Thursday, August 15, 2013

Appellate Decision places Employee outside Scope of Employment

The Pennsylvania Workers Compensation Act defines the term "injury" to mean " an injury to an employee, regardless of his previous physical condition, arising in the course of his employment and related thereto...".

"Arising in the Course of Employment" includes injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer.
See Section 301 (c)(1), 77 P.S. 411(1).

The determination of the compensability of an injury will be made on a case-by-case basis, in light of the specific facts presented. In the recent past, we have reviewed several appellate decisions which broadly construed the scope of one's employment, on the basis that minor departures will not interrupt the course of one's employment.

Trigon Holdings, Inc v. WCAB (Griffith), No. 207 C.D. 2013 is a reported panel decision of the Commonwealth Court of Pennsylvania, authored by Judge Covey on August 7, 2013.
This decision is significant, in that the Court reversed the determination by the WCJ and WCAB that an employee was within the scope of employment at the time of his injury.

Factual & Procedural Background
Employee was a "gang leader" at a business which machine finishes medical and aerospace industry parts. His job was to ensure the machines were operating properly. He was required to examine the equipment, troubleshoot or get tooling for the machine operators, when necessary. He was not a machine operator.

He sustained an injury to his left thumb when it was drawn into a lathe, as he was polishing a bolt for his child's go-cart.
Employee filed a work comp claim petition. The WCJ awarded temporary total disability of 6 months until his return-to-work date. WCAB affirmed this award.

Employer appealed and argued it was an error of law to conclude that employee was in the course and scope of his employment, as the time of injury. Employee left his appointed duties, without the employer's knowledge or consent when he performed unauthorized work of a personal nature. Commonwealth Court agreed and reversed this award.

Commonwealth Court Reasoning
The Court reviewed the Section 301(c)(1) definition of a compensable work injury.
The determination of the course and scope of employment is a legal issue.
At the time of his injury, this employee was not in the course of his employment.

The Court reviewed prior decisions where "momentary departures" did not remove the employee from his employment. Although the "course of employment" includes intervals of leisure or breaks for personal comfort, there is no fixed standard by which to make such a determination.
"As a result, the case law in this area appears to have made a clear and consistent application of law difficult and consequently, the standard has become somewhat strained". slip opinion page 7.

[ Citing The Baby's Room 2004 decision, where a delivery driver was awarded benefits for a traumatic brain injury sustained when he jumped to touch a basketball rim at a place of delivery and City of Newcastle 1988 decision where a co-worker was awarded benefits when he contracted a rare disease when he kissed a co-worker departing for maternity leave.]

Several facts were cited in the decision:
1. Employee was not injured when attending to his personal comfort, such as taking a drink or using the restroom.
2. The accident occurred after He actively disengaged himself from his work activities.
3. He did not inform his supervisors that he was leaving his assigned area.
4. He advised his co-workers he was leaving the area for a couple of minutes. This was after he made sure the employer's machines were operating properly. The tool room was approximately 20-25 yards away.
5. Employee was suspended for 5 days for violation of work rules, ie performing personal projects.

The Court concluded that Employee abandoned his work responsibilities and deliberately engaged in an unrelated activity, that was "foreign" to his employment.
Although the purpose of the Work Comp act is remedial in nature and intended to benefit workers, the Act "was never intended to make the employer an insurer of the safety of all employees".

Interestingly the WCJ made several pertinent factual findings, including:
a. it was general knowledge that employees used workplace equipment for personal tasks
b. Employee said, on the preceding day, his foreman made clear that he could go to the tool room, any time, to do personal work.
c. at times, supervisors would ask employee to perform personal jobs for them.
d. Employer witness testified he was unaware of any instance where employees performed personal work on employer's machines on employer's time. [IMO this is a very specific statement].

Practice Pointers:
1. This decision reflects the importance and significance of reviewing these scope of employment cases on a case-by-case basis. Experienced Work Comp defense counsel will be familiar with the prior caselaw decisions and provide an assessment of the facts presented and the proper application of these legal standards.
2. IMO this decision makes a specific distinction from the "personal comfort" cases, where a brief time departure or small deviation from one's work assignments, will not break the employment relationship. Although this employee was injured during a brief time departure, he was injured when he was doing a personal task, not a task to further the business of his employer.

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