Significant Pennsylvania Case Summaries
CLAIMANT NOT IN THE COURSE OF EMPLOYMENT WHILE
ON BREAK AND OFF THE EMPLOYER’S PREMISES
In Dept. of Labor and Industry v. W.C.A.B. (Savani), No. 1263 C.D. 2008 (Pa. Cmwlth. March 10, 2009), claimant fell and was injured while on a personal work break off the employer’s premises. Claimant contended she was acting in the course and scope of her employment and/or in furtherance of the employer’s business affairs. The parties stipulated that she was walking in the industrial park where the employer’s business was located, but not on the employer’s own property; that claimant was on a paid break; and that she was not on a “special mission” for the employer
The WCJ found that claimant was in the course and scope of her employment, characterizing claimant’s actions as an interval of leisure and/or a temporary departure in order to attend to personal comforts which did not break the continuity of hercourse of employment. The Board affirmed, following the WCJ’s reasoning that the activity of walking on her paid break allowed claimant to administer to her personal comfort, which in turn, better enabled her to perform her job.
Commonwealth Court rejected these arguments. The Court specifically pointed to the distinctions between “traveling employees” and a “stationary employees”, with the narrower interpretation of course of employment being applied to the stationary employee. Because claimant was a stationary employee the test was whether claimant left the premises for purely personal reasons or for reasons related to the duties she was required to perform. Here, claimant was not ordered or directed to walk around the industrial park, off the employer’s premises while on her paid break. The Court held that claimant’s injury did not occur during a small departure from work to tend to her personal comforts or convenience, and it did not occur because of an inconsequential or innocent departure from work. Rather, claimant was injured while walking on a street off the employer’s premises and she was not directed to do so by the employer, therefore, she was not acting in the course of employment at the time.
Practice Tip: “Off premises” injuries require a claimant to prove that he or she is actually furthering the business or affairs of the employer; the presumption that a claimant is in the course of employment only applies to “on premises” injuries.
LABOR MARKET SURVEY: EMPLOYER ACTED IN “GOOD FAITH” BY CONDUCTING SURVEY IN PENNSYLVANIA RATHER THAN IN SOUTH CAROLINA WHERE EMPLOYEE CHOSE TO RESIDE
In Rebeor v. Workers’ Compensation Appeal Board, decided July 9, 2009, Commonwealth Court handed claimant a set back in his attempt to avoid modification based on a labor market survey. Claimant had advised his employer of is intent to relocate to South Carolina (he the followed through and did in fact relocate). However, employer instituted vocational efforts based on a labor market survey which targeted only jobs available in the area where claimant had resided in Pennsylvania. The vocational expert testified that she made no attempts to locate work in South Carolina. The WCJ granted the petition, the Board affirmed, as did Commonwealth Court.
The court held that employer did not act “in bad faith” by searching for jobs only in Pennsylvania—knowing full well that claimant could not take jobs there due to his relocation. The Board had pointed to provisions of the Act permitting a labor market survey to be based upon jobs available in either of three locales: where the claimant did reside in Pennsylvania; or the area where the injury occurred, or the area where the claimant currently resides. However, the Court did not need to decide if all three were appropriate, since the area where the injury occurred and was the same as where he had resided. Instead, it ruled that the area where the injury occurred was the appropriate venue for the labor market survey, not the state where claimant relocated. By following the specific language of the Act, the employer did not act in ‘bad faith’.
Practice Tip: Prior to the amendments to the Act, only jobs located where a claimant “currently” resided were considered acceptable; however, the amended Act appears to require that labor market surveys must be based on jobs in the area of the claimant’s residence (if resident in Pennsylvania) or in the “area where the injury occurred” if not a resident. This raises serious questions as to whether trying to find jobs in the area of current residence (if out of state) would be appropriate at all.
COMPROMISE AND RELEASE: HEALTH CARE PROVIDER’S LIEN
MUST BE REIMBURSED IF SUFFICIENTLY “PROVEN”
Deciding an issue that has caused considerable confusion, Commonwealth Court in Lusby v. Workers’ Compensation Appeal Board (Fischler Co. & Sparmon, Inc.) (July 9, 2009), ruled that a health care insurer’s lien was not extinguished by a compromise and release agreement when the carrier was fully aware of the asserted lien and the lien comprised payment for what were otherwise “compensable” medical expenses. Accordingly, the workers’ compensation insurer was required to reimburse the lien despite lack of mention of the lien in the agreement.
The facts showed that the carrier was on notice of the lien; that the C&R agreement specifically included language that the comp carrier would “remain liable for any medical expenses incurred or outstanding or incurred up to date of hearing”; that the “no lien” block was checked off on the agreement; but that there was a fee agreement submitted (and referenced in the agreement) that claimant’s counsel had a 20% fee agreement with the health insurer.
An order was issued approving the C&R, which was then amended to specifically state that the carrier was directed to issue payment of benefits referenced in the agreement, “inclusive of reimbursement of the Highmark lien…” Neither party appealed, and when payment was not made a penalty petition was filed. Carrier defended on the basis that it made payment directly to the providers—which may in fact have duplicated payments by Highmark—and that it was not aware of the precise payments made by Highmark, and so it was claimant’s burden to seek reimbursement to Highmark from the providers who received “duplicate” payments.
The WCJ granted the penalty petition, but the Board reversed, holding that since the actual lien itself was never submitted into evidence (and hence the specific amounts were not set forth) at the time of the hearing; and since the “no lien” block was checked off, the WCJ erred. Commonwealth Court reversed, reinstating the penalty award.
In so doing it pointed to evidence that the adjuster had received a letter from claimant’s counsel with the actual lien amounts, his fee agreement with Highmark, and specifically requested that the adjuster, when preparing the C&R agreement “include the lien and our 20% fee agreement” in it. Thus, the court held the health insurer sufficiently “established” its lien in the C&R proceedings.
Practice tip: When settling a case on a C&R basis, if the carrier is on specific notice of both the fact and amount of a health care carrier’s lien and chooses to ignore it; but agrees in the C&R to pay for “causally related medical expenses”, it may end up binding itself to reimbursing the lien, even if it is not submitted as part of the C&R proceedings. Additionally, payment “directly” to the providers will not cure the situation, and the carrier who does so may end up paying double for agreed medical expenses.
REFUSAL TO UNDERGO “DETOX” MAY BE GROUNDS FOR SUSPENSION OF BENEFITS
In the case of Bereznicki v. Eat ‘N Park Hospitality Group, 24 PAWCLR 103 (2009), the Appeal Board upheld a WCJ’s order suspending benefits based, determining that claimant’s refusal to undergo drug detoxification amounted to “refusal of reasonable medical care”. This, despite the fact that the testifying medical expert said that the even if claimant underwent detoxification it would not necessarily enable a return to work.
Practice Tip: Expansion of the “refusal of reasonable medical treatment” doctrine as basis for suspension provides a powerful tool to both “encourage” a claimant to undergo needed treatment, and to curb costs when claimant refuses to do so.