Friday, October 24, 2014

Work Injury AFTER a Voluntary Quit ... Work Comp or Civil Liability?

Is the Injured Employee always limited to the Workers Compensation Remedy?
Can an Employee sue the Employer?
If he/she sues ... is the work comp act a "defense" to the civil action?
... is that an Admission in a work comp claim?
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It has been said that remedies of the Workers' Compensation Act may be considered a "shield" or protection to the Employer from the financial exposure of Civil Litigation. In Workers' Compensation claims, an injured employee has a "limited" remedy against the Employer for wage loss and medical expense. There is no payment for "pain and suffering" or the "loss of consortium" of one's spouse.

At times the injured employee may attempt a civil action remedy. In one reported instance, the employee was on a sidewalk, when a trip and fall injury occurred. The employee desires the civil action remedy available to "a member of the general public". The employer wants the "protection" of the workers compensation act, with the avoidance of additional damages.
See: Gertz v. Temple University, 661 A.2d 13 (Pa. Super. 1995), where the sidewalk was considered part of the Employer's business premises and Employer avoided civil action damages. 

Does the Employer assertion of factual and legal arguments in that civil action, bind the Employer in the subsequent work comp claim?

... They may.

Marazas v. WCAB (Vitas Healthcare Corporation), No. 337 C.D. 2014, a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on August 11, 2014 addressed these issues. 

Factual and Procedural Background

Employee filed a civil action, seeking damages for injuries sustained when he was on the Employer business premises, allegedly as a "business invitee".

Employee worked with Vitas as a driver technician.
He delivered and picked up medical equipment and furniture.
He quit his job as a driver technician.

After he told his boss "he quit", his manager told him to remove his personal belongings from the work truck. His manager escorted him, as per company policy.
After removing his personal items, he tripped over a pallet jack.
Injuries involved the upper, middle and lower back, with the left ankle and knee.
His manager observed this trip and fall.

In the civil action, Employer asserted plaintiff was in the scope of his employment at the time of his injury. The Work Comp Act was his exclusive remedy.

Employee withdrew the civil action and filed a Work Comp Claim Petition!

WCJ Decision

WCJ awarded Employee temporary total disability benefits for a closed period.

WCAB Appeal of Employer

Employer argued Employee terminated the employment relationship prior to his injury, such that his injury was not covered by the Work Comp Act.

WCAB vacated and remanded, to assess whether Employee was within the scope of his employment at the time of his injury.

WCJ Remand Decision

WCJ admitted additional documents, including the Court of Common Pleas civil action documents.
In these pleadings, employer denied Plaintiff was a business invitee and admitted Plaintiff was its employee. 

WCJ found Employee quit before his injury BUT he remained in the scope of employment as he was "furthering Employer's business interests". He was injured where his employer directed him to go, to perform the requested task, when he was removing his personal belongings.

WCAB Remand Decision
Reversed WCJ award.

WCAB relied upon Little v. WCAB (B&L Ford/Chevrolet) 23 A.3d 637 (Pa. Cmwlth. 2011).
Employee quit before his injury. Injury occurred as a consequence of the final act of employment, therefore it was not compensable.

Commonwealth Court Arguments and Decision

1. Employer admitted Employee status in civil action pleadings. 
Employer is estopped from denying that fact in work comp proceedings. 
Did Employee waive this argument?

WCJ did not err in admission of civil action documents on remand. WCAB remand order did not preclude acceptance of additional evidence. This evidence was relevant to determining the remand topic - employment status.

Court rejected Employer argument that Employee waived estoppel argument by not raising it before the WCJ and WCAB in the first instance...
"we discern no merit in the waiver argument" slip opinion page 7.
[hmmm... so its OK to raise argument for the first time after remand].

The Court explained the doctrine of judicial estoppel:

"as a general rule, a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained. Accordingly, judicial estoppel is properly applied only if the court concludes the following: (1) that the appellant assumed an inconsistent position in an earlier action; and (2) that the appellant's contention was "successfully maintained" in that action."
 citing Canot v. City of Easton, 37 A.3d 53, 60 (Pa. Cmwlth. 2012).

As for the first element, the Court believed Employer position in civil action pleadings was inconsistent with work comp litigation. In the civil action proceedings, Employer admitted plaintiff was an employee "within the course and scope of employment" at the time of his injury.

Is there the second element of Judicial Estoppel, a "successfully maintained" position, where the civil action was withdrawn?
No. This element looks to the action of the decision-maker, not the action of the parties.  A statement of a prior inconsistent statement, in an adjudicated matter is not sufficient.
Judicial Estoppel did not apply to Employer's arguments.

2. Scope of Employment Arguments
Scope of Employment is a legal conclusion, to be made based upon a WCJ's factual determinations.

Here, the WCJ found Employee quit before his injury.
It was undisputed he remained on Employer's premises.
Employee was acting at Employer's direction, when he performed the removal of his personal belongings.

The term "arising in the course of employment" is a necessary element of the Employee proof of a compensable work injury.
This term has been construed to include injury:
- sustained in the furtherance of the business or affairs of the employer,
- sustained on premises occupied or controlled by Employer.

The act of going to or leaving the employee's work station is a necessary part of one's employment, thus furthering the employers interest. citing: Allegheny Ludlum Corp. v. WCAB (Hines), 913 A.2d 345 (Pa. Cmwlth. 2006).

The Court noted, more important than the temporal proximity of the injury to the claimant's shift, is the claimant's purpose or activity at the time of injury. citing: Ace Wire Spring & Form Co. v. WCAB (Walshesky) (Pa. Cmwlth. June 10, 2014).

Employer argued that Employee cannot be considered to be "within the scope of employment" after that employment has ended! [remember that voluntary quit thing...].

The Court distinguished the denial of benefits in Little v. WCAB (B&L Ford/Chevrolet), where a claimant had a heart attack at his residence, days after his last day of work.

Practice Pointers:

A.   This case highlights the necessity of the Employer team determining a litigation plan. Do we want to defend a civil action or a work comp claim? Can we defend both?

B.   Is claimant an "employee", who is no longer within the scope of any employment?

Logically I have difficulty with the concept that this Employee voluntarily quit, he terminated the employment relationship, BUT it furthers the Employer interest for him to remove his personal belongings? 

No, it is for the convenience of the former employee that he was allowed to collect his belongings and not wait to receive them later!

The fact that claimant sustained his injury in temporal proximity to the end of his work shift, is equally unpersuasive. Those cases deal with an individual who maintains a work relationship, not terminates a work relationship, at the end of the work shift. 

C.   ... in the end, if you do not want the individual to pursue a civil action remedy ... you are stuck in the work comp process ... I just have difficulty with the twisting, bending, contorting case precedents to justify the conclusion reached in this case. I guess I envision future claims of terminated workers alleging injury and pointing to this decision.

D.    EMPLOYER'S NEW RULE ... when an employer QUITS or is terminated ... immediately escort them from the building ... send their stuff to them in a box! 

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