eNotes: Workers’ Compensation – February 2022 – Pennsylvania
February 21, 2022
SIGNIFICANT CASE SUMMARIES
PA CASE SUMMARIES
Jamey Kamp v. Green Acres Contracting Co. (WCAB)
Commonwealth Court of Pennsylvania
No. 1275 C.D. 2020
Decided: January 21, 2022
An employee who tripped and fell while on her way to purchase breakfast in a common area food court prior to the start of her shift was found to be injured in the course and scope of employment.
The claimant sustained a work injury on April 21, 2016 after being struck by a motor vehicle. The employer accepted the injury, and the parties resolved the specific loss portion of the claim for $80,000.00. The third-party tortfeasor responsible for the accident held two insurance policies with a combined $150,000 liability limit. Claimant received the policy limits as payment for damages, and filed a Review Petition seeking to limit the employer’s subrogation interest in the third-party proceeds. The employer’s proposed third-party settlement agreement (TPSA) allocated Claimant’s entire third party recovery to the lien.
Claimant’s proposed TPSA recommended a distribution limiting the employer’s subrogation interest to the proportion of the actual lien to the claimant’s actual damages, which were nearly $2 million.
Claimant’s proposed TPSA would have resulted in a net compensation lien of about $17,000.00, even though the accrued lien amount exceeded $300,000. Claimant challenged Section 319 of the Act as unconstitutional under Article I, Section 1 and Article III, Section 18 of the Pennsylvania Constitution, which generally protect property rights and prohibit the legislature from passing laws limiting the amount to be recovered in personal injury cases. The WCJ did not address the constitutional arguments, and the Board affirmed.
The Court unanimously affirmed. The Court noted that Section 319 clearly and unambiguously states that “the employer shall be subrogated to the right of the employee,” with no exceptions. Curiously, the claimant argued that the subrogation was unconstitutional because it worked “too well” as it granted an “unfettered” right to subrogation, regardless of the relationship between the damages awarded and the benefits paid. The Court rejected this argument, explaining that the right of subrogation is intended to shift the financial burden of an employee’s work injury from an innocent employer to a negligent tortfeasor.
Finally, the insurance policy, and not the legislature, limited the amount the claimant could recover from the negligent third party. The Act merely granted the employer the right to subrogate the claimant’s recovery to the extent it paid benefits under the Act. Therefore, the Court upheld the absolute right of subrogation, and held that this provision was rationally related to a legitimate state interest.
In a resounding unanimous opinion, the Commonwealth Court has affirmed the absolute right of employers to subrogation against any damages recovered against a third party for the injury giving rise to the workers’ compensation claim, and foreclosed the argument that subrogation somehow interferes with a claimant’s constitutional rights simply for working “too well” to allow employers to be reimbursed by a negligent party. Subrogation remains one of the most reliable tools for employers to reduce exposure for a work-related injury.
Any questions regarding this case can be addressed to John T. Morgan, Esquire, at firstname.lastname@example.org or (267) 861-7595.
Henderson v. WCAB (WP Ventures, Inc.)
Commonwealth Court of Pennsylvania
No. 392 C.D. 2021
Decided: January 14, 2022
Under the “personal comfort doctrine,” intervals of leisure within the regular hours of the working day and momentary departures from the work routine do not remove an employee from the course of employment.
Claimant was employed as a custodial worker at a community center located near a public park in Philadelphia. Claimant’s job duties included cleaning, taking out trash, and performing basic maintenance duties. Claimant left his workplace to take a break for a cigarette and to get a sandwich across the street. Claimant slipped and fell on ice in the park, off the Employer’s premises, and sustained a significant head injury. Claimant was unable to return to work due to his injuries, and was ultimately discharged from his job. Employer denied benefits, on grounds that Claimant was not in the course and scope of employment when he slipped and fell, off the Employer’s premises. The Claim Petition was granted at the Judge level, but the grant of the Claim Petition was then reversed by the Workers’ Compensation Appeal Board. Then the Commonwealth Court reversed the Board and reinstated the grant of the Claim Petition, holding that Claimant was in the course of employment when he fell.
Commonwealth Court affirmed, and found that Claimant was in the course of employment while he was taking a cigarette break off of the Employer’s premises. In applying the personal comfort doctrine, the Commonwealth Court analyzed the rule which permits intervals of leisure within regular hours of the working day, and recognizes that momentary departures from the work routine do not remove an employee from the course of employment. Breaks which allow the employee to administer to his personal comfort better enable him to perform the job, and are therefore considered to be in furtherance of the Employer’s business interests.
This case continues the Commonwealth Court’s recent trend of an expansive reading of what constitutes the course and scope of employment. In this case, the Court applies the personal comfort doctrine to find the case compensable, even though the Claimant was not on the Employer’s premises, and not actively furthering the Employer’s business interests while on break.
Any questions regarding this case can be addressed to Paul Pauciulo, Esquire, at email@example.com or (267) 861-7588.
Sadler v. WCAB (Philadelphia Coca-Cola)
Commonwealth Court of Pennsylvania
No. 1294 C.D. 2020
Decided: January 7, 2022
A felony conviction incurred after the workplace accident was not factored into the consideration of Claimant’s job availability. In an unrelated issue, offsets for Social Security benefits were upheld as constitutional.
After Claimant was awarded TTD benefits, the employer filed a Termination Petition, and later a Modification Petition. The employer indicated it would seek an offset due to claimant’s receipt of Social Security old age benefits. Claimant filed a Petition to Review arguing that Section 204(a), the section which provided for the offset, was unconstitutional. In a separate issue, the parties disputed whether the Court should consider the Claimant’s post-injury felony conviction when judging whether a position was available for the Claimant. The WCJ found that the Social Security benefit was constitutional and therefore that the employer properly took the offset, and also found that the Employer should not be “hindered” by Claimant’s subsequent behavior and conviction, so his felon status should not be considered. The WCAB agreed on both accounts.
The Commonwealth Court affirmed on both issues. The Court found that Section 204(a) was constitutional and the offset against old age benefits was validly assessed. The Employer is not responsible for the Social Security benefits of the Claimant, and it is not unconstitutional for that offset to be assessed. Prior case law and public policy align with this decision. On the issue of the felony conviction, the Court agreed that the judge should not consider the Claimant’s conviction, which occurred after the work injury (and therefore was not related to that work injury). Just as physical conditions/injuries which befell a Claimant after a work injury do not factor into job availability, neither does a subsequent felony conviction.
The Court’s reasoning that the prior conviction of the claimant did not need to be considered for purposes of the labor market survey may be considered surprising for some, given that the vocational counselor had testified that this conviction may, in fact, cause some jobs to actually NOT be considered available for the claimant. However, the Court followed prior decisions which held that employers do not have to take into consideration any non-work related factors for purposes of job availability.
Any questions regarding this case can be addressed to Lee Ann Rhodes, Esquire, at firstname.lastname@example.org or (412) 926-1453.
Thomas v. Workers’ Compensation Appeal Board (Trustees of the University of Pennsylvania)
Commonwealth Court of Pennsylvania
No. 730 C.D. 2020 Pa. Commw. Unpub. LEXIS 26
Decided: January 18, 2022
Claimant did not provide notice of her work-related injury to her Employer when she waited more than 120 days after being informed by her treating doctor that the injury was work-related.
On September 19, 2017, Claimant began having severe neck and low back symptoms. She called off work the next day. Her supervisor did not have her fill out an injury form. Claimant did not return to work. Claimant initially began using sick leave, personal time and vacation time. Claimant then took FMLA leave and began receiving short-term disability benefits for 26 weeks which converted to long-term disability benefits. Claimant filed a Claim Petition alleging an aggravation of underlying degenerative disc disease causing cervical and lumbar radiculopathy. The WCJ denied the Claim Petition, finding that Claimant was aware of the work-relatedness of her injury on September 28, 2017, when she was informed by her treating doctor.
The WCAB affirmed the WCJ’s decision, agreeing that Claimant was required to file an incident report or inform the Employer within 120 days of her September 28, 2017, meeting with her treating doctor in which she learned the injury was work-related. Claimant appealed.
The Commonwealth Court affirmed. Per Section 311 of the Act, the notice period is triggered by an employee’s knowledge that she is injured and that her injury is possibly related to her job. Here, the Court found that Claimant was aware that her injury was work-related following her meeting with her treating doctor on September 28, 2017. The Court was not swayed by Claimant’s argument she was unaware that her injury was work-related until February 2018, when another treating doctor agreed that the injury was work-related. The Court noted that Claimant’s own testimony supported the WCJ’s finding that she was aware that the injury was work-related on September 28, 2017. Accordingly, the Court affirmed, as Claimant did not provide notice within 120 of learning that her injury was work-related on September 28, 2017.
The main takeaway is to diligently question a claimant alleging a repetitive injury to determine when she became aware that her injury was work-related, such that the claim can be denied if notice is not provided within 120 days.
Questions about this case can be directed to Joseph J. Shields at email@example.com or (570) 825-7227.