TTH eNotes: Workers’ Compensation: December 2019
December 03, 2019
SIGNIFICANT BUREAU FORM DEVELOPMENT
BUREAU OF WORKERS’ COMPENSATION RELEASES ALTERNATE NOTICE OF COMPENSATION PAYABLE (LIBC-495B)
By Justin D. Beck (JBeck@tthlaw.com)
The Bureau of Workers’ Compensation has created, and now provides for the use of, LIBC-495B, an alternate version of the Notice of Compensation Payable. While the original LIBC-495 still exists, the 495B includes an expanded “Notice to Employee” paragraph at the bottom of page 2, which provides the critical cautions and advisories to a claimant as required by Section 406.1(d)(5) of the Act, otherwise traditionally served via the Notice Stopping Temporary Compensation (“NSTC”) and Notice of Workers’ Compensation Denial (“NCD”) where payment of temporary compensation is ceased. The new language advises the claimant that the payment of temporary compensation has stopped, was not an admission of liability, and that a petition must be filed in order to establish an entitlement to ongoing indemnity benefits.
In promulgating this alternate form, it appears that the Bureau has attempted to give renewed effect to Bureau Regulation 121.17(d)(2) (instructing that form LIBC-495 may be issued where temporary payments under a NTCP are stopped) in the aftermath of the Workers’ Compensation Appeal Board’s holdings in White v. Metropolitan Edison Co. and Price v. Phila. Sch. Dist. In those cases, the Board held that Sections 406.1(d)(5)(i)-(iii) of the Act require an employer to issue both a NSTC and NCD where stopping payments of temporary compensation pursuant to a NTCP, even where a Medical-Only Notice of Compensation Payable follows.
Conceivably, the LIBC-495B may now be filed, without the need for a concomitant NSTC and NCD, where payment of temporary compensation is stopped and an employer wishes to accept the claim on a medical-only basis. Indeed, as the expanded cautionary language refers to the fact that the “payment of temporary compensation was not an admission of liability,” it is expected that the LIBC-495B would only legitimately be issued in a medical-only context.
Of course, it is to be emphasized that this new form has yet to be tested before either the WCAB or Commonwealth Court, and thus, its efficacy remains unknown and subject to debate. In consideration of these uncertainties, use of the LIBC-495B should be limited to those claims where counsel has been consulted as to the potential risks and liabilities which exist.
SIGNIFICANT PENNSYLVANIA CASE SUMMARIES
Fedchem, LLC v. WCAB (Wescoe), No. 1641 C.D. 2018, reported (Pa. Commw., issued November 18, 2019).
In a reported decision, litigated by Thomas, Thomas & Hafer attorneys Ryan C. Blazure, Joseph J. Shields, and Louis C. Long, the Commonwealth Court held that a claimant’s subjective evaluation of his own vocational abilities was not dispositive where conflicting expert vocational evidence existed and the WCJ had failed to render credibility determinations related to the same.
Background: There, the claimant had been injured in September 2011 when his foot became entangled in shrink wrap, causing him to turn suddenly, injuring his back. In August 2016, the employer filed a modification petition pursuant to Section 413(a) of the Act, seeking to modify the claimant’s benefits as based upon a labor market survey and earning power assessment.
In support of its petition, the employer had offered the testimony of Dr. Okin, who opined that the claimant could return to light-duty work. The doctor reviewed four job descriptions as provided by the employer’s vocational expert, and concluded that the claimant was physically capable of performing each.
The employer further presented the testimony of Ms. Stratton, a certified vocational rehabilitation counselor, who identified four jobs pursuant to a labor market survey: (1) a dispatcher at Blue Ridge Communications; and (2) a customer service position at PenTeleData; (3) HMS Host (light duty); and (4) A Pawn Plus (sedentary duty).
In opposition to the employer’s petition, the claimant testified that he had applied for the positions with Blue Ridge Communications and PenTeleData, however, neither had offered him a job. He further applied for the cashier position with HMS Host online, but received no offer. Despite presenting to apply, no offer was ever made for the A Pawn Plus position. The Claimant further testified that he did not believe he had the skills or experience to perform any of the positions which had been identified. He doubted that he had the physical ability to work as a result of ongoing symptoms allegedly relatable to the work injury.
In further opposition to the employer’s petition, the claimant presented the testimony of Mr. Mohn, a certified vocational rehabilitation counselor. Mr. Mohn testified that the four positions identified by the labor market survey exceeded the claimant’s skills, experience, and physical capabilities.
Finally, in further opposition to the employer’s petition, the claimant offered the testimony of Dr. Mauthe, who had testified that the claimant could perform light-duty work. Notably, Dr. Mauthe authorized the claimant to perform the position with Blue Ridge Communications on a trial basis; he further believed the claimant to be capable of performing the position with PenTeleData. Dr. Mauthe did not believe the claimant could perform the positions with either HMS Host or A Pawn Plus.
The WCJ found the testimonies of the claimant and Dr. Mauthe to be credible. However, the WCJ did not address the testimonies of either Mr. Mohn or Ms. Stratton, and did not decide which of the various and conflicting job descriptions that had been provided to the medical experts were accurate. Instead, the judge found that “[the Claimant] was never afforded the opportunity to perform the jobs and therefore, consistent with Phoenixville Hospital v. WCAB (Shoop), 81 A.3d 830 (Pa. 2013), the WCJ does not find the jobs were open and available to [the claimant].” On this basis, the WCJ denied the employer’s modification petition.
The employer appealed to the WCAB, which affirmed the WCJ. While the Board agreed that the WCJ had failed to address the testimonies of the vocational experts and acknowledged that this error “would normally warrant a remand,” because the claimant had credibly testified that he lacked the skills or experience to do the jobs, it found that the same were not vocationally suitable.
The employer appealed to the Commonwealth Court, which has now vacated and remanded.
Legal Analysis: On appeal, the employer presented two arguments: (1) that the WCJ erred in denying the petition without addressing the testimonies of the vocational experts and making credibility determinations thereon; and (2) the Board erred in affirming the WCJ solely on the basis of the claimant’s testimony.
At the outset of its analysis, the court noted that, in Phoenixville Hospital, the Supreme Court had held that a claimant need not be offered a job in order for the employer to meet its burden that there are open and available positions that fall within the claimant’s physical limitations. Still, the positions must be “actually open and potentially available, not simply jobs that are already filled with existing employees.” A claimant must thereafter have a reasonable opportunity to respond to the employer’s vocational evidence and be able “to present evidence regarding her or his experience with applying for the jobs identified by the employer’s expert witness.”
Here, the court noted that the claimant had not actually contended that the jobs identified by the employer’s vocational expert were not open and available; in fact, he had applied for the jobs. However, Ms. Stratton acknowledged that she had not ascertained whether the jobs remained open after she sent the notices to the claimant. Pursuant to Phoenixville, it was the employer’s burden to establish that the jobs remained open for a reasonable length of time so that the claimant could apply for the same. The court concluded that, while Ms. Stratton’s testimony did not satisfy this burden, other evidence of record did. To this end, Mr. Mohn’s vocational assessment report had stated that the positions with Blue Ridge Communications and PenTeleData indeed remained open and available two days after the claimant had filed his applications for each. Moreover, his report stated that the position with A Pawn Plus had remained open through the end of August 2016. And, of course, the claimant’s own testimony established that the positions were open and available, as he had actually applied for them.
The court concluded that the WCJ erred where denying the employer’s petition on the basis that the claimant had not been offered any of the jobs identified in the labor market survey; this erroneous analysis was and is inconsistent with Phoenixville Hospital. The WCJ further erred where failing to accept or reject the vocational experts’ testimonies and reports, in whole or in part. True, the Board had attempted to sidestep this omission by relying upon the claimant’s credited testimony that the positions were not within his skills or experience. This, however, was insufficient to defeat the conflicting testimony of the employer’s vocational expert. Pursuant to Section 422(a) of the Act, when faced with conflicting evidence, “the [WCJ] must adequately explain the reasons for rejecting or discrediting competent evidence.” 77 P.S. § 834. Here, the parties had offered conflicting evidence as to the physical requirements of the positions, whether prior experience was required, and whether on-the-job training was provided. Without factual findings on the vocational skills and physical demands required in each job, the court determined that the WCJ lacked the foundation for accepting the claimant’s testimony that he was not vocationally or physically capable of performing the jobs identified by the labor market survey.
For these reasons, the court vacated the order of the Board, and instructed a remand to the WCJ for findings in accordance with its opinion.
Takeaway: Pursuant to the controlling precedent of Phoenixville Hospital, an employer need not prove that a claimant has been actually offered any of the jobs identified in its labor market survey in order to prove that the same are “open and available” so as to support a modification of benefits.
US Airways, Inc. v. WCAB (Bockelman), No. 35 WAP 2018 (Pa., filed November 20, 2019, Wecht, J.).
In an Opinion delivered by Justice Wecht, the Supreme Court of Pennsylvania has held that a shuttle bus and parking lot, both owned and operated by the City of Philadelphia Division of Aviation, were so connected with, and thus integral to, US Airways’ business operations, that the same constituted a component of the employer’s premises, rendering compensable any injuries which occurred thereon.
Background: The claimant, a Philadelphia-based flight attendant employed by US Airways, had driven her personal vehicle to the Philadelphia International Airport on the date of injury, parking in one of two designated employee lots. Notably, the City of Philadelphia Division of Aviation (“Division”), rather than US Airways, owned, operated, and maintained the lots for airport and airline employees. Moreover, the Division undertook all necessary background and security screenings necessary for permitting access to the lots. Critically, US Airways did not require its employees to use either the Division’s parking lots or shuttle service.
The claimant rode the Division shuttle to the airport terminal and flew to Miami as scheduled. Upon her return to Philadelphia that evening, and after a brief discussion with a co-worker, the claimant proceeded to board a shuttle bus to take her back to her vehicle. While lifting her suitcase onto one of the shuttle’s luggage racks, the claimant slipped in a puddle and fell backwards, crushing her foot.
The claimant was to later file a claim petition, alleging disabling foot and ankle injuries as a result of the slip and fall. In support of that petition, the claimant presented her own testimony, as well as a collective bargaining agreement between the Association of Flight Attendants (“AFA”) (to which she belonged) and US Airways, which included a provision stating that US Airways was responsible for providing either free or reimbursed parking for flight attendants at their domicile airports. In opposition to the petition, US Airways presented testimonial evidence establishing that it did not compensate employees to park in the lots at the Philadelphia International Airport, but that the same were owned, operated, and maintained by the Division. Further, US Airways emphasized that the lots were open to all airport and airline employees. Finally, while acknowledging the terms of the AFA’s collective bargaining agreement, US Airways argued that those specific provisions did not apply to flight attendants since free parking was otherwise available.
Ultimately, the WCJ granted the claim petition, explaining that the claimant’s injury satisfied all three elements of the Slaugenhaupt test (see below). US Airways appealed to the WCAB, which affirmed. It subsequently appealed to the Commonwealth Court, which similarly affirmed the award of benefits.
US Airways thereafter appealed to the Supreme Court of Pennsylvania, which granted its allowance of appeal. The limited and narrow question to be addressed was whether a worker, who voluntarily uses an optional employee parking area, remains in the course of employment while traveling between that area and her typical workspace. The Court has now answered in the affirmative.
Legal Analysis: The Court began its analysis by noting that Section 301(c)(1) of the Act, while “unwieldy at first blush,” distills “a few simple rules.” Most importantly, it noted, an employee’s injury is compensable if it arises in the course of employment. This can occur in two distinct situations: (1) where an employee is injured on or off the employer’s premises while engaged in furtherance of the employer’s business or affairs; or (2) where an employee is not furthering the employer’s business or affairs but nevertheless (a) is on the premises occupied or under the control of the employer, or upon which the employer’s business or affairs are being carried on; (b) is required by the nature of his or her employment to be present on the employer’s premises; and (c) sustains injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon. It is notable that this latter three-prong analysis ((a)-(c)) owes its genesis to the seminal course-of-employment precedent WCAB (Slaugenhaupt) v. U.S. Steel Corp., 376 A.2d 271 (Pa. 1977).
The Court went on to explain that the meaning of the phrase “the employer’s premises,” and by extension, its reference in the Slaugenhaupt test, is not limited to property that the employer legally owns or physically controls. In this regard, parking lots, public streets, and common areas in multi-unit office buildings, for example, may be considered part of the employer’s premises if they are integral to the employer’s workspace or constitute a reasonable means of ingress to or egress from the workplace.
Ultimately, the Court held that the WCJ, Board, and Commonwealth Court had all correctly concluded that the lot in which the claimant parked her vehicle was integral to US Airways’ business operations. In support of this conclusion, the Court pointed to the facts that: (1) the claimant used the airport parking lot and shuttle service to enter and exit her workplace; (2) US Airways was aware that the Division would make employee parking available to airline employees; (3) under the collective bargaining agreement, US Airways would have been obligated to reimburse flight attendants for costs of airport parking had the Division’s parking not otherwise been made available free of charge; and (4) US Airways was required to obtain security badges from the Division which were then used to access the employee parking lots.
Based upon these facts, the Court had “little difficulty concluding that the parking lot and shuttle were connected with, and thus integral to, US Airways’ business operations at the Philadelphia International Airport.” The Supreme Court thus affirmed the order of the Commonwealth Court.
Takeaway: While Bockelman applies a most liberal application of the relevant premises tests, the reasoning of the court (Part III of the decision) was presented as a plurality, and is therefore not considered to be a binding precedent. Indeed, multiple Justices dissented, emphasizing that Bockelman is not to be construed as overruling any prior precedents in this same category.
Any questions regarding this case can be directed to Justin D. Beck, Esquire, at (412) 926-1441 or at JBeck@tthlaw.com.
Abbasi Communications v. WCAB (Cramer), No. 487 C.D. 2019, unreported (Pa. Commw., filed November 18, 2019, Covey, J.).
In an unreported decision, the Commonwealth Court held that a WCJ had legitimately found a claimant to be an employee, rather than an independent contractor, based upon the credited evidence of record and a thorough Hammermill analysis.
Background: The claimant, a satellite internet equipment installer, had filed a claim petition, alleging injuries to the back and ribs after falling from a ladder on May 31, 2015. The parties bifurcated the matter on the issue of an employer-employee relationship, with the employer positing that the claimant was, in fact, an independent contractor. The WCJ was to issue an interlocutory order, which found that the claimant had established his status as an employee. Thereafter, the WCJ issued a final decision and order, granting the claim petition.
The employer appealed to the WCAB, which affirmed the WCJ without offering any independent legal analysis, but instead, simply adopting the WCJ’s “reasonable conclusion” that the claimant was an employee of the employer. In so stating, the Board acknowledged that there existed elements of both an employment relationship as well as an independent contractor role, “making this a very difficult decision.” However, relying upon the critical factor of control, in the aggregate, the claimant was deemed to be an employee.
The employer appealed to the Commonwealth Court, which has now affirmed the WCAB.
Legal Analysis: In so holding, the court reviewed the critical factors applicable where determining whether a claimant is an employee or independent contractor, namely: (1) control of manner work is to be done; (2) responsibility for result only; (3) terms of agreement between the parties; (4) nature of work or occupation; (5) skill required for performance; (6) whether one is engaged in a distinct occupation or business; (7) whether payment is by the time or by the job; (8) whether work is part of the regular business of the employer; and (9) the right to terminate the employment at any time. Hammermill Paper Co. v. Rust Eng’g Co., 243 A.2d 389 (Pa. 1968).
On appeal, the employer had argued that the WCJ’s finding that the claimant lacked control over his schedule was not supported by substantial evidence. This allegation, however, was rejected. The court emphasized that substantial evidence of record supported such a finding, namely, the claimant’s credited testimony that his schedule was controlled by the employer and that he was required to request any changes to the same for ultimate approval by the employer.
The employer had further argued that, contrary to the WCJ’s findings, it had not directed the manner of the claimant’s work and that, in any event, the requirement that the claimant adhere to the employer’s installation specifications and submit a completed installation photograph did not amount to control over the work performed. The court rejected this argument, noting that the employer had not simply examined the finished work, but insisted that the claimant submit detailed installation procedures and photographs documenting compliance therewith. This, the court emphasized, amounted to control over the means of accomplishing the contract, and did not merely reserve control as to the result. Accordingly, it was clear to the court that the employer “exercised substantial control over the manner in which [the claimant] performed his work.”
Finally, the court noted that the existence of business cards, printed by the employer with the claimant’s name, in addition to a magnetic plaque on the claimant’s vehicle, were relevant factors to be considered in the employment relationship analysis. It cautioned, however, that an insignia on a vehicle does not create an irrebutable presumption of employment status. (For this proposition, the court citing Universal Am-Can, Ldt. v. WCAB (Minteer), 762 A.2d 328 (Pa. 2000)).
In consideration of the employer’s “extensive control” over the manner of the claimant’s work and schedule, that the employer held the claimant out as its employee, and given “the WCJ’s thoughtful analysis of the Hammermill factors indicating an employment relationship,” the court determined that the Board had properly affirmed the WCJ’s decision.
Takeaway: The Commonwealth Court’s decision reinforces the reality that independent-contractor analyses are, invariably, fact specific and notoriously difficult to overturn on appeal. This is particularly so where the WCJ performs a thorough and reasonable analysis by fully considering the Hammermill factors. In the end, however, the critical factor remains whether the purported employer retained the ability to control the manner of the work performed by the claimant.
Any questions regarding this case can be directed to Justin D. Beck, Esquire, at (412) 926-1441 or at JBeck@tthlaw.com.
Navarez v. WCAB (Dan’s Lawn Care Inc., UEGF, and SWIF), No. 1080 C.D. 2018, unreported (Pa. Commw., filed November 21, 2019, Ceisler, J.).
In an unreported opinion, the Commonwealth Court held that a claimant, hired to perform a discrete and limited job for his otherwise regular seasonal employer, was a casual employee at the time he was injured.
Background: There, the claimant had worked as a laborer for the employer, a lawn care business. In this capacity, he would cut grass, rake leaves, and spread mulch. The employer’s lawn care business operated seasonally, from April through December; the claimant had received his final paycheck for the season from the employer on December 9, 2011. Thereafter, in late December 2011, the employer’s owner called the claimant and asked him to work for a few days on a project converting the second-floor space above the employer’s shop into an apartment. On December 30, 2011, while installing wood siding on the exterior of the building, the claimant fell from a ladder, injuring his left femur and elbow.
The claimant filed a claim petition against the employer, alleging total disability. The employer advanced the defense that its seasonal operations ceased as of December 5, 2011, and that the claimant was laid off as of that date. Accordingly, the claimant had not actually worked for the employer on the date of injury.
In support of his petition, the claimant testified that he typically worked for the employer from April through December of each year. At times, the owner of the employer would call the claimant to offer off-season work. Indeed, in late December 2011, the owner of the employer called the claimant with an offer of such work, which included installing door locks and wood siding, caulking a vent, and painting the floor of a second-floor space above the employer’s shop. It was while installing wood siding on the exterior of the building that claimant fell from the ladder, injuring his left leg and elbow.
In opposition to the petition, the owner of the employer testified that the second floor of the shop was being renovated into an apartment. He further testified that the claimant had been hired solely to paint, and that he was expressly told not to install the wood siding. The owner noted that it was his impression that the claimant did not realize who he was working for at the time of his injury.
The WCJ accepted the testimony of the claimant’s treating physician, finding that he was indeed totally disabled. However, the WCJ also found that the record demonstrated that the claimant had experienced a complete break in his employment relationship at the time of his injury, which was not to resume until the following spring. For this reason, the WCJ concluded that the claimant’s employment, on the date of loss, was casual in nature as it was not regular or continuous and was expected to last no more than a few days. Moreover, none of the work performed in the days leading up to the injury were associated with the employer’s regular business of lawn care. For these reasons, the WCJ denied the claimant’s claim petition.
The claimant appealed to the WCAB, which affirmed; he subsequently appealed to the Commonwealth Court, which affirmed the Board.
Legal Analysis: The court began its analysis by turning to Section 104 of the Act, which excludes from the definition of employees eligible for workers’ compensation benefits “persons whose employment is casual in character and not in the regular course of the business of the employer.” 77 P.S. § 22. Indeed, “claimants are entitled to compensation unless they are found to be both casual employees and acting not in the regular course of the employer’s business.” Carpenters’ Joint Apprenticeship Comm. v. WCAB (Wisniewski), 654 A.3d 656, 659 (Pa. Cmwlth. 1995).
The court further noted that, while the Act does not define “casual employment,” generally, employment is considered to be casual in nature if an individual is employed “only occasionally, at comparatively long and irregular intervals, for limited and temporary purposes, the hiring in each instance being a matter of special engagement.” Cochrane v. William Penn Hotel, 16 A.3d 43 (Pa. 1940). Notably, even where a single or special job is involved, such employment is not casual in nature if it is not of an emergency or incidental variety, but rather, represents a planned project, and the tenure of the service necessary to complete the same is of a fairly long duration.
Ultimately, the court was unpersuaded that the claimant’s post-season employment, renovating a second-floor apartment, constituted a continuation of his seasonal duties. No evidence suggested that the claimant ever painted or otherwise renovated the second-floor apartment as part of the employer’s seasonal business, which routinely commenced in the spring and ended in the winter. As the claimant had received his final paycheck on December 9, 2011, and was instructed to file for unemployment compensation at that time, it was clear that the seasonal employment had in fact ended prior to the injury. Notably, the court dismissed the material impact of whether the claimant had actually worked for the employer or its owner, in his individual capacity; the critical inquiry, instead, was whether the employment itself was of a casual nature and not in the regular course of the business of the employer.
The court determined that the employer’s business did not regularly renovate properties, and that the owner had even hired an outside contractor to perform most the tasks related to such renovations. Furthermore, the claimant’s engagement was for a limited and temporary purpose, with no expectation that employment would continue more than the one or two days offered.
For all of these reasons, the court concluded that the claimant’s employment at the time of injury was not in the regular course of the employer’s business, and could only be described as casual. Consequently, the court affirmed the dismissal of the claimant’s claim petition.
Takeaway: Navarez reinforces the now well-established principle that, in order for a claimant to be considered an employee of a purported employer for purposes of compensation eligibility, he or she must perform work which is in the regular course of the employer’s business, and only be retained on an occasional basis.
Any questions regarding this case can be directed to Justin D. Beck, Esquire, at (412) 926-1441 or at JBeck@tthlaw.com.