Paula Robinson's Blog for Workers Compensation & Disability |

YOUR COMMUTE TO AND FROM WORK, IS IT COVERED UNDER WORKERS’ COMPENSATION?

The law in Pennsylvania, commonly referred to as “the coming and going rule”, holds that traveling to and from work is not in the course of employment. Mansfield Bros. Painting v. WCAB (German), 72 A.3d 842 (Pa. Cmwlth. 2013).  There are, however, exceptions to this broad ruling. Those exceptions are:

  • The worker has no fixed place of work.
  • The worker is on a special assignment for the employer.
  • The employment contract specifically included transportation to and from work.
  • Unique circumstances in that the worker was furthering the business of the employer.

(Source): Peterson v. WCAB (PRN Nursing Agency), 597 A.2d 1116 (Pa. 1991); Peer v. WCAB (B&W Constr.), 503 A.2d 1096 (Pa. Cmwlth 1986).

Here are some real life, practical examples of cases where commuting was found to be within the worker’s course of employment.  A medical doctor was required to travel between two fixed places, as part of her regular job duties. One day, while traveling between the two offices, she was injured.  The Court found that because her job required her to travel between the two offices, that she was within the course of her employment. Ruth Fam. Med. Ctr. v WCAB (Steinhouse), 718 A.2d 397 (Pa. Cmwlth. 1998).

Another example is that a Pennsylvania State Trooper was going to work on a motorcycle when another car making an illegal turn went right in front of him.  Because of the illegal turn, the Trooper was injured.  What made the court determine that the Trooper was in the course of his employment was that the Trooper testified that prior to the impact of the accident, he intended to arrest the person for the illegal turn.  Pennsylvania State Police v. WCAB (Dick), 694 A.2d 1181 (Pa. Cmwlth 1997).

Next are some examples of where commuting was not within the scope of employment or the workers’ employment terms did not include transportation.  A worker for a painting company was sent to work on one, and only one project for its duration, and therefore was found to have a fixed place of employment.  That worker sustained injuries while commuting from work, which were found not to work related. Mansfield Bros. Painting v. WCAB (German), 72 A.3d 842 (Pa. Cmwlth. 2013).

In the case of Fonder v. WCAB (Fox Integrated), 842 A.2d 512 (Pa. Cmwlth. 2004), the worker fell asleep at the wheel on his way home after an exceptionally long shift to sleep, and get ready for his next shift.  Although he suffered work injuries from the motor vehicle accident, he did not qualify for benefits under any exception to the coming and going rule.

According to the case of Bechtel Power Corp. v. WCAB (Postlethwait), 648 A.2d 1266 (Pa. Cmwlth. 1994), the employee’s injury suffered while traveling home from work was not in the course of employment.  In this particular case, even though the employee had a per diem travel allowance, as provided by his union bargaining agreement, this was not enough to prove that transportation was indeed included in that contract.

Every case is different and unique, so the facts have to be reviewed and analyzed to determine whether a traveling injury is indeed covered by Pennsylvania workers’ compensation. It is best to consult an experienced workers’ compensation lawyer to help out in this regard.

 

Ethics of Claiming Income & Working Legally

If you follow our blog you may have seen the blog about bartenders and jobs that rely on tips for income. No only is it illegal to not report your tip earning, but you also run the risk of insufficient wage loss benefits in the event you have a work injury. Let us explain why it is so important.

In the state of Pennsylvania if you are employed by a person or company you are required by law to carry workers’ compensation insurance. Here is a quote from the first page of a downloadable PDF from the Department of Labor & Industry in Pennsylvania:

“ Workers’ Compensation (WC) is mandatory, employer-financed, no-fault insurance which ensures that employees disabled due to a work-related injury or disease will be compensated for lost wages and provides necessary medical treatment to return them to the workforce.

The workers’ compensation system provides an “exclusive remedy” to employers and employees and is designed to simultaneously achieve the goals of safer workplaces, prompt compensation and treatment of those it protects and reduced litigation costs to all parties.”

[If you are unsure if you are required to carry insurance or be insured click here to review the PA.gov website.]

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When It Pays to Complain

Workers’ Compensation case law helps lawyers help their clients, and the case of Gahring v. WCAB (R & R Builders and Stoudt’s Brewing Company), 128 A.3d 375 (Pa. Cmwlth. 2015) is a perfect example.  In this case, the injured worker (Claimant) first worked for R and R Builders where he suffered a low back injury resulting in disc herniations at two levels of his spine.  He settled his case with R and R Builders and their workers’ compensation carrier.  Some eight years later he went to work for Stoudt’s Brewing Company as a line cook, and the next year began to experience increased back pain, which then led to surgery the year after that.  The Claimant argued that the second employer was responsible for his back pain because he had to work increased hours, and most importantly gave sufficient notice of a repetitive traumatic injury to his low back because he complained over time to his supervisor, putting them on notice that this new work as a line cook was aggravating his prior work injury.

At the initial level of litigation before the assigned Workers’ Compensation Judge, the Judge did not hold the first employer liable, ruling that the aggravation of Claimant’s back condition occurred while Claimant was working for the second employer, but also ruled that the second employer was not liable because Claimant did not give timely notice of the injury.  The case was appealed all the way up to the Commonwealth Court of Pennsylvania, and the Court agreed with the Claimant.  The Court specifically ruled that because the Claimant complained overtime to his supervisor about his increased duties and work hours, that this indeed was timely notice and therefore ruled in the Claimant’s favor.

The bottom line is that if you are hurting from a work injury, you should say something and not feel bad or guilty about it.  Although you might think that it can be controversial, it is actually your responsibility to give notice to your employer of a work injury, or you could jeopardize receiving well deserved workers’ compensation benefits.

 

Cashing Out as a Bartender – It Pays

“It’s five o’clock somewhere!” a popular expression among adults after a long day or heading into a weekend. In America, globally for that matter, it is not uncommon for people to gather at local watering holes, aka a bar or pub, for happy hours, a quick drink and other social activities. To help business, many establishments have added themed nights like trivia night, dart tournaments, discount specials and more.

It is also known that good bartenders can make really good money in tips, especially on a busy night. This is where things can get tricky in the “tipping” industry. There are many jobs that pay minimum wage or even less and the rest of the income is tip based, therefore in order to make a decent living, one would rely heavily on tips. Keep in mind it is required by law that one claims all tips whether cash or via credit cards when you ‘clock out’ at the end of the day or night.

It is likely you know of someone that has ‘pocketed’ some of those tips without claiming them as income to avoid paying taxes. Yes, it is illegal, however it still happens. What people may not realize as a successful bartender or any tip related professional is that if they do not fully claim their wages and a work injury occurs there is no way to get appropriate wage loss benefits you should be earning.

Granted, one might not think bartending is a dangerous or high risk of injury job, but accidents do happen. Especially when you step back and look at the potential risk factors as a bartender it is not so glamorous avoiding those wet floors, broken glass, unruly patrons and more. Remember, no one plans for a work injury but if it happens you want to be protected.

Remember to tip your bartender – they count on it!

Pennsylvania Requires Employers to Obtain Workers Compensation

To most Americans, quality of life is very important. We strive for this image of work and life balance that we must attain. While there is no magic answer to that balance, peace of mind can be a big relief when it comes to workplace safety.

The Commonwealth of Pennsylvania requires employers to carry workers’ compensation insurance. This is for the protection of the employer and employee should the employee be hurt while on the job. Workers’’ compensation benefits provide Pennsylvania workers coverage for both medical benefits and wage loss due to a work injury.

In Pennsylvania, all employers of one or more employees are required to carry workers’ compensation insurance. A small price to pay for peace of mind should something happen on the job – medical and wage loss benefits. If you are an employee in the Commonwealth of Pennsylvania, speak to your employer as to who their workers’ compensation carrier is – it is required.

Reporting Obligations of the Injured Worker

So, you are hurt on the job in Pennsylvania.  Do you have any obligations to the workers’ compensation carrier who is paying your wage loss and medical benefits?  The answer is “yes”.  The carrier for your employer is entitled to know your status on several different issues, which we will cover, because they are paying you money and want to monitor your case.  The PA Workers’ Compensation Act makes the rules about the obligation to report receipt of certain benefits or changes in status, and has easy to complete forms to do so.

Once the forms are sent to you, the injured worker, you have thirty (30) days to complete, sign, date and send them back to the workers’ compensation carrier.  If you do not send them back within the thirty (30) days, you could face serious consequences, including suspension of your wage loss benefits or worse yet, proceedings under the fraud provisions of the PA Workers’ Compensation Act. Simply put provisions are rules within the law.

Typically, there are three (3) forms, referred to as LIBC (Labor and Industry Bureau of Compensation) forms that are sent as a packet by the workers’ compensation adjustor. These are the Employee Report of Wages (Other Than Workers’ Compensation Benefits Received); Employee Verification of Employment, Self-Employment, or Change in Physical Condition; and the Verification of Employment/Self Employment.  

They want to find out if you are receiving any other wages or have another source of income, because if so, then the workers’ compensation carrier is entitled to a credit equal to what other income you received.  Also, if you are doing something to earn wages, other than your workers’ compensation benefits, that might mean that you really are not disabled any longer, and the carrier might take steps to try and stop your receipt of benefits.  When you receive workers’ compensation wage loss benefits, always remember that you cannot receive wages from any employment, as this is fraudulent and could also lead to serious consequences, such as having to pay the money back to the workers’ compensation carrier and prosecution.

The benefit of being represented in a workers’ compensation case is that your attorney can help you in filling out the forms and getting them sent back timely to keep you in compliance and receiving your deserved benefits. 

OSHA’s Top 10 List for Violation in 2016

Graphic Products put out an OSHA list of top 10 work place violations to the public, for that list click the link below.  As a workers’ compensation attorney, I am not surprised to see these particular injuries listed.  If I had my pick, my top three, based on my 29+ years of experience would be Fall Protection, Powered Industrial Trucks, and Machine Guarding.

 https://www.graphicproducts.com/guides/top-10-osha-violations-of-2016/

Pennsylvania’s Version of the 10 Most Deadliest Jobs

A recent article put out by Forbes listed the 10 most deadliest jobs in America.  All of the jobs are also performed in Pennsylvania.  These include landscaping, lawn service and grounds keeping; electrical power line workers; agricultural workers; truck drivers, including drivers and sale workers; metal and steel workers; trash collectors; roofers; aircraft pilots; fishing workers; and logging workers.

Out of these jobs in PA, transportation, including truck drivers, drivers, and sale workers, had the highest reported amount of injuries in 2015, with 12,318.  The lowest of these is the fishing workers, with only 6 reported injuries in 2015.  Also, worth noting is the category of “manufacturing”, including all subcategories reported 22,291 injuries according to the 2015 Annual Report by PA Workers’ Compensation and Workplace Safety Report.

To see the article with video, click this link.

Which Court do I go through for my Workers’ Comp Claim?

According to the PA Workers’ Compensation Act and Regulations, and Statutes, an employee is not permitted to sue his or her employer.  Filing a workers’ compensation claim is the way to pursue a claim against the employer for a work-related injury.  There is, however, an exception referred to as the dual-capacity doctrine that permits the employee to sue his or her employer in civil court. If that employer operates in a capacity with duties and responsibilities that are separate and apart from the employee-employer relationship the dual-capacity doctrine can be enforced.

A fairly recent case, Neidert v. Charlie, III, _A.3d__(Pa. Super., 1903 EDA 2015, 2841 EDA 2015, filed June 29, 2016), explored the dual-capacity doctrine, where the injured worker not only had a workers’ compensation claim, but also tried to sue his employer in a civil suit alleging that the employer was also the building owner, and therefore, in a dual capacity. Simply put, dual capacity means the person being sued acts as both the employer and business owner, therefore is being sued twice. In this case, the Pa. Superior Court disagreed with the injured worker and would not permit the civil lawsuit to proceed.

Here is a brief explanation of the Neidert v Charlie, III dual-capacity case:

In this case, the employee, Neidert was injured while working, when he was using a door in the floor of the building owned by the employer, who was the sole owner of the business that operated the Pub, where the employee was hurt.  There was no disputing that there was a work injury, the employee received workers’ compensation benefits, and even a settlement payment for his workers’ compensation case.  The employee then filed a complaint in civil court, arguing that he suffered an injury as a “bar patron”, falling through a trap door in the floor, as a result of the employer’s negligence.  Read More

Do Superheroes Need Workers’ Compensation?

If you’re familiar with Marvel and DC then chances are you know about superheros.  Superheros have been all the craze in recent years as major blockbuster movies have been released. The Avengers, Batman vs Superman, Antman, and many others that emphasize superheros in today’s modern world.

The storylines often cross movies and although fictional it can be fun to follow along.  Being a

superhero is a pretty cool job… saving the world from “bad guys”, aliens, and evil.  But like most cool jobs aka “hands-on” there comes risk.  But how many superheros actually get hurt?  The Hulk can fall from a 100 stories, and get shot then spit out bullets.  Tony Stark, aka Ironman, is in a suit and only seems to walk away with scratches and bruises after a battle.  

Hypothetically who covers workers’ compensation for superheros?  Not many superheroes work for someone.  Unless you’re an Avenger then technically you work the government.  In that case would the government would cover workers’ compensation?  What if Bruce Wayne or Tony Stark get hurt on the job?  Can they file a worker’s comp claim with Wayne Enterprises or Stark Industries? Read More

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