Benefits. Mary S. Kohnke Wagner, Esq. Marshall, Dennehey, Warner, Coleman & Goggin. The following sections explain each element.

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1 5 Mary S. Kohnke Wagner, Esq. Marshall, Dennehey, Warner, Coleman & Goggin General Purpose of the Pennsylvania Workers Compensation Act The Pennsylvania Legislature enacted the Pennsylvania Workers Compensation Act ( the Act ) in The reasoning behind enactment of workers compensation legislation was to provide a prompt no- fault remedy to employees injured at work without the need for lengthy litigation. In exchange for this benefit, employers received immunity from negligence lawsuits. Eliminating negligence lawsuits benefitted employers by removing the possibility of awards for pain and suffering. Because the Act is a no-fault remedy, an employer cannot allege contributory negligence on the part of the employee to reduce exposure for an otherwise compensable incident. Legislatures intended Workers Compensation statutes to provide incentives for employers to maintain safer working environments as a means to reduce injuries and save money. The Act as interpreted by courts and the legislature is remedial and humanitarian in nature. Ambiguous provisions in the Act are construed in favor of the employee s right to benefits. This chapter will explain the benefits available to injured workers and describe the rights and responsibilities of the parties. Essential Elements of a Claim for Workers Compensation In order to establish a right to receive Workers Compensation Benefits in Pennsylvania, the following elements are required: (1) an employment relationship during which; (2) an accident or injury arises in the course and scope of employment; and (3) is related to the employment. The following sections explain each element. Employment Relationship Throughout history, the employment relationship has been described as a master-servant relationship. Situations arise in the workers compensation setting where the employment relationship may not be clear. In certain situations, a workers compensation judge can establish an employment relationship where one may not traditionally exist. 31

2 32 Pennsylvania Workers Compensation Guide The four key elements determining employment relationship include: (1) the right to select the employee; (2) the right and power to remove the employee; (3) the power to direct the manner of performance; and (4) the potential power to control the employee. Temporary Employees The cardinal rule as to whether a judge will consider a temporary worker an employee for workers compensation purposes is to look at which entity controls the manner and method by which work is performed is done, irrespective of whether the entity exercises that control. In the normal course of business when a company hires temporary help, the parties will have a contractual relationship spelling out the nature of the relationship and will specify which entity is responsible for workers compensation coverage. Nevertheless, suppose, for some reason, the temporary agency denies responsibility and litigation ensues. The following facts develop. The temporary agency sends an individual to a company to perform a defined task, such as warehouse work, during the holiday season. Once the individual starts work for the company, company personnel supervise him. The company directs the tasks to be performed such as reviewing purchase orders, pulling the order prepares it for shipment as directed by company policy. A supervisor for the company directs workload, breaks times and provides direction when needed. A judge can find the temporary worker an employee of the company as opposed to the temporary agency. The temporary agency, after sending the worker to the company did not direct his performance in any way. These issues are very fact specific and should be discussed with the insurance carrier and legal counsel. The use of reputable agencies should avoid this issue and contract disputes may be addressed in other litigation. Another example is an accountant on a temporary assignment with a customer. For the most part the employee with special skill such as an accountant is not controlled by the customer and is therefore not an employee. The accountant controls the manner and method by which he performs his accounting work. Undocumented Workers An undocumented worker is not precluded from receiving benefits under the Act. However if the undocumented worker can perform some work, even in a reduced capacity, the employer is entitled to a suspension of wage loss benefits. The courts recognize that an employee s undocumented status makes it impossible for the employee to be legally hired by the employer of injury or anyone else. Therefore, even though the employee may have some remaining disability, if the employee can work, even in a sedentary capacity, the employer has no responsibility to prove job availability. The employee s wage loss benefits are effectively subject to suspension upon proof of some physical capacities. A recent court opinion makes proving undocumented status somewhat more difficult. In the case at issue, the employee made a claim for benefits. As part of the litigation process, he testified before the judge in order to prove the elements of his claim. When questioned by the employer s attorney as to his citizenship status, the injured worked refused to answer under his Fifth Amendment right against self-incrimination. The judge found that the employee did sustain an injury but suspended his right to benefits due to his undocumented status. The judge found that the injured workers refusal to answer questions regarding his immigration status established an adverse inference from which he could draw the conclusion that the

3 33 employee was undocumented. The employee appealed. The court held that an employee s refusal to answer this question, absent other evidence, is insufficient to support a suspension of benefits based upon illegal immigration status. The court suggested that presenting an incomplete I-9 form or other documentation presented at hire could support an adverse inference as to legal working status. The bottom line is that the employee s failure to answer questions about immigration status is not sufficient evidence to prove illegal status. In order to prove an injured worker is not entitled to benefits based upon immigration status counsel for the employer must submit into evidence any available documentation. Other investigative methods can be employed to make the argument as well. Communication with the insurance representative and counsel is key to making this important argument. Statutory Employer A statutory employer is an employer who is not a contractual or common law employer, but is established by the Act. This has been interpreted by case law. You will not see this definition in the Act. In order for a Court to establish a statutory employment relationship, five distinct elements must be confirmed. These include: (1) contract with owner of land or one in the position of an owner; (2) premises occupied or under the control of the contractor seeking statutory employer status; (3) subcontract made by contractor; (4) part of contractor s regular business must be entrusted to the subcontractor under the contract; and (5) employee of subcontractor is injured on the premises. A recent Supreme Court case decided that a truck driver injured on a public highwaycould be considered a statutory employee of a company secondarily liable because the primary employer did not maintain workers compensation insurance. The statutory employer can be found liable to pay workers compensation to employees of the subcontractor, unless, the subcontractor has workers compensation coverage. A statutory employer, who under this section, is required to pay compensation has a right to seek reimbursement from the subcontractor who is primarily liable. Miscellaneous Employees The Act provides employee status to certain enumerated categories including: (a) Volunteer firefighters; (b) Volunteer ambulance workers; (c) Volunteer rescue and EMS workers; (d) Volunteers of State Parks and Forest Programs; (e) Deputy Forest Protectors; (f) Special waterways patrol officers; (g) Hazardous response teams; (h) Auxiliary police; and (i) Special School or Fire police.

4 34 Pennsylvania Workers Compensation Guide Course and Scope of Employment In general, terms, an employee is in the course and scope of employment if the employee is furthering the business of the employer. The analysis is as follows: Workers compensation is payable if the injury, illness or death occurs: (a) during the course and scope of employment; (b) occurs on the premises of the employer; (c) if the employee s presence is required by the nature of his employment; and (d) it is the nature of the premises that causes the injury. An employee who slips and falls on the ice on his/her way into the building to begin the work day is considered to be in the course and scope of employment because the nature of the premises caused the injury. An employee attending a seminar mandated by the employer who sustains an injury at the seminar will be found to be in the course and scope of employment. Courts have also held that an employee injured while playing in a company softball game where attendance is required, constitutes course and scope of employment. An injury sustained while playing in the game could be a work-related injury. An employee struck by a vehicle on a public sidewalk directly adjacent to the plant gate prior to beginning his shift, was deemed to be on the premises that includes reasonable means to gain access to the property. An employee who sustained a serious injury while crossing a public street from a parking garage to her place of employment was found not to be in the course and scope of employment because she was not required to use that particular parking lot. This was true even though she received a subsidy for her parking expenses. These situations are very fact specific and should be reviewed with counsel. Injuries Occurring on the Way to and From Work Commuting to and from work is not generally in the course of employment. This is known as the coming and going rule. The following are exceptions to the coming and going rule: 1) The employee has no fixed place of work; 2) the employment contract included transportation to and from work; 3) the employee is on special assignment for the employer; or 4) special circumstances are such that the employee was furthering the business of the employer. The Act and related case law have identified exceptions to the coming and going rule. It is first necessary to determine whether the employee has a fixed place of business or will be considered a traveling employee. The course and scope of employment for a fixed or stationary employee is narrower than that of a traveling employee. Employee with no fixed place of work Traveling employees, such as salespeople, who do not have a fixed worksite, are entitled to a more liberal definition of the course and scope of employment. A traveling employee is considered in the course and scope of employment from the time work activities begins until work is completed. This includes travel time and potentially client entertainment.

5 35 A construction worker injured in a company truck during a lunch break away from the site argued that he was a traveling employee because he had no one fixed place of business. His work in construction took him to different sites depending on the specific job. In that situation, the judge found that the employee was not in the course and scope of employment while injured on his lunch break. In that case, the employee was assigned to a specific job site for a period of weeks. The court held that the injury was employee had a fixed place of employment at the time of injury. Therefore, the injury sustained at lunch was not compensable. A medical doctor was found to be in the course and scope of employment while traveling between two job sites as required by the duties of her position. Employment contract includes transportation to and from work Take a situation where a sales representative is provided with a company car as part of the contract for employment. The employee is permitted to use the car (24) hours a day without restriction. This situation falls in the employment contract exception to the coming and going rule. However, if an employer provides a travel allowance, this does not establish an employment contract including transportation. When an employee used a company car on an occasional basis to commute to work and sustained an accident in front of the employer s place of business, but not on the employer s premises, the auto accident was found not to be in the course and scope of employment. The Court held that permission of an employee to use a company vehicle for personal use does not constitute providing a contract of transportation. Employee is on special assignment for the employer An employee who regularly worked at one office was asked to travel to another office to become familiar with accounts handled in that office. This was found to be a special assignment. An employee sustained an injury on his way home to have a sandwich before continuing on to an evening appointment for his employer. Because he had not finished his duties for the day, he was found to be on a special mission and therefore in the course and scope of his employment at the type of the accident. Special circumstances- employee was furthering the interests of the employer An employee was injured in a bathroom at work while sitting on a toilet. The employer argued that the injury was not in the course and scope of employment. The court held that a momentary departure from work routine to use the bathroom did not remove the employee from the course of employment. An employee injured on a paid break away from the employer s premises attending to personal business was not in the course and scope of employment. An employee working at home, from an employer approved home office, fell down stairs after getting something to drink. This situation was also found to be in the course of employment. The main issue in determining whether an individual is in the course and scope of his/her employment is whether the employee is furthering the business of the employer at the time of the injury. These situations can require analysis and research. You are encouraged to contact your insurance professional or Workers Compensation attorney if you have any questions.

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