Andrea is a member of the Workers' Compensation Department and concentrates her practice in the defense of employers and self-insureds in all manner of workers' compensation matters. She represents employers in many industries, including retail services, banking, construction and manufacturing, in addition to assisted living facilities and religious organizations.
In 1999, Andrea earned her Bachelor of Arts degree from American University. Following her time in Washington, Andrea returned to the Philadelphia area and received her juris doctor from Widener University School of Law in 2002. Andrea is licensed to practice in Pennsylvania, New Jersey and the U.S. District of New Jersey.
Results
The Commonwealth Court Stands Firm on Employer Credit/Retroactivity
The Pennsylvania Commonwealth Court ruled in favor of our employer client, holding that it was error to “erase” the 500-week employer credit provided by Act 111 for partial disability benefits paid beginning in 2008, and that the claimant’s 2019 reinstatement to total disability status did not retroactively convert those prior partial disability benefits into total disability benefits. The claimant’s work injury, a contusion to the low back, occurred in 2006. Based on the results of a 2008 IRE that assigned a zero percent impairment rating, the claimant’s benefits were modified from total to partial. The employer filed a Notice of Change of Workers’ Compensation Disability Status, which was not challenged by the claimant. Following the Supreme Court’s decision in Protz, however, the claimant filed a modification petition in 2018, seeking reinstatement of his total disability benefits. The petition was granted, and it was noted at the time that the claimant had not exhausted his 500 weeks of partial disability. The employer filed a petition for modification, based on the results of a December 2019 IRE performed on the claimant, that was granted by the Workers’ Compensation Judge. The IRE was performed pursuant to Act 111. The parties cross-appealed, and the claimant took the position that Act 111 cannot be applied retroactively to injuries sustained prior to Act 111’s October 24, 2018, effective date and that Act 111 constituted an unlawful delegation of legislative authority. The employer cross-appealed the judge’s failure to award a 500-week credit and to suspend the claimant’s benefits. Citing prior cases that consistently held that Act 111 applies retroactively with respect to a calculation of a claimant’s weeks of partial disability paid prior to the effective date of the Act, the claimant’s appeal was dismissed. The employer prevailed on its cross-appeal and the Appeal Board’s order was reversed to the extent that it denied a credit for the previously paid weeks of partial disability.
Defense limits liability to 14 months of benefits.
The claimant filed a claim petition alleging that she sustained a contusion to the back of her head, a concussion, bilateral shoulder pain and neck pain. The judge found the claimant credible and that an incident did occur in the course and scope of her employment. However, the judge also found the employer’s medical expert credible. The employer’s medical expert found that the claimant was fully recovered as of the date of the Independent Medical Examination. This limited the receipt of indemnity and medical to fourteen months, rather than an ongoing claim.
Thought Leadership
Defense Digest
No Fixed Place of Work: An Exception for Your Workers’ Compensation Claim
December 1, 2024
Key Points: If an employee is furthering the business interests of the employer, even an injury sustained off the employer’s property can be considered compensable. The burden of proving that an injury was sustained in the course and scope of employment is very fact specific. Cases where the claimant was injured off the employer’s property should only be accepted if convinced the claimant was in the course and scope of his employment. Determining whether an injured worker was within the scope and course of his employment at the time of an injury is often a difficult decision to make, as these cases are based on the specific set of facts involved. On August 9, 2024, the Pennsylvania Supreme Court agreed to review a Commonwealth Court decision which found there was no exception to the coming and going rule as it applied to the claimant when he was involved in a motor vehicle accident while driving home from work. While we wait for the Supreme Court’s final decision, it is worth reviewing the legal conclusions made by the Commonwealth Court. Injuries sustained during an employee’s commute are not compensable because the employee is neither on the employer’s premises nor engaged in the furtherance of the employer’s affairs. Peer v. Workmen’s Compensation Appeal Board (B & W Construction), 503 A.2d 1096, 1098 (Pa. Cmwlth. 1986). However, there are exceptions to this rule. An injury sustained during an employee’s commute to or from work can be compensable where any of the following apply: the employment contract included transportation to and from work; the employee had no fixed place of work; the employee was on a special assignment for the employer; or special circumstances are such that the employee was furthering the business of the employer. Bensing v. Workers’ Compensation Appeal Board (James D. Morrissey, Inc.), 830 A.2d 1075, 1078 (Pa. Cmwlth. 2003) (quoting Bradshaw v. Workmen’s Compensation Appeal Board (Bell Hearing Aid Center), 641 A.2d 664, 666 (Pa. Cmwlth. 1994)). In Jorje Martinez v. Lewis Tree Service (WCAB), 310 A.3d 327 (Pa. Cmwlth. 2024), the Commonwealth Court affirmed the workers’ compensation judge’s decision denying the Claim Petition, finding the claimant’s injuries were sustained while commuting and, thus, were not compensable. The claimant worked as a crew leader in the employer’s tree-trimming business. While driving home in his personal vehicle at the end of his workday, he was involved in a motor vehicle accident and sustained injuries. He filed a Claim Petition, asserting he was a traveling employee with no fixed place of business and that his injuries were compensable, despite not occurring on the employer’s premises. The claimant explained, every morning he left his house, drove his personal vehicle to the yard where the employer’s trucks were parked, got into one of the work trucks, and then drove to various work sites. At the end of the day, he returned to the yard and picked up his personal vehicle for the drive home. He explained that the employer did not have a fixed and permanent yard since it changed several times per year, depending upon the circuit the company was working. The employer presented fact witness testimony to explain that it does not compensate employees for their commuting time or expenses, it does not own the yards where they are headquartered for any particular period, and on the day of the accident, the claimant was assigned the job of moving the employer’s trucks and equipment from one yard to a new yard. The workers’ compensation judge denied the Claim Petition, concluding the claimant was not in the course and scope of employment. In that decision, the judge credited the testimony of the claimant and the employer’s fact witness, noting they were in agreement on every critical point of the analysis. The judge found that the facts placed the claimant outside of the course and scope of employment when the accident occurred because he was commuting from work. The claimant appealed, and the Workers’ Compensation Appeal Board affirmed the judge’s decision. They found that the claimant’s evidence did not establish any of the exceptions to the coming and going rule. To the contrary, the claimant reported to work at a fixed location. The claimant appealed to the Commonwealth Court, arguing that he established he was a traveling employee and was entitled to a presumption that he was in the course and scope of employment while driving home from work. The Commonwealth Court focused on the fact that the claimant’s evidence did not establish that he was a traveling employee without a fixed place of employment. Most importantly, the claimant was not furthering the business of his employer while commuting home in his own vehicle from the yard where he began his workday. The court found the claimant reported to the yard, where the truck and equipment needed to trim trees were stored. He then traveled to the location of the tree trimming job. He drove his personal vehicle, not the employer’s vehicle, to and from his home, and his workday started at the employer’s yard, not at his home. Further, the claimant was not reimbursed for travel expenses and did not store equipment at his home. The claimant had a fixed place of work, albeit one of short duration. Thus, a job that takes place in more than one location during a workday does not make one a traveling employee. The claimant took a further appeal to the Pennsylvania Supreme Court, which is now awaiting a decision on the merits. The ruling by the Commonwealth Court provides guidance to carriers that a thorough investigation must be undertaken when a claim is reported. Furthermore, since these cases are driven by the specific facts, it is often times the best practice to deny the claim and force the claimant to meet his burden of proving that the injury occurred in the course and scope of employment. *Andrea, a member of our Workers’ Compensation Department, is a shareholder and works in our Philadelphia, Pennsylvania, office. Defense Digest, Vol. 30, No. 4, December 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
When Filing a Petition Can Result in an Award of Attorney Fees
October 6, 2022
It is important to examine the portions of the Pennsylvania Workers’ Compensation Act (act) that influenced the court’s decision and what attorneys on both sides can do to protect their clients. It is also important to look at how the decision of the court could potentially be expanded.
