Employer Forced to Pay
WC Settlement to Deceased Claimant
In Department of Corrections v. WCAB (McClellan), -- A.2d --, 2002
WL 448485 (Pa. Cmwlth. Ct. 2002), the Claimant testified in support of a
Compromise and Release settlement (“C&R”) by telephone from a hospital
room. In the course of his testimony,
the defense attorney did not ask questions regarding the Claimant’s medical
condition. Several hours later, the
Claimant died. At 7:15 AM the next
morning, the Judge (not knowing the Claimant had died) circulated his Decision
and Order approving the C&R.
The Employer attempted to nullify the C&R on the basis that
claimant’s counsel had made material misrepresentations regarding the
Claimant’s health. This was clearly an
attempt to avoid paying the settlement.
The Court found that there was no evidence of fraud or concealment on the
part of the claimant’s attorney regarding the severity of the Claimant’s
condition. As all the prerequisites for
a valid C&R had been met, the Order approving it was affirmed, and the
Employer was liable for payment of the settlement monies.
ADEA and PHRA
do not Permit Third Party Retaliation Claims
ADA Does
Permit Such Claims
In Fogleman v. Mercy
Hospital, 2002 WL 415833 (3rd Cir. 2002), Plaintiff sued
employer Mercy Hospital under the Americans with Disability Act (“ADA”), the
Age Discrimination in Employment Act (“ADEA”) and the Pennsylvania Human
Relations Act (“PHRA”). He alleged that
Mercy Hospital terminated him because of his father’s age and disability suit
against the hospital, and because Mercy believed he aided in his father’s
litigation.
Regarding the first
allegation, the 3rd Circuit Court of Appeals court held that
although the ADEA and the PHRA do not provide for such a “third party
retaliation claim,” the ADA clearly provided for same. The Court refused to read into the Statutes
an intent for such a claim where the Statute provided no such specific claim.
In the plaintiff’s second
claim, he argued that although he did not assist his father in the father’s
claim against the Hospital, the Hospital’s retaliation was based on its
perception that he was assisting his father’s claim. The third Circuit held that these statutes did support such a
“perception claim.” Accordingly, if the
plaintiff could show that Mercy retaliated against him because it thought he
was helping his father with the father’s claim, it would not matter if Mercy’s
perception was factually correct.
WC Claimant Tries
to Force a
$250,000
Commutation
on Employer
Before the 1996 amendments to the Pennsylvania Workers’ Compensation Act (“Act”), a “commutation” was the most utilized available for a resolution of wc benefits within the Act. The parties would typically agree on a given earning power, which would change the nature of the claimant’s benefits from temporary total disability (“TTD”) to temporary partial disability (“TPD”), with a statutory maximum of 500 weeks. The parties would then agree to a lump sum payment of the remaining 500 weeks of TPD benefits in a commutation of the remaining 500 weeks of TPD under section 316 of the Act.
In Christopher v. WCAB (Consolidation Coal Company, -- A.2d – 2001 WL 1805898 (Pa. Cmwlth. 2002), a claimant attempted to use the commutation provision of the Act in an aggressive and unilateral manner, trying to force the employer to pay a lump sum in excess of $250,000. The wc claimant had undergone an impairment rating evaluation (“IRE”), and was given an impairment rating of less than 50%. According to the Act, this IRE effectively changed the claimant’s benefits from TTD to TPD, with a statutory maximum of 500 weeks. The claimant used this change in status to file a unilateral petition for Commutation, arguing that his TPD benefits should be commuted in a lump sum totally over $250,00.
The Commonwealth Court upheld the Judge’s dismissal of the Petition, based on the determination that the claimant had failed to show that the commutation would be in the best interest of the claimant, as required by section 316 of the Act – The claimant failed to show the reliability of his planned investments, how he would live on a decreased monthly income, and could not satisfy the Judge that he would not “soon dissipate the commuted funds.”
The troublesome aspect of this Decision is that the Court’s published opinion forced almost exclusively on whether the claimant would make responsible use of the money. The court did not mention the fact that the claimant’s TPD benefits might not continue for the full 500 weeks, and the TPD rate was not fixed forever; That the employer could file a Petition at any time to prove an increase in earning power, thereby reducing or completely suspending the claimant’s TPD benefits.
Funded Employment Dealt a blow in PA WC
WC Benefits
Reduced only During the Period Funded
In General Elec. Co. v. WCAB, (Myers) – A.2d – 2002 WL 361246 (Pa. Cmwlth, Mar 8, 2002), NO> 2116 C.D. 2001, 21,050), an employer tried to reduce its liability on a wc claim through a temporarily employer-funded position. Claimant was accordingly offered a position with Smart Telecommunications through Expediter Corporation. The position would be wholly subsidized by the Employer for the first 90 days.
The owner and president of Smart testified that once the period of subsidy hand ended, there was no guarantee of continued employment with Smart. The Claimant would need to meet Smart’s minimum productivity requirements or face discharge or reduced hours. The rate of pay following the period of subsidy could also be less. Finally, she testified that only one percent of employees referred from Expediter remained with Smart.
The Judge, Appeal Board and Commonwealth Court agreed that the testimony of the owner/president supported Claimant’s contention that the job offered was only a temporary position, limited to the period of the subsidy. Accordingly, the Employer was granted a modification of benefits for only that limited period.
“Violation of Order”
Defense Further Denied in WC
In Dennis Camino v. WCAB (City Mission, 2002 WL 575941 (Pa.
Cmwlth. 2002), Claimant suffered a work-related hand injury and was re-employed
elsewhere as a maintenance worker at modified duty through funding
employment. He then reported a new
injury to his back while performing that maintenance job, mopping a floor. The Employee alleged that Claimant had been
specifically directed not to mop the floor.
The Judge accordingly denied the Reinstatement Petition, concluding that
Claimant was not injured in the course and scope of his duties and in violation
of a direct order by the Employer.
The general rule is that while negligent behavior that results in jury is
Compensable, there is an exception for injuries resulting from acts in direct
hostility to, and in defiance of, positive orders of the Employer concerning
things unconnected to one’s employment.
The classic example is that if a train engineer runs through a red light
and is injured, he is eligible for benefits, but if someone with no job duty on
board the engine takes control and runs it through a red light and is injured,
benefits are denied.
A three-prong test is used to deny benefits for violating an order:
1)
the injury was
caused by the violation of the order or rule;
2)
the employee
knew of the order or rule; and
3)
the order or
rule implicated an activity not connected with the employee’s duties.
Here, the court held both that mopping the floor was so closely connected
to Claimant’s maintenance duties and, more importantly, that mopping is not a
dangerous activity. The Court noted
that the Supreme Court initially carved out this exception based on the
importance of an employer’s ability to control the workplace and to guard
against accidents by restricting the activities of its employee’s with regard
to dangerous areas or dangerous instrumentalities.
As this was not a case in which the Employee was ordered to avoid a task
that could be considered “dangerous” the court held that the line of cases
excluding Claimant’s from receipt of benefits for violations of orders against
dangerous, unconnected activities did not apply. The Judge’s Decision denying the Reinstatement was accordingly
vacated.
Job Availability Evidence
Permitted in the Course of
A Claim Petition
In Karin Bey v. WCAB (Ford Electronics), 2002 WL 1378581 (Pa.
Cmwlth. 2002) the Commonwealth Court specifically addressed the use of an
employee’s offer of a light duty job in the context of a Claim Petition. The Court held that under the Pennsylvania
Supreme Court Decision of Vista Int’l Hotel v. WCAB (Daniels), 742 A.2d
649 (Pa. 1999), an employer can use evidence of an offer of a modified
duty position in the context of defending a Claim Petition. While the Supreme Court did not explicitly
overrule the cases prohibiting such evidence, this Decision strengthened prior
Commonwealth Court Decisions leaning in the same direction. Given the dangers of using a Temporary
Notice of Compensation Payable, it might be a more effective strategy to simply
deny a Claim where the extent of disability is an issue, and have the employer
offer the claimant a modified duty position.
Post Return to Work Layoff-Automatic Reinstatement of WC Benefits:
In Allen Folk v. WCAB (Dana Corporation) 2002 WL 1592797 (Pa.
Commw. Ct. 2002), Claimant suffered a work injury but subsequently returned to
work at his pre-injury position. His
wage benefits were accordingly suspended.
He was then laid off and filed a Reinstatement Petition.
Case law has
previously established that where a Claimant receiving wc benefits returns to a
modified position at work with restrictions, and is subsequently laid off, the
presumption is that the resultant wage loss (i.e. disability) is causally
related to the work injury. Where a
Claimant returns to his regular pre-injury job without restrictions, and is
laid off, there is no such presumption and Claimant must prove that the wage
loss / disability is caused by the work injury. These presumptions are significantly in the litigation and
handling of these return to work cases.
Here,
Claimant returned to work under a 50 lb. Lifting restriction. That pre-injury position to which he
returned, however, did not require any lifting of over fifty pounds. Accordingly, the job did not have to be
modified in order for Claimant to perform it.
The issue, therefore, was whether Claimant, after being laid off, was
entitled to the causal relation presumption.
(i.e., had he returned to work “with restrictions” or not?)
The
Commonwealth Court held that if a Claimant’s time of injury job is within the
Claimant’s restrictions, and the Claimant returns to that job, it is treated as
though the Claimant had returned to work without restriction. Claimant is accordingly not entitled to the
presumption that the post lay-off disability (wage loss) is related to the work
injury. The claimant here accordingly
had to prove that the wage loss was related to the work injury, as he was not
entitled to the presumption of causation.
