COMMONWEALTH COURT OF PENNSYLVANIA CASE SUMMARIES
INJURIES SUSTAINED DURING WORK RELEASE NOT COMPENSABLE FOR WAGE LOSS
Woodley vs. WCAB (JP Mascaro), 62 C.D. 2011, Commonwealth Court of Pennsylvania
In a memorandum opinion, the Commonwealth of Pennsylvania holds that although claimant had sustained his burden of proving he suffered a work related injury, claimant was not entitled to benefits because of §306 (A.1), which provides that “nothing in this section shall require payment of compensation for any period during which the employee is incarcerated after a conviction.”
On September 13, 2008, claimant, who was on a work release, was working for employer, JP Mascaro. Claimant sustained a significant laceration on his right leg while lifting a trash can. The claimant required immediate medical attention, needing stitches and medication. Due to his injury, claimant was then removed from the work release program, and was later released from incarceration on November 7, 2008.
The claimant then filed a Claim Petition where the Judge accepted claimant’s testimony as credible and found that claimant had sustained a work related injury, although the Judge declined to award any benefits pursuant to §306 (A.1) determining that the work release program constitutes incarceration for purposes of Workers’ Compensation benefits. On appeal, the Board affirmed and claimant appealed to the Commonwealth Court. At the Commonwealth Court, the claimant argued that the Judge and the Board both erred because there was no proof in the record that claimant was incarcerated after a conviction. The claimant argued there was no dockets submitted, no testimony from claimant, and no testimony or evidence from the employer as to the conviction. Claimant argued that mere evidence that the claimant was incarcerated was insufficient to establish the claimant was incarcerated after a conviction and therefore ineligible for Workers’ Compensation benefits.
The Commonwealth Court holds that because work release is a sentence under the relevant criminal statute, it necessarily follows a conviction. Since this is the case, there should be no question by virtue of claimant’s participation in the work release program that the claimant was in fact incarcerated after a conviction. The Woodley case stands for the proposition that an injury sustained during a work release program is not be compensable as it is after a conviction.
SUPERIOR COURT DECLINES TO APPLY DUAL CAPACITY DOCTRINE HOLDING THAT THE WORKERS’ COMPENSATION ACT IS THE EXCLUSIVE REMEDY
Roque Soto vs. Nabisco, Inc., et al., 1306 E.D.A 2011, Superior Court
The plaintiff/claimant, Soto, started employment with Nabisco at its Philadelphia bakery in 1999. Thereafter, in July, 2001, Nabisco merged into Kraft, and ceased to exist as a separate company. On November 1, 2007 Soto sustained a significant injury to his arm and hand while operating a Ritz cracker cutting machine. It was undisputed that the accident occurred in the course and scope of employment, and the injuries resulted in amputation of the left arm, and a degloving and avulsion injury to the right hand.
In 2009, Soto filed a lawsuit in Common Pleas naming both Nabisco, and Kraft alleging both negligence and strict liability theories. Kraft filed Preliminary Objections, which were granted. On appeal to the Superior Court, the Superior Court affirms, rejecting claimant’s “dual capacity” argument.
Appellant alleged that Kraft held a dual capacity as his employer, and secondarily, as a successor in interest to Nabisco, the manufacturer of the defective machine that allegedly caused Soto’s injuries. The Dual Capacity Doctrine is defined as an employer who would be normally shielded from tort liablity by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers obligations independent of those imposed on him as an employer. Callender v. Good Year, 564 A.2d 180 (Pa. Superior 1989).
Also, the Superior Court reviews the case in terms of the controlling precedent, Tatrai v. Presbyterian Hospital, 497 Pa. 247, 439A.2d 1162 (Pa. 1982). In Tatrai, a hospital employee who became ill at work, was sent to the emergency room at Presbyterian Hospital. At the emergency room, the employee was injured after the foot stand on the examining table where he was seated broke loose and fell to the floor. The Supreme Court holds that the employee, at the time of the injury in the emergency room, was in the same position as any other member of the public receiving medical treatment because the emergency room was open to the general public. The Court held that the hospital owed the employee the same duty it owed the general members of the public who came to the hospital for medical care. Thus, the hospital was found to be not immune pursuant to the Workers’ Compensation law from suit for injuries sustained in the emergency room.
The Superior Court distinguishes Tatrai by reasoning that Soto became an employee of Kraft after Nabisco and Kraft merged in 2001. After the merger, Soto continued to work in the same bakery where he had worked for Nabisco doing the same job. The only thing that changed for Soto was that his paycheck came from Kraft instead of Nabisco. The Ritz cracker cutting machine was equipment Nabisco had manufactured especially for cutting Ritz crackers, and it was transferred to Kraft at the time of the merger. The cutting machine used solely by Kraft employees and was not available to the public at large. At no time was the cutting machine sold to an outside company or put in the stream of commerce. The Superior Court then declined to extend the Dual Capacity Doctrine finding that if Nabisco (the original employer) had no third party liability beyond Workers’ Compensation, then Kraft as its successor should have no third party liability under the circumstances of the case.
MARYLAND CASE SUMMARIES
Loss of Ability to Work Overtime Entitles Claimant to Temporary Partial Disability
Montgomery County, Maryland v. Kenneth Deibler, No. 120, 2011 Md. LEXIS 664 (Oct. 27, 2011).
In this case, the Court of Appeals held that loss of the ability to work overtime, and its associated loss in overtime pay, qualifies as a lessening of an employee’s wage earning capacity under § 9-615 of the Labor and Employment Article.
Appellee firefighter injured his knee twice in work-related accidents, forcing him from his regular duties as a firefighter into a reduced working role. After each injury, Appellee was unable to work his standard 15-20 hours of overtime per week, resulting in a loss of about 700 dollars a week for the 20 weeks following the first injury, and 22 weeks following the second injury. Appellee filed claims with the Worker’s Compensation Commission for each injury, and was award temporary partial disability for the periods he worked light duty after each injury. Appellant Montgomery County filed a petition for review in Montgomery County Circuit Court, arguing that Appellee’s base pay was the same as it was before the injuries and, therefore, could not fulfill the requirement of § 9-615(a)(1), that an employee’s wage earning capacity be “less” than the employee’s pre-disability wage earning capacity. The court disagreed, finding that overtime compensation was an integral part of compensation for much of the workforce, including Appellee, and was part of Appellee’s wage earning capacity.
Before argument was held in the Court of Special Appeals, the Court of Appeals issued a writ of certiorari to consider whether “wage earning capacity” in § 9-615 includes the capacity to earn overtime compensation so that the Commission may include such compensation in the determination of whether an employee’s wage earning capacity is “less” while temporarily, partially disabled. In finding that overtime compensation can be fairly characterized as a wage, the court looked to the definition of wage in the Labor and Employment Article, concluding that under each statutory definition, “wage” denotes all types of compensation that an employee could receive for employment, and therefore the legislative intent was that “wage” in § 9-615 be given the same meaning the legislature gave it in the rest of the article. Additionally, the court reasoned that this definition comports with the common understanding of “wage,” as well as conforming to the statute’s purpose of protecting workers from hardships. Thus, “wage,” as used in “wage earning capacity” in § 9-615(a) includes compensation for overtime hours worked prior to temporary partial disability.
Receipt of Workers’ Compensation Did Not Bar Suit Against Co-Employee, and Did Not Bar County Board of Education’s Contractual Duty to Indemnify Co-Employee For Judgment
Board of Edu. Of Prince George’s County v. Stephanie Lynn Marks-Sloan, No 1447, 2011 Md. App. LEXIS 151 (Oct. 28, 2011).
In this case the Court of Special Appeals held that while the recipient of a worker’s compensation award could not bring a negligence suit directly against her employer, she could bring suit against a co-employee of the County Board of Education, and the exclusivity of the workers’ compensation remedy did not prevent a contractual obligation to indemnify the co-employee.
The Appellee was driving her motorcycle when she was forced off the road by a bus driver, causing injuries to the appellee. The bus driver and the Appellee were co-employees, both employed by the Board of Education of Prince George’s County. The Appellee sought compensation from the Worker’s Compensation Commission, and was awarded medical expenses, temporary total disability, and attorneys fees. Appellee filed a suit against the bus driver and the Board, alleging that the Board was vicariously liable for the bus driver’s negligence. The circuit court granted the Board’s motion for summary judgment based on its statutory immunity, but required the Board to remain a party to the litigation for the purposes of potential indemnification. After a series of motions, the court entered a final order providing that judgment was entered against the Board and the bus driver for $100,000, and that the bus driver was dismissed from the action. On appeal, Appellant argued that the circuit court erred in not granting summary judgment because the bus driver enjoyed statutory immunity from suit, and the Board was not liable because workers’ compensation was the exclusive remedy.
In holding that the Board was required to indemnify the bus driver, the Court of Special Appeals had to interpreted two provisions of the Local Government Claims Act (Md. Code Ann., Cts. & Jud. Proc. § 5-302 and § 5-303). Under these statutes, the court reasoned, Appellee could not bring a suit in negligence directly against the board because she had received a workers’ compensation aware, but there was nothing to prevent her from bringing suit against the bus driver. This is because the exclusivity of the workers’ compensation remedy does not prevent a contractual obligation to indemnify. The court noted that while under the Maryland Workers’ Compensation Act an employee may not sue a fellow employee for tortious acts or omissions committed within the scope of employment if the injury is compensable, there is no similar provision applicable to County Boards of Education; nor was the legislature required to provide one. Thus, the Board of Education was required to indemnify the bus driver, even though it was also responsible for workers’ compensation coverage.
Assault By A Third Party Not Compensable Where Occurred Off-Premises and Did Not Occur In Course of Employment
Doe v. Buccini Pollin Group, Inc., 29 A.3d 999,2011 Md. App. LEXIS 140 (October 3, 2011).
In this case, the Maryland Court of Special Appeals considered whether an injury was “accidental” and “directed [against the employee] in the course of” his employment under Md. Code Ann., Lab. & Empl. §9-101(b). The employee, a banquet houseman at a hotel, was setting up tables in the banquet hall at the hotel, when he became involved in a dispute with a female coworker. The coworker became enraged and, while still working, called a friend to “come take care of” the employee.
Alerted to the fight, the employee’s supervisor told the employee to check out because his shift was almost over. The employee checked out, changed into street clothes, got in his car, and drove away. The coworker followed the employee in her own car, until the employee stopped, thirteen miles away from the hotel, to drop off a friend. The co-worker’s friend arrived while the employee was stopped. The friend shot the employee, leaving him a paraplegic.
The employee filed a claim for workers’ compensation benefits, and was awarded temporary total disability benefits and medical expenses. After the employer petitioned for judicial review, the circuit court reversed the award, determining that the employee’s injuries were not covered by the Workers’ Compensation Act.
The Court of Special Appeals affirmed the ruling of the circuit court, finding that the injuries were not accidental because they were not directed at him in the course of employment as required by the Act. The court reasoned that the “going and coming rule,” which generally makes injuries suffered by an employee traveling to or from work not compensable under the act, applied in this case. The “proximity” exception to this rule could not apply because, although the original altercation occurred at work, the shooting by the friend occurred later and was not within a range of dangers particularly associated with the employee’s job as a banquet houseman. Additionally, there was nothing about the nature of the employee’s work to justify an award based on a delayed injury. Thus, the employee’s injury was not compensable because it did not occur in the course of employment, rather, the time, place, and circumstances of the injury in relation to his work indicate that the shooting was not in the range of dangers associated with his employment, especially in light of the coming and going rule.