Worker’s Compensation Update

The Pennsylvania Worker’s Compensation Act takes away from employees their right to sue their employers for injuries that they suffer in the “course of scope” of their employment.  But the loss of the right to sue is balanced by the strict liability that the Act imposes on employers.  With few exceptions, when employees are injured while working, they are automatically entitled to medical coverage and income benefits provided by the Act.  The injured employee need not prove that the employer was negligent, and any negligence or fault on the employee’s part does not reduce or eliminate his or her entitlement to benefits.

Two recent cases highlight the impact of the Act’s strict application of the concept of the “employment.” In the first case, a woman was injured while in the process of applying for a position as a food server at a retirement home.  After she had filled out a written application, she was directed to go to a medical office in the retirement home for a tuberculin test.  A nurse performed the test, which consists of the injection of a small amount of tuberculosis protein under the skin of the forearm.  The woman passed out shortly after the injection, hitting her head on the floor.  She received medical treatment, including a CAT scan.

The woman filed for workers’ compensation benefits, claiming that she had been told that she had the job as long as she passed the tuberculin test.  She claimed that she was fired before walking down the hall to the medical office for the test.

The employer denied having hired the woman before she fell and hit her head.  The retirement home director testified at the hearing that the woman was eventually hired by the retirement home, but not until she had completed a full process of signing a federal W-9 form, filing out a form identifying her vehicle, undergoing a full background check, and submitting to drug testing.  The tuberculin test was the first step in the process of examining the woman’s eligibility for hiring.  The court agreed, noting that the employer/employee relationship is the fundamental foundation to all workers’ compensation claims and does not exist until the employer has actually hired the employee.

In a separate case, a bus driver lost his workers’ compensation benefits when the court found that he hadn’t actually been working when he was injured.  The bus driver worked for a charter bus company, driving a 49-passenger bus from Pennsylvania to Atlantic City daily.  He lived in Delaware and commuted in his personal car to the bus company’s bus yard in Pennsylvania.  The bus driver claimed that he was paid to commute; he received a flat fee or $128.50 per day regardless or the number of hours he drove.

The bus driver further claimed that the company paid a higher daily flat rate for trips from the particular bus yard he worked from, because due to his location, it was not a popular yard among the bus drivers.  Claiming that the increased flat rate took into account his commute time, the bus driver claimed that his commute was part of his work day.  The employer agreed that the $128.50 was a flat rate that included an undefined premium for working from the particular bus yard, but it denied that it paid any drivers for their commuting time.

The court found that the bus driver was not “in the course and scope of employment” while commuting to work and was not entitled to benefits.  The court noted that the worker’s compensation law has, for many years included the “coming and going rule.”  The coming-and-going-rule provided that injuries sustained on the way to or from the job are pensable only if at least one of four factors exist.  (1) there is an employment contract that includes the compensation for transportation to and from work; (2) the employee has no fixed place of work; (3) the employee is on a special assignment for the employer; or (4) special circumstances exist showing that the employee’s coming and going is furthering the employer’s business.  Because the bus driver was not reimbursed his actual commuting expenses or paid a set amount for the time commuting, the court found that he did not meet the narrow factors in the coming-and-going rule.  When an employer gives an employee an errand to complete on the way to or from work, the employee can be considered to be working during the entire commute.  Likewise, when any employee starts his or her day by calling on customers or by reporting to various locations for the employer, the commute is work time. Employers and employees should examine their work circumstances and determine whether the employee’s commute is compensable time.  In order to limit workers’ compensation exposure, employers should structure employees’ duties and work locations with the coming-and-going rule in mind.


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