Employee
Denied WC Benefits for Mental Disability Caused by Employer’s
Sexual
Harassment
A parole agent alleged that she was sexually harassed by
her supervisor’s supervisor over a period of 15 months, resulting in disabling
anxiety, chest pains and heart palpitations.
The claimant filed a workers’ compensation (“wc”) claim for mental
disability, alleging that the harassment amounted to “abnormal working
conditions” necessary for such a claim.
The Commonwealth Court reiterated the well-settled law that injuries
arising from “personal conduct” at the workplace are not compensable in
wc. It observed that the Superior Court
and the Federal District Courts have repeatedly refused to allow sexual
harassment cases to be adjudicated under workers’ compensation, as they could
not “conceive of an instance of sexual harassment of an employee by an Employer
or others in the workplace which properly could be characterized as employment
related.”
Accordingly, the Commonwealth Court held that when a co-employee or third
party sexually harasses an employee, any resulting mental disability is not
compensable under wc. Such harassment
is personal, not work-related, and “not part of the proper employer / employee
relationship.”
The Court never
discusses why the sexual nature of the alleged employer conduct here is any
different from the non-sexual but otherwise similar conduct of employers in
other cases where the Court has found “abnormal working conditions, and awarded
wc benefits.” (claimant locked in a
room yelled at, pushed and otherwise
physically touched, US Airways v. WCAB, 14 PAWCLR 2092 (Pa. Commw. Ct.
2000); claimant wrongfully accused of a crime, Miller v. WCAB, 724 A.2d
971 (Pa. Commw. Ct. 1999)) All of the
above conduct of the employer / supervisor would similarly appear to be
personal in nature, and “not part of the proper employer / employee
relationship.”
Heath v. WCAB (Pennsylvania Bd. Of Probation and Parole) 2002 WL 31641220 (Pa. Cmwlth. 2002)
Periods of Suspension Do Not Count Toward 500 Week Cap
on WC Partial Disability Benefits
It had been widely accepted that periods of suspension are included in
the 500 week maximum for temporary partial disability (“TPD”) wc benefits,
under the Supreme Court cases of Dillon v. WCAB (Greenwich Collieries), 640
A.2d 386 (Pa. 1994) and Stewart v. WCAB (Pennsylvania Glass Sand/US Silica),
756 A.2d 655 (Pa. 2000). The
Commonwealth Court has changed that widely-accepted interpretation.
The Court interpreted those Supreme Court cases as simply holding that a
claimant had 500 weeks from the suspension of her benefits to file a Petition
for Reinstatement, under the statute of repose in section 413 of the Act. It held that those cases did not
intend to include periods of suspension
in the 500 week cap on TPD benefits under section 306(b). Accordingly, in any case where an employer
is calculating the end of a claimant’s 500 week maximum of TPD benefits, the
weeks should be carefully recalculated, taking this new case into account.
Cytemp Specialty Steel v. WCAB (Servey) 2002 WL 31662407 (Pa. Commw. Ct. 2002)
Employer Who Scotches WC Carrier’s Settlement with Claimant Sued for
Tortious Interference
3rd Circuit Dodges “Regarded As” Disabled Issue Under the
ADA
An employee receiving wc benefits had negotiated a settlement with the employer’s wc carrier for $120,000. The employer provided the claimant with a reasonable accommodation, and reinstated him. The carrier then withdrew its settlement offer.
The employee sued his employer under the ADA and the PHRA for failure to accommodate him as he was “regarded as” disabled due to his work-related injury. He also sued the employer for tortious interference with contractual relations, based on the employer’s interference with the wc settlement.
Tortious Interference:
In Pennsylvania, a party who interferes with another party’s contractual negotiations will not be liable for damages caused by that activity, as long as the interfering party has a privilege or justification. Most importantly, it is the complaining party who must prove the lack of any such privilege or justification.
Here, the adjuster for the wc insurance carrier testified regarding the potential effect a settlement could have on the employer’s premiums. The court held that there was not enough information to show a privilege or lack thereof. Since it was the plaintiff’s burden to prove a lack of privilege, the court held that the plaintiff failed to prove a lack of employer privilege, and the claim of tortious interference was dismissed.
The court specifically declined to address whether an employer’s interest in premium increases could ever qualify as a privilege, which would permit an insured employer to interfere in its wc carrier’s settlement negotiations with a claimant employee.
“Regarded As” under the ADA:
There is a split among the Federal Circuit Courts, as to whether an employee who is “regarded as” disabled under the ADA is entitled to reasonable accommodations by his employer. The Fifth, Sixth and Eighth Circuits have held that “regarded as” employees are not entitled to reasonable accommodations, while the First Circuit has held that those employees are entitled to such accommodations.
The Third Circuit had the opportunity in this case to weigh in on how this issue would be handled in Pennsylvania. However, the Court dodged this issue, as it found that the employer had actually accommodated the plaintiff. That being the case, the Court was able to avoid deciding the “regarded as” issue for the Third Circuit.
Buskirk v. Apollo Metals, 307 F.3d 160 (3rd Cir. 2002)
Employer Granted Subrogation over WC Claimant’s Legal
Malpractice Claim
A Lower Standard
than Medical Malpractice Subrogation
Employers have long used section 319 of the WC Act to assert subrogation
rights over claims by wc claimants against the party who caused the claimant’s
work injury. This has been applied to
claims including motor vehicle accidents and medical malpractice actions
against third parties.
The Pennsylvania Supreme Court addressed for the first time ever whether
an employer can assert subrogation over a claimant’s legal malpractice
claim. The Commonwealth court below had
denied the employer’s subrogation rights because the Act clearly requires
causation between the claimant’s injury and the act or omission of the 3rd
party, and that court found that the legal malpractice did not cause the
injury.
The Supreme Court relied on policy to overturn the Commonwealth Court and
hold that an employer does have the right to subrogate over a claimant’s legal
malpractice claim. The Supreme Court
wanted to prevent: an employer from paying for another’s negligence, double
recovery by the claimant, and a 3rd party from escaping liability
for his negligence.
The Court then addressed whether an employer’s subrogation claim over a
legal malpractice claim is held to the same standard of proof as a medical
malpractice (“med mal”) subrogation claim.
In med mal subrogation, an employer
cannot rely solely on the existence of a med mal Complaint and settlement/verdict,
but must independently prove that the med mal aggravated the work-related
injury.
In a legal malpractice action, the plaintiff must prove not only the
attorney’s negligence in handling a lawsuit, but also that the plaintiff had a
viable underlying action against the party he initially wanted to sue. Because of this unique “case within a case,”
an employer subrogating over such a legal malpractice case is not held to the
same standard of proof as in a med mal subrogation claim. In a legal malpractice subrogation claim,
the employer can rely solely on the existence of the legal malpractice claim to
prevail.
Poole v. WCAB (Warehouse Club, Inc.), 2002 WL 31599907 (Pa. 2002)
EEOC Letter of Determination Excluded from Evidence
Low Probative Value did not Outweigh delay
that would be Incurred by Letter’s Admission
Plaintiff sued her employer Home Depot under Title VII and the ADEA, alleging sex, race and age discrimination in part because Home Depot refused to transfer her to a sales associate position within the Hardware Department. After the Jury found for Home Depot, plaintiff appealed on the grounds that the District Court wrongfully excluded from evidence an EEOC Letter of Determination which concluded that reasonable cause had existed to believe that Home Depot had discriminated against her because of her sex and race.
While EEOC findings are admissible under the hearsay rules, they can be excluded from evidence if the probative value is outweighed by prejudice or unnecessary delay in litigation. The Third Circuit Court of Appeals agreed with the Trial Court that the EEOC Letter of Determination had low probative value. The EEOC Letter described the plaintiff as being “highly experienced” in sales, but testimony at trial, including that of the plaintiff, showed this to be incorrect.
The Court reasoned that had the EEOC letter been introduced into evidence, a great deal of time and testimony would have been required by Home Depot to rebut the EEOC’s conclusions. Accordingly, the Third Circuit upheld the Trial Court’s exclusion of the EEOC letter from evidence.
Coleman v. Home Depot, Inc, 306 F.3d 1333 (3rd Cir. 2002)
Wrongful Discharge Action Permitted
Employee Fired for Refusing to
Dissuade Subordinate from Pursuing WC Claim
In the context of an ugly family dispute, the Superior Court held that in
Pennsylvania, when an employee is fired for refusing to dissuade a subordinate
employee from pursuing a workers’ compensation claim, a cause of action for
wrongful discharge does exist against the employer.
Bruce, the owner of the business, was the brother of Theo, a supervisor,
whose son Doug, a laborer, alleged a work injury. Bruce pressured Theo to convince Doug not to pursue a workers’
compensation claim. Theo did not comply
and was fired.
The Court noted that only in rare circumstances are exceptions recognized
to the employment-at-will doctrine. It
held that an exception was warranted in this context in light of public policy
considerations embodied in the workers’ compensation Act and prevailing Supreme
Court precedent.
Rothrock v. Rothrock Motor Sales, Inc. 2002 WL 31116642 (Pa. Super. 2002)