The terms “injury” and “personal injury,” as used in this act, shall be construed to mean [only violence to the physical structure of the body] an injury to an employee,regardless of his previous physical condition, arising inthe course of his employment and related thereto, and  such disease or infection as naturally results [therefrom] from the injury or is aggravated, reactivated or acceleratedby the injury; and wherever death is mentioned as a causeof compensation under this act, it shall mean only death resulting from such [violence] injury and its resultant effects,   and occurring within three hundred weeks after the [accident] injury. The term [“injury by an accident in the course of “injury arising in the course of his employment,” as used in this article, shall not include an injury caused by an act of a third person…but shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere…Pennsylvania Worker’s Compensation Act, section 301(c)(1). (Deleted portions of the old language bracketed; the amended language in bold).

This amendment, by removing the language referring to “violence to the physical structure of the body” and ”injury by accident,” and substituting language indicating that an injury includes conditions which naturally result from or aggravate, reactivate or accelerate pre-existing conditions, effectively eliminated the requirement to show either an unusual pathological result or unusual strain to establish a compensable injury.

The Impact of Krawchuk

As a result, it became significantly easier for employees to establish compensability for non-traumatic injuries occurring at the job site.  Going one step further, in the seminal Supreme Court case of Krawchuk v. PECO, 439 A.2d 627 (Pa.1981), this concept of  “non-accidental” compensability was extended to an injury that clearly manifested itself away from the job site.  In Krawchuk, the Claimant, decedent’s widow, alleged that her husband’s fatal heart attack, which occurred at home was caused by unusually stressful activities at his job as an electrical engineer. Before the Workers’ Compensation Judge, the Claimant introduced evidence that her husband had been subjected to additional stress and strain based on his involvement in a special project at work and preparation of material for a treatise which he was to deliver at a business meeting a few days later. The evidence also established that the decedent was actually working on the treatise at home just a few hours before the onset of his heart attack. Id. at 629. In addition, the Claimant’s medical expert opined that there was a causal relationship between the stressful events at work and decedent’s resulting death from the ensuing heart attack. Id.

The Worker’s Compensation Judge granted fatal claim benefits, finding that decedent’s prior condition was aggravated by the unusual strain and exertion of his special project and the additional burden of working at home in preparing and delivering the treatise.  On appeal, the Workers’ Compensation Appeal Board reversed. The Commonwealth Court, in turn affirmed the Board’s decision. Both the Board and the Commonwealth Court relied on the fact that the heart attack occurred off the employer’s premises at the decedent’s home.

Because of the off premises nature of the injury, the Board and Commonwealth Court held that  in order to prove that the injury arose in the course of employment and was related thereto, the Claimant was required to prove not only that the injury was related medically, but that her husband was actually engaged in the furtherance of his employer’s business or affairs at the time of the injury, as required by section 301(c)(1).  Since no evidence was introduced establishing that the work at home was done at the express or implied request of the employer, the Board and Commonwealth Court held that the injury did not occur in the course of employment. Id. (The pertinent part of section 301(c)(1) on which the Board and Commonwealth Court relied indicates that an injury occurring while furthering the employer’s business, regardless of the location of the injury, will be considered as “arising in the course of employment” for purposes of establishing compensability).

The Pennsylvania Supreme Court reversed the Commonwealth Court’s decision and reinstated the Judge’s award of benefits. In doing so, the Court rejected the lower court’s interpretation of section 301(c)(1), stating that the Act makes no distinction between injuries that manifest themselves on the employer’s premise and those that manifest themselves away from the work site.  Rather, the Court reasoned that the language of section 301(c)(1) indicates that off premises injuries sustained while actually engaged in the furtherance of the employer’s business are compensable. However, this should not be interpreted to create a separate category excluding all off premises injuries sustained while not specifically furthering the employer’s interests. Id. at 631.

Moreover, the Court recognized that the added “requirement” imposed by the lower tribunals failed to appreciate the nature of a heart attack. The Court observed that a heart attack often occurs gradually wherein the pressures and stresses of the job continue to mount incrementally until at some point the heart reaches its limits and the attack manifests itself.

The Court held that the location of the manifestation of the injury should only be one of several factors for a Judge to consider in determining whether the injury arose in the course of employment and was related thereto. Id. at 631-632. In the typical workers’ compensation case, the “related to” requirement is interpreted to require proof of medical causation. See, Weaver v. Workmen’s Compensation Appeal Board (Pennsylvania Power Co.), 487 A.2d 116 (Pa. Cmwlth.1985); Kitchen v. Workmen’s Compensation Appeal Board (Mesta Mach. Co.), 458 A.2d 631 (Pa. Cmwlth.1983). Id. at 631-632.

Of further significance is the Court’s analysis of the statutory language referring to “arising in the course of employment.” In the Court’s view, denying compensation for injuries caused by work which manifest themselves outside of work would do violence to the legislative intent, since the language of the Act merely requires that the injury “arise” or begin at work, not that it be manifested or completed at work. Id. at 632, citing 1A Larson, Workmen’s Compensation Law § 29.22 at 5-378-79 (1978).

On the other hand, the Supreme Court also stopped short of holding that the location of the manifestation of the injury is always irrelevant, citing as an example a heart attack that occurs several months into an employee’s leave of absence as a case where location acquires greater significance. Id. at 632, note 2. Thus, the Court seemed to be inviting a case by case approach for analyzing whether an off premises injury fits within the “arising in the course of employment” language of the Act.

Nevertheless, in the wake of Krawchuk, subsequent appellate decisions involving off premises heart attacks followed the Supreme Court’s holding that a claimant must merely prove that 1) the injury arose during the course of employment and 2) was related thereto. Little consideration was given to the location of the manifestation of the injury as a factor in determining compensability. Rizzo v. Workmen’s Compensation Appeal Board (Pittsburgh Board of Education), 450 A.2d 291 (Pa. Cmwlth.1982); Haverford Township v. Workmen’s Compensation Appeal Board (Angstadt), 545 A.2d 971 (Pa. Cmwlth. 1988).

Similarly, the removal of the “accident” requirement opened the door for other types of injury claims which resulted from gradual, as opposed to sudden, work stresses to be recognized as compensable, most notably, repetitive or cumulative trauma injuries. See, Firestone Tire & Rubber Co. v. Workmen’s Compensation Appeal Board, 396 A.2d 902 (Pa.Cmwlth.1979); Oakes v. Workmen’s Compensation Appeal Board (Woolrich Woolen Mills), 445 A.2d 838 (Pa. Cmwlth.1982).

As a result, in the twenty years following Krawchuk, the emphasis in establishing compensability appeared to shift to focusing solely on the “related thereto” requirement, meaning simply establishing medical causation between the employment and the injury. From a practical standpoint, if a worker’s compensation claimant could simply prove that his or her injury was medically caused by employment activities, there was no need to establish that the injury arose out of the course of employment. It was presumed that proof of medical causation also meant the injury arose from the course of employment. See D.Torrey & A. Greenberg, Pennsylvania Workers’ Compensation: Law & Practice, § 4:4 (West 2d ed. 2002).

Although the precedential value of the Supreme Court’s decision in Krawchuk was weakened in subsequent appellate decisions, as in the Supreme Court’s per curiam order in Erie Bolt Corporation v. Workers’ Compensation Appeal Board (Elderkin), 753 A.2d 1289 (Pa. 2000),  (Reversing an award of benefits in a case factually similar to Krawchuk), a review of the Commonwealth Court’s decision in Erie Bolt, is also necessary to understand the effect of the Supreme Court’s per curiam opinion, see Erie Bolt v. Workers’ Compensation Appeal Board (Elderkin), 777 A.2d 1169 (Pa. Cmwlth. 1998); see also Farmery v.Workers’ Compensation Appeal Board ( City of Philadelphia ), 776 A.2d 349 (Pa. Cmwlth. 2001).

These later cases did not directly challenge Krawchuk’s relaxation of the “arising in the course of employment” prong of the two pronged test for compensability. To the extent Erie Bolt and Farmery reach opposite results from Krawchuk, these decisions appear to be premised on the Supreme Court’s enunciation of a higher burden of proof for physical injuries, including heart attacks, which are caused by mental stress from the job. See Davis v. Workers’ Compensation Appeal Board (Swarthmore Borough), 751 A.2d 168 (Pa. 2000).

Thus, well into the second millennium, in the typical workers’ compensation case, proof of the “related thereto” component of the two-pronged test by way of medical causation evidence continued to be sufficient to establish compensability, without regard for whether the injury actually arose in the course of employment.

The Acme Markets Decision

Suddenly, in 2003, the Commonwealth Court seemingly swept aside twenty years of case law, statutory interpretation and accepted practice with one decision, Acme Markets, Inc. v. Workers’ Compensation Appeal Board (Purcell). 819 A.2d 143, petition for reargument denied ( Pa. Cmwlth. 2003).

The facts in Acme Markets were fairly straightforward.  The Claimant, a produce clerk, had job duties which included unloading merchandise from trucks and stocking merchandise on the store’s shelves. Before the Judge, the Claimant testified that for over 20 years, his job required heavy repetitive lifting and twisting, and that he had previously suffered low back injuries while working for the Employer, each resulting in four to six weeks of disability. Notwithstanding the fact that he returned to work following these injuries, Claimant continued to experience residual symptoms and took Advil every other day in the year prior to the injury. The injury ultimately manifested itself while at home when the Claimant experienced a severe, sharp pain in his lower back when he got up from the floor after assembling a filing cabinet for his wife. He was ultimately diagnosed with a lumbar disc herniation, required surgery and was disabled for approximately nine months. Id. at 144-145.

The Claimant presented testimony from his treating physician who provided the requisite medical opinion that the primary cause of Claimant’s back injury was his repetitive work activity. The Judge accepted the testimony of the Claimant’s expert, finding him credible and specifically rejected the testimony of the Employer’s medical expert, who opined that the single episode of getting up from the floor at home was the cause of Claimant’s injury. Id. at 144-145. The Workers’ Compensation Appeal Board affirmed the award. Clearly, medical causation alone was sufficient to sustain an award of benefits for both the Judge and the Board.

On appeal, the Employer argued that the Claimant’s back injury did not occur in the course of his employment and was therefore not work-related. The Commonwealth Court’s opinion, authored by Judge Pellegrini, referred to the “arising in the course of employment” language of section 301(c)(1). The Court found it significant that no evidence was presented that Claimant was doing anything to further his Employer’s business when he was injured, given his admission that the culminating event occurred after sitting on his floor at home. Id. at 147.

The Court also observed that there was no case law supporting Claimant’s contention that medical evidence of a causal relationship between his off premises injury and his work activities would be sufficient to justify an award. Id. In reaching this conclusion, the Court specifically recognized Krawchuk and the subsequent off premises heart attack cases that followed Krawchuk’s holding. However, the Court distinguished the prior heart attack cases on the grounds that in those cases, it was either proven that the claimant was furthering the employer’s business or there was some stress and pressure immediately prior to coming home or the stress at work day-to-day was excessive. Here, the Court ruled that the Claimant was not furthering the Employer’s business and there was no ”precipitating factor” causing Claimant’s back injury, therefore the claim was not compensable. Id. at147-148, note 5.

It is apparent from the Court’s opinion that it was concerned about the expansion of work- related injuries to include injuries resulting from purely personal activities away from the workplace:

[if medical causation were enough], an employee could allege a work-related injury suffered at home while pursuing personal activities if he had a resulting injury even remotely similar to a previously documented ailment that occurred while at work.  That is not what the legislature intended when it required that the employee actually be engaged in the furtherance of the employer’s business or affairs when injured while either on or off the premises, or, if not engaged in the furtherance of business, that the employee be on the employer’s premises when injured. Id. at 147-148.

By requiring not only proof of medical causation but also evidence of either employment related activities or an immediately precipitating work event for off premises injuries, the Commonwealth Court appears to be reintroducing the unusual strain doctrine into the compensability analysis, a concept which had long since been abandoned after the 1972 amendments and the Krawchuk decision.   If that is the case, perhaps the criticism of the Court’s holding by one noted author is justified. See Torrey, Pennsylvania Bar Association Workers’ Compensation Law Section Newsletter, Vol. VII, No. 74, pp.7-8,  April-May 2003.

On the other hand, Krawchuk’s rejection of an interpretation of section 301(c)(1) which would create a dichotomy between injuries which manifest themselves on the employer’s premises and those which manifest themselves off the premises is itself based on a questionable reading of the applicable provision. In Krawchuk, the Court relied on the fact that the inclusion of off premises injuries when the employee is acting in the furtherance of the employer’s business does not necessarily presume the existence of a separate classification excluding all off premises injuries when the employee is not furthering his employer’s business. Krawchuk, supra at 631-632.

However, the statutory language is susceptible to an alternative interpretation: When put together to give full effect, the relevant provision reads: “The term ‘injury arising in the course of his employment’ as used in this article…shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere…” Section 301(c)(1)(emphasis supplied). The “all other” referring, in this instance, to injuries other than those caused by third persons for personal reasons.

Thus, contrary to the Supreme Court’s interpretation, it is certainly reasonable to argue that by use of the terms “all other,” the legislature in fact intended to create an additional category for all off premises injuries, and in the process, resurrect the requirement that such injuries be sustained while the employee was furthering the employer’s business. It would also seem that the Supreme Court’s reliance on Professor Larson’s distinction between an injury which “arises” in the course of employment and one which “manifests” itself in the course of employment is questionable: Webster’s Dictionary defines “arises” as “to come into being.”

Similarly, Webster’s defines “manifest” as “to make clear or evident; show plainly; reveal; evince.”Indeed, if “all injuries,” which occur off premises while in the furtherance of the employer’s business are compensable, does it not equally follow by the simple process of exclusion from that definition, that “all other” injuries which occur when the employee is engaged in activity unrelated to the employer’s business, off premises, are not compensable?

The difficulty however, with applying such an “all or nothing” approach is best illustrated by the example cited in Krawchuk of a worker who, during the workday has metal shavings lodged in his hair while performing his job. After leaving work, one of the metal shavings becomes dislodged, falls into the worker’s eye, causing injury.  Under a strict reading of the Act, such worker would be barred from compensation because the injury occurred off premises and he was not furthering his employer’s business at the time. Krawchuk, supra at 631, (citation omitted).

Claimants’ bar would of course, argue that such a strict reading would be in conflict with the general mandate that the Act be liberally construed to effectuate its humanitarian purpose.

On the other hand, if proof of medical causation alone is sufficient to satisfy both the requirement that the injury arose during the course of employment and that is related thereto, one must question the necessity of a two pronged requirement to establish work relatedness in the first place. Indeed such an approach is equally unsatisfactory because it makes the “arising during the course of employment” language superfluous, a result which would also be repugnant to the rules of statutory construction. 1 Pa. C.S.A. § 1921(a); Keystone Aerial Surveys, Inc. v. Pennsylvania Property & Cas. Ins. Guar. Ass’n, 777 A.2d 84, Super. 2001, reargument denied, appeal granted 796 A.2d 983, 568 Pa. 701.

To ameliorate the potentially unsatisfactory result of an “all or nothing” interpretation of the statute, both Krawchuk and Acme Markets recognize there may be particular factual circumstances that may change the analysis. It is possible to reconcile the holding in Acme Markets with Krawchuk, especially if one recalls the Supreme Court’s discussion in Krawchuk about injuries that are temporally remote from employment activities. In those cases, the Court clearly assigns greater weight to the location of the manifestation of the injury. In Acme Markets, as the Commonwealth Court noted, there was no immediately preceding precipitating event at work and the at home injury manifested itself some four years after the last of Claimant’s prior work injuries. Acme Markets, Inc., supra at 144-145.

Thus, it is consistent with the Krawchuk analysis, given the lack of proximity to potentially injurious employment activity, that the Commonwealth Court in Acme Markets simply placed greater weight on the location of the injury. It is submitted that such an interpretation permits a case by case evaluation of off premises injury claims and allows greater flexibility for the trier of fact to either grant or deny compensation depending on the circumstances of the particular case.

Conclusion

Despite the denial of Claimant’s request for reargument en banc and the lack of further appeal to the Supreme Court, the precedential value of the Acme Markets decision remains questionable. This much is clear: In the context of injuries which manifest themselves away from the job site, workers’ compensation practitioners should assume that the “arising in the course of employment” requirement for establishing a work-related injury is alive and well. Claimants’ counsel should not content themselves with having established a medical connection between the injury and employment. For the defense practitioner, careful questioning of the claimant, particularly as to his or her location at the time the disabling symptoms first occurred and their temporal relationship to employment activities, may yield an additional defense, which for the most part, had been overlooked for the past two decades.

James A. Tinnyo is an associate in the Employment Law Section of Thomas, Thomas & Hafer, LLP at the Harrisburg Office.  Mr. Tinnyo concentrates his practice in the area of workers’ compensation litigation and is an active member of the Pennsylvania and Dauphin County Bars. He is a 1985 graduate of The George Washington University National Law Center.