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.
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).