eNotes: Workers’ Compensation – November 2022 – Pennsylvania
November 30, 2022
SIGNIFICANT CASE SUMMARIES
Pennsylvania Case Summaries
IDI Logistics, Inc. v. Larry Clayton and Uninsured Employers Guarantee Fund
Commonwealth Court of Pennsylvania
No. 514 C.D. 2021
Decided: October 18, 2022
Despite signing an independent contractor agreement, Claimant was found to be an employee based upon the right to control. Claimant was not barred from receiving disability benefits under § 531(8), as removing his cast on his own due to a lack of insurance was not a refusal of medical treatment.
Claimant signed a contract identifying him as an independent contractor, but defendant, who did not carry Workers’ Compensation insurance, assigned claimant’s deliveries, provided him with a company truck to use strictly for all company deliveries, paid for gas and truck insurance, and paid claimant per mile. After the injury, defendant verbally allowed claimant to ride as a passenger with other drivers, but did not formally offer light duty work or provide any documentation relating to an offer of light duty work. Claimant eventually removed his cast himself due to not having health insurance.
The defendant in this case appealed the Board’s reversal of the Workers’ Compensation judge’s (“WCJ”) finding that claimant was an independent contractor and not an employee. He further argued that the WCJ erred in finding claimant entitled to disability benefits, citing to 77 Pa. Stat. Ann. § 531(8).
Here, the Court found the claimant to be an employee by weighing the control of the manner in which work was to be done, responsibility for the result, terms of agreement between the parties, the nature of the work, skill required, engagement in a distinct occupation or business, supplying of tools, payment by the time or job, whether work is part of the regular business of the employer, and the right to terminate the employment at any time. A defendant must formally offer light duty work to support an argument that the employee refused a job offer. For purposes of 77 Pa. Stat. Ann. § 531(8), an employer must actually offer to pay for treatment before an employee could be considered to have refused treatment. Here, the defendant failed to show it offered a job or to pay for medical treatment.
The existence of an employment relationship is a question of law that is determined on the unique facts of each case. An independent contractor agreement is not dispositive and can be outweighed by the specific facts of the case, most notably, the defendant’s right to control. An employer who does not formally offer a job or offer to pay for an employee’s treatment will not prevail in arguing that the employee refused work or treatment.
Questions about this case can be directed to Cailey Farinaro at (610) 332-7008 or firstname.lastname@example.org.
Pa. Builders Ass’n v. Dep’t of Labor & Industry
Commonwealth Court of Pennsylvania
No. 479 M.D. 2021
Decided: October 26, 2022
A construction code statute automatically incorporating the most recent edition of codes published by a non-governmental body was held to be unconstitutional under Protz.
In 1999, the Pennsylvania General Assembly enacted the Pennsylvania Construction Code Act (PCCA) to “establish uniform and modern construction standards throughout the Commonwealth.” Under Section 304(a)(3) of the PCCA, the Department of Labor & Industry is directed to promulgated regulations updating accessibility standards by adopting “the accessibility provisions of the most recently published edition of the ICC [International Code Council] codes . . . .” The Pennsylvania Builders Association (PBA) filed a complaint alleging that the PCCA is unconstitutional because it delegated “de facto, unfettered control” over accessibility standards to the ICC in violation of the non-delegation doctrine. Following the close of the pleading stage, the PBA moved for Judgment on the Pleadings.
In a published opinion, the Commonwealth Court granted PBA’s Application for Judgment on the Pleadings, and declared Section 304(a)(3) of the PCCA unconstitutional. The court noted that, as written, Section 304(a)(3) of the PCCA required the department to incorporate subsequent modifications to accessibility standards without also providing adequate criteria to guide and restrain the exercise of the delegated authority. Accordingly, Section 304(a)(3) of the PCCA was an unconstitutional delegation of the General Assembly’s rulemaking authority to a non-governmental entity. Therefore, the court held that Section 304(a)(3) was unconstitutional.
Although ostensibly unrelated to workers’ compensation, the Commonwealth Court repeatedly cited the notorious Protz v. WCAB (Derry Area Sch. Dist.) opinion as support for its decision to declare the PCCA provision unconstitutional. This decision shows the effects of Protz on other legislation, and could be a sign that the Commonwealth Court may soon apply the same reasoning to Section 306(f.1)(10) and Section 109, which incorporate the definition of “life-threatening” and “urgent” injury used by an unspecified version of the American College of Surgeons Triage Guidelines.
Questions about this case can be directed to John T. Morgan at (267) 861-7580 x 8502 or email@example.com.
Woodring v. Unemployment Compensation Board of Review
Commonwealth Court of PA
No. 218 C.D. 2019
Decided: October 4, 2022
Claimant was not entitled to unemployment compensation benefits because he had been discharged for willful misconduct based upon a negative email message sent regarding a recent promotion of a co-worker.
Claimant worked as an IT hardware technician for the House of Representatives Republican Caucus. Claimant was subject to the Employer’s email policy which required employees to use the email system with “common sense, common decency and civility.” The policy also prohibited the transmission on any message for the purpose of intimidating, harassing or abusing others. Claimant sent an email to a fellow employee regarding the hiring of another co-worker as the next HR director. In this email, Claimant questioned the qualifications of this co-worker for the position and accused the Employer of not following its own “rules” regarding this promotion. Claimant was subsequently terminated for violation of the email policy. Claimant filed a claim for UC benefits, which was denied. Claimant appealed to a Referee, and a hearing was held. The Employer did not appear at the hearing, but was represented by counsel. The Referee denied the Claimant’s request for benefits. Claimant appealed to the Board, which affirmed the Referee’s decision.
On appeal, the Claimant argued that because the Employer was absent from the hearing, it could not sustain its burden of proof or authenticate its documentary evidence. Claimant also argued that his email and other correspondence constituted free speech protected by the First Amendment. The Court dismissed Claimant’s argument regarding the Employer’s failure to attend the hearing before the Referee. In dismissing this argument, the Court reviewed case law indicating that, in order to establish willful misconduct, the Employer must prove the existence of the policy, the reasonableness of the policy, and the fact of its violation. The employer’s burden of proof may be carried, in whole or in part, by the claimant’s own testimony. Once willful misconduct is established, the burden of proof shifts to the employee to prove he had good cause for his actions. The Court reviewed the testimony that was given by the Claimant, including his acknowledgement of the existence of the email policy, his admission that he sent the email disparaging the newly hired HR Director and his accusation that the Employer did follow its own rule with respect to this hire. In addition to this testimony, the Employer had also offered into evidence the termination letter that was sent to the Claimant. The Court found that, based upon this substantial evidence, the Board properly found that Claimant had committed willful misconduct and was not eligible for benefits. Interestingly, the Court noted in a footnote that Claimant failed to introduce evidence to prove good cause for his violation of the Employer’s policy as he had suggested that his termination was in retaliation for alleged whistleblower complaints previously made in 2015 and 2016.
The Court also dismissed Claimant’s argument that his email message was protected under the First Amendment. While the Court agreed with the Claimant that he had not waived this argument, as it had been presented to the Board (but was not included in the Claimant’s Petition to Review to the Court), the Court ultimately found that this claim lacked merit. The Court noted prior case law indicating that the denial of unemployment compensation benefits could not be based on an individual’s exercise of First Amendment right absent a compelling state interest. The Court further concluded that Claimant’s speech in this matter did not implicate a matter of public concern as it did not relate to any matter of “political, social or other concerns to the community.” The courts have previously found that speech that related to “mundane employment grievances” do not implicate matters of public concern. The Court concluded that the Claimant’s email message in this case criticized the Employer’s management and expressed his disagreement with the promotion of a coworker, which were “mundane employment grievances” and was not therefore considered protected speech. Interestingly, in another footnote, the Court noted that Claimant wanted the Court to consider that he also pursing relief in federal court, but the Court felt that these federal claims were irrelevant to whether Claimant was eligible for unemployment compensation. According to the footnote, Claimant had provided “little context” and “scant details” regarding this litigation.
The Court’s decision in this case appears to be rather straightforward, in that emails or other communications regarding “mundane employment grievances” will not be considered protected speech, with respect to unemployment compensation matters. As noted above, the Court provided two interesting footnotes which suggest that Claimant may not have offered all of the necessary evidence to support his claims that there were other factors regarding his termination. From the employer’s standpoint, it appears that the Court took specific notice of the policies that were in place at the office and this Claimant’s awareness of the same.
Questions about this case can be directed to Lee Ann Rhodes at (412) 926-1453 or firstname.lastname@example.org.
Lawhorne v. Lutron Electronics Co., Inc.
Commonwealth Court of Pennsylvania
No. 1132 CD 2021
Decided: October 18, 2022.
Claimant sustained a compensable left hand strain. Claimant subsequently filed Petitions to Review, to Reinstate, and for Penalties. The Employer filed a Petition to Terminate, and all petitions were consolidated and heard together by the Judge. The Judge denied and dismissed all petitions, finding the opinion of both claimant and employer medical experts not credible. The Judge denied and dismissed claimant’s petitions, as well as employer’s petitions. As part of this decision, the Judge declined to order reimbursement for a $3800 expert fee for Claimant’s medical expert based on the Court’s rejection of that doctor’s opinion. The Board affirmed the Judge’s Decision, and Claimant appealed to Commonwealth Court.
At Commonwealth Court, the Court held that Section 440 of the PA Workers Compensation Act is mandatory, stating that “the party in whose favor the matter at issue has been finally determined, in whole or in part, shall be awarded a reasonable sum for costs incurred.” The Commonwealth Court further held that such an award of reimbursement of litigation expense under section 440 is mandatory, disagreeing with the Board and the Judge. The remand of the Court is to have the Judge make a determination of the role of the claimant’s expert in the Judge’s decision.
Commonwealth Court then reversed the findings of the Board and the Judge as regard to litigation expense, and remanded the matter to a Judge to determine if the litigation expense at issue, the $3800 deposition fee for Claimant’s expert, is reasonably related to the issue of whether or not Claimant had fully recovered from the work injury, and if so then Order reimbursement under Section 440.
This was a published decision, and it is a troubling one. Even though the witness did nothing to aid the result, the deposition costs were still awardable. Any time a Claimant partially prevails, they are entitled to recoup any costs related thereto.
Any questions regarding this case can be addressed to Paul Pauciulo at (267) 861-7588 or email@example.com.
Berks Area Regional Transportation Authority v. Katzenmoyer (WCAB)
Commonwealth Court of Pennsylvania
No. 1058 C.D. 2021
Decided November 8, 2022
Court finds “abnormal working condition” following two shootings of a BARTA bus within a two-month period.
The Claimant was employed as a bus driver for the Berks Area Regional Transportation Authority (BARTA). On October 19, 2018, the Claimant was driving a bus when she heard and saw gun shots being fired in her rearview mirror. She saw the offender shoot several times behind her bus and later learned that the offender shot and killed the victim. During the altercation, the bus was struck twice by bullets. While the Claimant was upset about what had happened, she continued to work. Two months later in December 2018, there was a second incident involving the Claimant’s bus being struck by bullets, resulting in several windows of the bus being “shot out.”
Following the December incident, the Claimant began to experience symptoms including sensitivity to reflections, lights, sounds, and unexpected events. She later developed nightmares, panic attacks, lack of concentration, fear of being around people, and an extreme startle response. She was eventually diagnosed with post-traumatic stress disorder (PTSD).
The Claimant filed two Claim Petitions alleging psychological injuries stemming from both the October and December incidents. The WCJ granted the Claimant’s Claim Petitions concluding that, based on the combination of events, Claimant sustained a work-related injury of PTSD. In finding that an “abnormal working condition” presented, the WCJ relied upon the fact that the incidents occurred within eight weeks of each other with one of the incidents resulting in windows being shot out directly above the Claimant’s head. The Employer appealed to the Appeal Board, which affirmed the WCJ. The Employer then appealed to the Commonwealth Court.
The Commonwealth Court held that an abnormal working condition presented, specifically finding that the traumatic events witnessed by the Claimant, either separately or together, were far outside the usual situation a city bus driver would be expected to experience.
A psychological work injury that is caused by a non-physical or mental stimulus, commonly known as a mental-mental injury, is compensable when the claimant proves, by objective evidence, that he or she suffered a psychiatric injury that was caused by an abnormal work event. For the actual working conditions to be considered abnormal, they must be considered in the context of the specific employment. To rebut an abnormal working condition, evidence must be submitted that shows the triggering event was normal and not merely anticipated or expected based on the nature of the claimant’s work. If you are dealing with a psychological injury, contact us to discuss compensability due to the extremely fact-driven analysis that comes with mental-mental injuries.
Questions about this case can be directed to A. Catherine McLaughlin at (412) 926-1421 or firstname.lastname@example.org.