Workers’ Compensation Update

Pennsylvania Workers’ Compensation Update

The Pennsylvania Workers’ Compensation Act takes away from employees their right to sue their employers for injuries that they suffer in the “course and 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 the employee’s entitlement to benefits.

Two recent cases highlight the impact of the Act’s strict application of the concept of employment. In the first case, a woman was injured while in the process of applying for a job. The woman applied for a position as a food server at a retirement home. After she filled out a written application, she was directed to go to a medical office in the retirement home for a test for tuberculosis. The nurse performed the test, which consists of an injection of a small amount of a 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 the interviewer told her she had the job as long as she passed the tuberculosis test. She claimed that she was hired 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 hearing that the woman eventually was hired by the retirement home, but not until she completed a full process of signing a federal W-9 form, filling out a form identifying her vehicle, undergoing a full background check and submitting to drug testing. The tuberculosis 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 wasn’t actually 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 of $128.50 per day regardless of the number of hours he drove. The bus driver further claimed that the company paid a higher flat daily rate for trips from the particular bus yard he worked from, because it was not a popular yard among the bus drivers due to its location. Claiming that the increased flat rate took into account the drivers’ 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 denied 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 workers’ compensation law has, for many years, included the “coming and going rule.” The “coming and going rule” provides that injuries sustained on the way to or from the job are compensable only if at least one of four factors exist. Commuting is considered working if 1) there is an employment contract that includes compensation for transportation to and from work, or 2) if the employee has no fixed place of work, or 3) if the employee is on a special assignment for the employer, or 4) if special circumstances exist showing that the employee’s coming and going was 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 an 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 if the employee’s commute is compensable time. In order to limit workers’ compensation exposure, employers should structure employee’s duties and work locations with the “coming and going rule” in mind.

Cites

Moberg v. WCAB, 995 A.2d 385 (Pa. Cmwlth. 2010)(applicant not an employee); Leisure Line v. WCAB, 986 A.2d 901 (Pa. Cmwlth. 2009), appeal denied, 12 A.3d 372 (PA 2011)(coming and going rule).

Licensing Engineers in Pennsylvania

Licensing Engineers – Right to Take Exam Denied

Pennsylvania law includes numerous restrictions on people who work in “professional” occupations. The jobs included in the regulatory laws include barbers, realtors, funeral directors, engineers, architects, psychologists and almost every health care provider from nurses to veterinarians. The Pennsylvania Bureau of Professional and Occupational Affairs (the Bureau) has broad authority to license, supervise and suspend individuals working in the regulated occupations.

Engineering Graduate Denied Opportunity to Take Exam

A Pennsylvania college graduate recently succeeded in challenging the Bureau’s order barring him from sitting for the state examination for licensing as an engineer. See Whymeyer v. Commonwealth, Bureau of Professional and Occupational Affairs, et al., 997 A.2d 1254 (Pa. Cmwlth. 2010). The graduate attended the University of Scranton, a well-respected private university in Pennsylvania. He completed the university’s four year engineering program, earning a bachelor of science degree in electrical engineering and graduating with the highest honors, magna cum laude.

But when he applied to take the Pennsylvania state test for his engineering license, he was denied the opportunity even to take the test. The Bureau rejected the graduate’s application because the university’s engineering program was not approved by the state. The Bureau noted that state regulations require that candidates for the state engineering license test must first attend an approved four year engineering curriculum. The University of Scranton did not appear on the approved list.

Several deans from the university testified at the hearing on the graduate’s appeal to force the Bureau to permit him to sit for the test. They described the university’s rigorous engineering curriculum and noted that the university’s students performed well in intercollegiate engineering competitions. They also described the obstacles to securing state approval. The Bureau did not conduct its own approval process, instead it deferred the approval authority to the Accreditation Board in Engineering and Technology (ABET), a national, private entity. The university deans described an onerous process it had twice followed, over a period of 10 years, to secure the ABET approval. Despite their successful engineering program and course content, the ABET had denied the university approval on the ground that it did not have sufficient full-time faculty in the program. Noting that another application to the ABET would require the full time attention of one of the program’s eight professors for an entire year, the deans advised that they could not afford to apply again.

After the hearing, the Bureau’s hearing board denied the graduate the right to take the test, finding that its regulations must be met by all candidates. But the graduate promptly appealed the decision to the Pennsylvania Commonwealth Court, and the graduate prevailed. The Commonwealth Court found that the Bureau was not entitled solely to rely on the ABET for the approval of engineering programs. Emphasizing the fact that Pennsylvania and other state high school graduates chose engineering programs from accredited universities without thinking to review the Bureau’s approved programs, the Court found that the Bureau has both broad authority and a broad obligation to approve schools whose quality of education is satisfactory. Concluding that the Bureau is obliged to exercise its independent judgment and to evaluate responsible engineering programs itself, the Court ordered that the Bureau permit the graduate to sit for the exam.

Before embarking on a course of study for any occupation or profession, it is wise to fully examine the licensure process as well as the educational requirements. Had the graduate failed in his effort to gain access to the test, he may have had an actionable claim against the university for its failure to advise him clearly of its status with the Bureau. But succeeding in such a lawsuit would only result in a damages award; it would not result in his winning an engineering license. To learn more about the Bureaus’ authority over licensed businesses and professions, go to www.licensepa.state.pa.us.