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Judge's determination that the claimant was not within the scope of employment when injured while undergoing tuberculin test as part of the hiring process is upheld.

October 1, 2010
Moberg v. WCAB (Twining Village), No. 1767 C.D. 2009; filed March 17, 2010; by Senior Judge Flaherty

The issue in this case was whether the claimant was within the scope of employment when she had an adverse reaction and fell while undergoing a tuberculin test required as part of the application for work with the employer. The Judge found that the claimant was a mere applicant and still going through the process of hiring at the time of her injury and, thus, did not enter into an employment relationship with the employer. In upholding that finding, the Commonwealth Court noted the inconsistent testimony between the parties and affirmed the judge's determinations of the credibility of the witnesses. Among the key findings that supported the judge's decision were that the claimant did not produce a contract of employment, despite her claim to one; her testimony that the employer did not hire her until one month after the test; and the employer's requirement that the applicant had to complete various forms, submit to drug testing and go through a two-part tuberculin test (she was injured on the first part). In rejecting the claimant's argument that the test was a mere formality to begin working, the court found no error in the conclusion that the claimant was not an employee when injured.

Case Law Alert, 4th Qtr 2010

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