2 Lingering
Kisses are not Enough to Cut off Widow’s Benefits
in PA
WC
An
Employer Needs Harder Evidence of a Carnal Relationship to Stop
a
Widow’s Benefits.
The only events other than settlement
that will end an employer’s liability for widow’s benefits under PA WC is
the widow’s death, remarriage, prostitution, or “meretricious relationship.”
Here, the employer presented evidence of a “meretricious relationship”: a
videotape of the widow embracing a man who lived with her, with her hand and
arm around his neck, lingering over two kisses directly on the lips. The widow presented evidence that the man in
the video, with whom she lived, suffered from permanent erectile dysfunction,
and argued that she had not had sex since her husband died. She stated that the man lived with her only
because his furnace broke, and he was remodeling his house.
The Judge terminated the widow’s benefits, finding that the kiss is not
the type of kiss the majority of Pennsylvanians would give to their platonic
friends.
The Commonwealth Court reversed, and reinstated the widow’s
benefits. It held that the kiss video
was not enough to establish a sexual relationship. The Court gave no indication of how a “meretricious relationship”
could be proved, other than by the widow’s admission or by proof of the widow
conceiving a child.
Anthony v. WCAB (Anderson Box Co., Inc.) 2003 WL 1786996 (Pa. Cmwlth. 2003)
30 Day Payment
Deadline on PA WC Decisions is Not Extended by Request for Supersedeas on
Appeal
·
The Contradiction
The WC Act and the WC Regulations are contradictory on when an employer
must pay wc benefits following an Order/Decision of a Judge or Appeal
Board.
The statute requires payment within 30 days of an Order. The Regulations allow for a Request for Supersedeas
on appeal, allowing the claimant 10 days to Answer the Request, and the Board
20 days to rule on the Request.
Accordingly, unless the request is filed on the same date of the Judge’s
Decision/Order, the deadline for the Board’s ruling on the Request is after the
deadline for payment. The implication
of the Regulations is that a Request for Supersedeas on appeal would extend the
payment deadline at least to 30 days after the filing of the Supersedeas
Request.
·
Commonwealth Court Decision
The Commonwealth Court acknowledged the inconsistency in the Regulations
and the Act, but held that the Employer must make payment 30 days after an
Order of a Judge or Appeal Board. The
only exception would be where the Board or Commonwealth Court granted
supersedeas before the 30 days had elapsed.
The employer here was assessed a penalty and attorney’s fees for not
paying within the 30 day deadline.
·
Recommended Pre-emptive Strategy
Accordingly, where an employer wants to appeal a Decision that grants
benefits to a claimant, the determination to appeal must be made immediately
following receipt of the Decision. The
employer does not have the luxury of filing the Appeal and Supersedeas Request
at the end of the statutory deadline of 20 days, but must file as soon as
practically possible in order to increase the chance that Supersedeas will be
granted before the payment deadline arrives.
The Board is permitted to take up to 30 days to rule on Supersedeas, but
often takes less time to do so.
Hoover v. WCAB (ABF Freight Systems) 2003 WL 1738500 (Pa. Cmwlth. 2003)
Vocational
Interviews can be Compelled on all PA WC Claims, Regardless of Date of Injury
The
PA Supreme Court Denies Claimant’s Appeal in Rauch
When the WC Act was amended in 1996, employers were permitted for the very first time to file a Petition to Compel a vocational interview, when a claimant refused to attend the interview. This legal tool aided employers in more effectively pursuing vocational evidence to prove an earning capacity and thereby reduce the claimant’s wage benefits through a Modification Petition.
In 2002, the Commonwealth Court in Rauch v. WCAB (Kids Wear Services, Inc.), 2001 WL 31119443 (Pa. Cmwlth. 2002) determined that the employer was permitted to use this Petition to Compel, even on cases with a date of injury prior to the passage of the 1996 amendments.
The claimant in Rauch appealed that Decision to the Pennsylvania Supreme Court. The Supreme Court has denied the appeal, thereby strengthening the prior Rauch decision.
Rauch v. WCAB (Kids Wear Services, Inc.) 816 A.2d 1103 (Table) (Pa. 2003)
Blondes are
Not a Protected Group under Title VII
A Caucasian Moldavian blond brought a hostile work environment claim and
other claims under Title VII and the PHRA alleging discrimination on the basis
of race, sex, religion and national origin.
She alleged that her supervisor commented on her hair color, the only way
to tell a natural blond, and what people say about blondes, among other
comments.
A necessary element of a hostile work environment claim is intentional
discrimination. The Court found that
the alleged comments may be viewed as offensive, disparaging and in poor taste,
but they were insufficient to prove that any action was motivated by gender,
race, religion or national origin. The
court noted specifically that being blonde is not a protected group under Title
VII.
Based on this and other deficiencies in the plaintiff’s case, the Court
granted the employer’s Motion for Summary Judgment, and the plaintiff’s
complaint was dismissed.
Shramban v. Aetna,
2003 WL 21195439 (E.D.Pa. 2003)
Who is an “Employee” for ADA
The US Supreme Court Adopts a
Common-Law Definition Focusing on the Employer’s Control
An employer defended an ADA claim, arguing that it did not have 15 or
more employees, and was therefore not covered by the ADA. In short, if the 4 physician-shareholders of
the employer medical clinic were counted as employees, then the number of
employees would be greater than 15 and the employer would be subject to the
ADA.
The ADA definition of “employee” was no help at all in the Court’s
determination.[1] The US Supreme Court accordingly held that
the common-law definition of employer should be applied. That definition focuses on the employer’s
level of control over the individual, and includes the following 6 factors:
1)
Whether the
organization can hire or fire the individual or set the rules and regulations
of the individual’s work;
2)
Whether, and if
so, to what extent the organization supervises the individual’s work;
3)
Whether the
individual reports to someone higher in the organization;
4)
Whether and, if
so, to what extent the individual is able to influence the organization;
5)
Whether the
parties intended that the individual be an employee, as expressed in written
agreements or contracts;
6)
Whether the
individual shares in the profits, losses, and liabilities of the organization.
The Court accordingly remanded the case back to the Court of Appeals to
use this standard to determine whether the physician-shareholders were
employees for the purposes of the ADA.
Clackamas Gastoenterology Associates v. Wells, 2003 WL 1906297 (U.S. 2003)
Refusal of an Employee’s Request for Transfer is not
Necessarily an Adverse Employment Action
No Basis for a Title VII Claim
Soon after an employee accepted an INS position in New York City, he
moved to Northeast Philadelphia, and commuted to New York daily. When he heard of an INS opening in
Philadelphia 4 years later, looking for “experienced INS attorneys,” he applied
for the position. The position was
filled by an attorney under the age of 40 with no prior experience in
immigration law. The 48 year old New
York commuting employee with 4 years experience and excellent performance
reviews was not even given an interview.
The 48 year old employee sued in part, under the Age Discrimination in
Employment Act (“ADEA”), alleging
discrimination based on his age. Part
of his evidence included an email from one INS official stating in part “I am
particularly concerned that some of your older [trial attorneys] may not be
able to meet the physical fitness standards . . .” and suggested that the
plaintiff and another attorney be denied use of the elevator, and be placed on
a physical fitness regimen.
The critical issue in this case was whether the refusal to transfer the
plaintiff to Philadelphia could be a “materially adverse employment decision,”
necessary for a successful ADEA claim.
Here, the pay, duties and benefits of the Philadelphia job would be the
same as the New York position. The only
difference between the two positions was the claimant’s commute. The Court found that this adverse effect arose solely from the employee’s individual
preference, and was not job-related.
The reason the employee had such a long commute was solely due to
claimant's choice to move to Philadelphia in the first place. An employer has no control over the distance
of an employee’s commute.
Accordingly, the Court held that the refusal to transfer the employee to
Philadelphia was not an “adverse employment action within the meaning of the
ADEA. The employee’s case was dismissed
by Summary Judgment.
Fallon v. Meissner,
2003 WL 1984696 (3rd. Cir. 2003)
