Tuesday, August 19, 2014

Injury of the "Early Arrival" Employee and Scope of Employment

The Scope of the "Work Day"

The definition of a compensable work injury is specifically stated, yet broadly worded, so as to be subject to interpretation and meaning.

The Workers' Compensation Act definition of injury,  includes the requirement that the employee is injured "in the course of his employment". See: Section 301 (a).
 An "injury" is to be construed as one ..."arising in the course of employment and related thereto...".
See: Section 301 (c)(1).

From a non-lawyer point-of-view, one may believe the "work day" begins and ends with the "punching" of one's time card. Review of many workers' compensation appellate case decisions would quickly dispel that notion of simplicity. As often stated, "these cases are very fact-sensitive".

The case of the early arriving employee poses a question as to "When does the work day begin?"

This question was addressed in a recent decision of a panel of the Commonwealth Court of Pennsylvania authored by Judge Covey on June 10, 2014 at: Ace Wire Spring and Form Company v. WCAB (Walshesky), No 1916 C.D. 2014.

Factual and Procedural Background

WCJ awarded total disability benefits for the head injury resulting from a slip and fall on ice in the Employer's parking lot. On appeal, Employer argued that:
(1) Employee was not in the course and scope of his employment;
(2) Employee was not  furthering the Employer's business interests.

Note: this Employer did not question the parking lot as a part of the business premises.

Employee testimony reflects;
He arrived at the employer parking lot at 6:30 am for his 8:00 am work shift.
He arrived early to avoid traffic.
He went into the building. He retrieved clean uniforms and took them out to his car.
(so he would not forget them).
As he returned to the building, he slipped and fell on ice in the parking lot.
He went into the building, reported this incident to his general manager (Froehlich).
He stated Froehlich insisted he go and wash up.
He stated he believes he passed out in the bathroom.
He awoke in a nursing home, paralyzed on his left side.

Employer testimony from Froehlich reflects;
He arrived about 6:30 am and unlocked the doors between the office and plant.
Employee appeared with dry blood on his head. He said he fell, but could not remember where.
He advised employee he would take him to the hospital when the plant manager (Margo) arrived.
He did not tell employee to "clean up" nor did employee leave him to go to the bathroom.
Employee was lucid and did not have difficulty talking or walking.
He stated the incident could not have occurred as employee stated, as employee did not have a key to enter the plant portion of the building (before Frohlich unlocked the building).

Inventory manager Ellich stated;
He arrived about 6:30 am and employee was sitting in his car holding his head.
Employee said he fell. He observed dry blood. He walked employee into the building.
 He did not see employee thereafter.

Employee changed his prior testimony.
Now he stated he arrived at 7:30 am, not 6:30 am.
He recalled seeing the car of a co-worker (Larkin)..
He did not see Ellick.
The building was unlocked when he arrived.
Froehlich told him to go wash up.

Co-Worker Larkin testified he punched in at 7:47 am.
He was not in the parking lot at 7:30am.
He parked behind the building, it was not his car that employee described.

Employer testimony reflected Ellick punched in at 6:37 am.
Larkin punched in 7:47 am.
It appeared Ellick was the first to arrive and unlock the building.

Plant manager Margo stated when he arrived employee was sitting in the lunchroom.
He drove employee to the hospital. Employee was lucid and able to walk.

WCJ Decision- award of benefits

The WCJ is the fact-finder and rules on questions of credibility and weight assigned to the evidence.

The WCJ resolved the conflicting factual reports.

Th WCJ found Employee testimony to be more credible and convincing.
 (acknowledging employee may have faulty memory due to his injuries)

The WCJ found employee was furthering the business of Employer when he was injured.

WCAB Affirmed WCJ Award

Commonwealth Court Decision

Substantial evidence supported the WCJ finding employee arrived between 6:30 and 730 am.

As a general rule,once on the premises, getting to or leaving the work station is a necessary part of ones employment.

Even though not actually engaged in the employers work, an employee will be considered in the course of employment if injured a reasonable time before or after the work period.
citing: Allegheny Ludlum Corp. v. WCAB (Hines), 913 A.2d 345 (Pa. Cmwlth. 2006).
 THIS is the issue.

There is no bright-line test for assessing how long before commencement of the scheduled work day is a reasonable time for an employee to be furthering the employer's interests. slip opinion page 13.

In analyzing the past cases the Court noted it seems the exact amount of time does not appear to be as important as the claimant's purpose or activities during that time. (Agreed!).

The WCJ found employee arrived between 6:30 am [90 minutes before] through 7:30 am [30 minutes before] his work shift. There was evidence in support of this finding.
Employer did not conclusively establish employee arrived 90 minutes before.

Court: the employer did not establish employee arrived an unreasonable amount of time before his work shift.(... but I thought employee's activities were the important consideration?)

... there was no credible evidence that employee abandoned his employment
... engaged in something entirely foreign to his employment
... or acted contrary to any positive work orders ...

***The fact that employee collected his employer-provided uniforms and put them in his car ... does not place him outside the scope of his employment.

Employer argued the WCJ did not author a "reasoned decision" as all of the evidence supports a finding employee arrived 6:30 am.
No, the WCJ  resolved this conflicting point ... in employee's favor.
The WCJ decision adequately explained the WCJ reasons for this finding.

The reasoned decision requirement is simply that the WCJ must articulate some objective reasoning to facilitate appellate review. citing: Green v. WCAB (US Airways), 28 A.3d 936 (Pa. Cmwlth. 2011).
This was accomplished.


1. This decision illustrates the lengths to which simple rules of law can be altered by a "act-sensitive" analysis of scope of employment and premises issues.
The appellate record reflects a great deal of factual information
... sometime it seems that we deal in minutia, which has a disproportionate impact upon the result.

2. I agree with the premise that it is more appropriate to examine the purpose or activity of the claimant in the early arrival injury claim.

3. The exact amount of time of the early arrival, should not be as significant of a factor for a course of employment analysis ...
BUT logically, at some point in time, the claimant will be so early or so late, that it is difficult to make a reasonable argument that the claimant's presence has anything to do with the remote start or remote end of a work-shift ...  and has more to do with the personal decisions of the claimant ... WHY is he/she there?

4.  Once again we emphasize ...Employers get your workers' compensation professionals involved in the early part of the injury claim investigation.
The identification of witnesses ... the identification of undisputed facts ... and the identification of claimant's version of events, are all necessary components of a successful workers compensation defense.

Question: where his uniforms in his car? ... there always seems to be one more question ...

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