Prior to June 20, 2017, a powerful tool was available to employers and workers’ compensation carriers to cap exposure on long term workers’ compensation claims.  That tool, provided by the Act 44 amendments in 1996, was called an impairment rating evaluation (IRE) and generally worked like this: once a claimant had received 104 weeks of total disability benefits and had reached maximum medical improvement, the employer could request an IRE.  A doctor was assigned to perform the evaluation and was required by statute to consult the most recent version of the American Medical Association’s guidelines.  If, under those guidelines, the IRE doctor determined that the claimant’s injury caused less than 50% whole body impairment, the employee’s workers’ compensation benefits could be modified from total to partial disability status, with a corresponding time limitation on future indemnity benefits.  The process was helpful in resolving serious injury cases, where the employee was too disabled to work but had reached a medical plateau.

Pennsylvania workers’ compensation law places no cap on the length of time in which a claimant can receive total disability benefits.  Partial disability benefits, however, are capped at 500 weeks.  Thus, via the IRE process, it was possible to prevent a claimant from receiving total disability benefits indefinitely by modifying their status to a maximum of 500 weeks of partial disability benefits.

On June 20, 2017, the Pennsylvania Supreme Court changed all of this with its decision in Protz v. Workers’ Compensation Appeal Board.  In that case, the Court held that the IRE process was unconstitutional because the legislature is not permitted to delegate its authority to issue impairment rating guidelines to a non-legislative body (i.e. the American Medical Association).  Since the IRE provisions are legislated to be applied under the most current version of the American Medical Association guidelines (which are frequently updated), the Supreme Court struck down the IRE provisions of Pennsylvania’s Workers’ Compensation Act as an unconstitutional delegation of legislative authority.

The immediate impact of Protz on future claims is clear – unless the Pennsylvania Supreme Court reconsiders and reverses its decision, the IRE process is no longer available to employers and workers’ compensation insurance carriers.  This means that it will be considerably more difficult to cap exposure on workers’ compensation claims where an employee has received 104 weeks of temporary total disability benefits and has reached maximum medical improvement.  Indeed, a reversion to the use of vocational experts to establish job availability is likely, where light duty work at the time-of-injury employer is not available.  For claims where the IRE process was used prior to the court’s decision in Protz, outcomes are less clear.

Employers who are litigating a modification of benefits based on an IRE would do well to withdraw the modification petition.  Now that the IRE process has been deemed unconstitutional by the Pennsylvania Supreme Court, an IRE can no longer serve as a valid basis for future modification of benefits.  Without a valid basis to litigate a modification petition, employers who continue to rely on an IRE in litigation are exposed to penalties and unreasonable contest fees.

Likewise, employers who are actively seeking to obtain an IRE should refrain from doing so.  Again, the evaluation cannot provide a valid basis for modification of benefits, and the Bureau of Workers’ Compensation has also indicated that it will no longer assign IRE physicians in the wake of Protz.

So what about claims where benefits have been modified or a claimant’s status has been changed as the result of a past IRE where the claimant failed to appeal?  Employers likely have no affirmative obligation to restore the pre-IRE, pre-modification status quo, but claimants may file petitions seeking to do just that.  While Pennsylvania law typically prevents the retroactive application of judicial decisions to matters that have been fully and finally determined, it is unclear how workers’ compensation judges, the Appeal Board, and Pennsylvania Courts will approach the issue. In cases where an employer obtained a modification of benefits because of an IRE and the claimant did not appeal, the doctrine of res judicata may serve to prevent re-litigation of the case.

We will continue to monitor the status and impact of Protz; additional developments will be reported here on our blog.

Employers often shy away from discharging employees for disciplinary reasons when those employees are receiving workers’ compensation benefits, such as in instances where the employee is working a modified duty assignment.  However, such employees can and should be held to the same standards as other employees, including compliance with applicable policies and procedures.  Additionally, so long as the discharge is found to be related to the disciplinary violation, any subsequent loss of earnings will be deemed to be unrelated to the work injury, thus rendering the discharged employee ineligible for reinstatement of workers’ compensation wage loss benefits.

In a recent unreported Commonwealth court case, (Waugh v. WCAB, No. 702 C.D. 2016), the Claimant was employed as a certified nursing assistant (CNA) at a medical center.  She had sustained an accepted work injury to her right arm, when a patient grabbed and twisted her arm in the course and scope of her employment.  She underwent two surgeries and eventually returned to work in a modified duty capacity.

While working modified duty, Claimant was reprimanded for acting outside the scope of her employment for administering medication to a patient.  Several months later, there was a similar incident, in which Claimant applied a tourniquet to a patient while assisting a phlebotomist, who was attempting to draw blood.  Employer’s policy in the event a phlebotomist cannot locate a vein, is to call a specialized IV team to insert the needle and draw blood.  Claimant was terminated for this second instance of acting outside the scope of her employment.  Despite her protests that she was “only trying to help,” the termination was held to be proper, as was the workers’ compensation determination denying reinstatement of benefits.

The Court reaffirmed the longstanding rule that a lack of “good faith” on the part of the claimant, is sufficient to deny reinstatement of workers’ compensation wage loss benefits.  This is so, even where unemployment benefits are awarded, on the basis that the employer had not established a case of willful misconduct under the Pennsylvania Unemployment Compensation Act.

The determination of good faith or bad faith is obviously “fact sensitive,” but in situations where the employer would discharge the employee absent a workers’ compensation backdrop, this factor alone should not discourage the employer from taking the appropriate disciplinary action, including discharge.

For further information, on this subject, please feel free to contact Denise Elliott, Micah Saul or Paul Clouser, in our Lancaster office.

As a general rule, an employee who is injured while commuting to or from work is not entitled to workers’ compensation benefits, as the injuries are not deemed to be “in the course and scope of employment” by virtue of the longstanding “going and coming rule.”  There are exceptions to the rule, including: (1) situations where there is no fixed place of employment and the employee is therefore deemed to be a “traveling,” as opposed to “stationary” employee; (2) the employee is on a special assignment for the employer; (3) the employment contract includes transportation to and from work; or (4) special circumstances exist, such that the employee was furthering the interests of the employer when injured.

In an interesting recent case, the Commonwealth Court awarded compensation under the special circumstances exception, despite the fact that Claimant was commuting to work at the time of his motor vehicle accident.

The employee, Miller, was a salaried director of maintenance services, exempt from the overtime requirements of the Fair Labor Standards Act. His regular work hours were from 7:00 a.m. to 3:30 p.m., Monday through Friday.  The employer maintained a four building campus as a facility for senior residents.  The campus had a system of security cameras, whose maintenance was an important priority for the employer.

Miller testified that in addition to his regular hours, he would be called in while off-site two to three times monthly.  In such instances, he received “comp time,” in lieu of additional pay.  The comp time accrued from the time he answered the phone, until he arrived back at home.  On the morning in question, Miller was “feeling very poor and weak.”  He stayed home past his usual 7:00 a.m. start time, with the intention of taking a sick day.  However, the employer called and requested that he stop in to reset the security cameras, after which he could return home for the rest of the day.  En route to the facility, Miller became nauseous and veered off the road, hitting a telephone pole.  He sustained multiple injuries, including a broken eye socket, broken pelvis, ruptured bladder and multiple scars and disfigurements.

The key issue before the WC Judge was whether Miller was commuting to a fixed place of employment, such that the “going and coming rule” barred his claim, or whether special circumstances existed, such that an exception to the rule applied.

Since “but for” the security camera emergency, Miller would not have made the trip to work, the Judge, and subsequently the Commonwealth Court, concluded that this factor brought the case within the “special circumstances” exception to the going and coming rule, and awarded benefits.

The key takeaway is that commuting cases are often fact sensitive and need to be analyzed carefully, to determine whether workers’ compensation benefits are appropriate.  For example, construction workers who might at first glance appear to be “traveling” as opposed to “stationary” employees, are frequently deemed to be “stationary,” if they are working at only one job site at a time.  As such, the “going and coming” rule might preclude compensation in such cases, absent special circumstances.

Please contact Paul Clouser, Denise Elliott or Micah Saul, if you have questions about situations in which your employees may or may not be deemed to be “in the course and scope” of their employment, pursuant to the Pennsylvania Workers’ Compensation Act.

The use of temporary employees provided by agencies that supply laborers, secretaries, nurses or other skilled or unskilled workers to the public and private sector is increasing. Employers who use these temporary agency workers’ must be wary of the relationships created by the use of the temporary agency workers. Are the temporary workers “employed” by the agency, the borrowing employer, or both, for purposes of the Pennsylvania Workers’ Compensation Act (the “Act”)?  The answer will determine which entity or entities may claim immunity from a common law action, under the exclusive remedy provisions of the Act.

The critical test for determining whether a worker furnished by one entity to another is “employed” by the latter, is whether the worker is under the latter’s right of control with respect to both the work performed and the manner in which the work is performed.  For example, suppose a municipal township needs a temporary worker to ride on the back of a municipal trash truck.  After receiving only minimal instruction, the worker falls from the moving truck on his first day of work and dies ten (10) months later.  Suppose the agency, Labor Ready, pays $770,000 in workers’ compensation benefits.  A civil suit is then initiated by the decedent’s estate against both Labor Ready and the Township.  Does the decedent’s estate have a viable civil claim against either entity? Under this fact pattern, the trial judge dismissed, on summary judgment, both Labor Ready and Rye Township, finding that both entities were “employers” entitled to protection under the immunity provisions of the Act.  The ruling was affirmed by the Commonwealth Court on appeal.  Nagle v. Labor Ready and Rye Township (Pa. Cmwlth. 2016).  Similar results have been reached in volunteer fire fighter liability cases, where both the volunteer fire company and the sponsoring township enjoy immunity.  Indeed the “borrowed employee” doctrine provides broad immunity in both the public and private sectors, at least where the borrowing employer exerts the requisite degree of control over the borrowed employee, (See, e.g., Hendershot v. Emmeci Northampton County 2016). A temporary agency supplied a machine operator to its manufacturing client and the agency employee sustained serious injuries while cleaning the machine.

Nevertheless, despite broad interpretation on the “borrowed employee” doctrine, employers have been found to be liable for damages beyond workers’ compensation, in circumstances where: (a) the requisite degree of control does not exist (i.e. a company leases a piece of equipment with an operator and the operator is then injured on the company’s premises) or (b) the borrowing employer forfeits its immunity by filing an Answer to the workers’ compensation claim petition denying that it is the employer, and alleging that the temporary agency is solely responsible.  Black v. Labor Ready (Pa. Super. 2010).

Employers should be sensitive to the range of potential outcomes when staffing positions with “borrowed employees,” and should review any temporary agency agreements to insure the broadest possible immunity from suit, along with proper indemnification language, with respect to agency employees who are hired into temporary positions or assignments.

Please contact a member of our Labor and Employment Group for specific legal analysis of temporary employment arrangements at your facility.

On November 28, 2016, a federal district court issued an order that allowed OSHA to move forward with implementation of its controversial standards related to mandatory post-accident drug testing programs and incident-based employer safety incentive programs.  As McNees previously reported, OSHA delayed enforcement of these parts of its final rule, aimed to “Improve Tracking of Workplace Injuries and Illnesses” (the “Rule”), until December 1, 2016.  Absent any further developments, the Rule is set to become enforceable December 1, 2016.

However, while the Rule will become enforceable, its continued validity remains questionable.  The court’s order does not dispose of the underlying complaint that asked the court to vacate the relevant parts of the Rule, the order only denied the request for a preliminary injunction.  Another layer of uncertainty has been added since Donald Trump was elected president.  President-elect Trump’s administration may ultimately decide to undo the relevant provisions or retreat from the prior administration’s expansive interpretations after he takes office in January 2017.  This creates a situation where employers need to comply with the controversial standards for now, but OSHA or a court may indicate otherwise in the not-so-distant future.  Further background on these provisions, OSHA’s guidance, and the ongoing litigation is provided below, with a focus on post-accident drug and alcohol testing.

The Controversial Provisions of the Rule

When OSHA issued the Rule in May 2016, the agency created an enforcement tool allowing it, for the first time, to independently cite employers if their policies for post-accident drug or alcohol testing, employee discipline, or safety incentive programs are deemed retaliatory because they discourage or deter injury reporting.  The controversial portions of OSHA’s Rule are at 29 C.F.R. § 1904.35(b), which requires employers to “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.”  A procedure is “not reasonable,” according to the Rule, “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”  In conjunction with this requirement, the Rule prohibits employers from discriminating or retaliating against employees for reporting work-related injuries or illnesses.

Essentially, the Rule provides that blanket post-accident drug and alcohol testing policies will discourage injury reporting and could be retaliatory..  Drug or alcohol testing are not specifically mentioned in the text of the Rule.  However, OSHA has provided interpretations in the Rule’s preamble and guidance that establish authority to cite employers for workplace policies that OSHA deems to have discouraged reporting or otherwise to be retaliatory.  For the first time, OSHA will be able to cite an employer for retaliation even if an employee does not file a complaint.  In October 2016, OSHA posted guidance on its Rule webpage related to an Employee’s Right to Report Injuries and Illnesses Free from Retaliation, including a Memorandum for OSHA’s Regional Administrators on implementation of the guidance (together, the “Guidance”).  The Guidance confirms that OSHA’s enforcement will apply to both drug and alcohol testing, and that workplace testing policies implemented pursuant to federal or state law should not be affected.  Yet, significant uncertainty remains for employers.

Lingering Uncertainty and Next Steps for Employers

The uncertainty surrounding the Rule is twofold.  First, from a substantive perspective, implementation is not entirely clear, despite the Guidance.  Employers will be forced to grapple with competing – and potentially conflicting – obligations under OSHA’s Rule and other federal and state laws as they relate to post-accident drug and alcohol testing.  On one hand, employers who require mandatory post-accident testing through sound workplace policies may be cited if OSHA determines that drug or alcohol use was not likely to have been a contributing factor to the reported injury.  On the other hand, if employers do not require mandatory testing across the board (e.g., for all lost-time injuries), workplace incidents related to drug or alcohol use arguably may increase, and selectively choosing individuals for testing may expose employers to claims that they profiled or targeted specific workers.

Second, such substantive issues now threaten the standards’ continued validity, through both litigation and executive action.  In July 2016, several trade associations, along with a workers’ compensation insurer and its insureds, initiated the litigation described above.  The action filed in the U.S. District Court for the Northern District of Texas seeks to vacate the relevant parts of the Rule to the extent they prohibit or limit routine mandatory post-accident drug and alcohol testing programs and incident-based safety incentive programs.  The plaintiffs alleged that OSHA did not have authority to create the new enforcement tool for retaliation, and that OSHA disregarded substantial evidence supporting that routine, mandatory drug and alcohol testing actually enhances workplace safety.  In the midst of the litigation, OSHA decided to postpone enforcement until November 1, 2016 to issue the Guidance.  OSHA later agreed to further delay enforcement of the Rule until December 1, 2016, but its Guidance also urged employers to review their programs and policies to determine whether they may be deemed retaliatory with respect to injury reporting.

Now that the court has denied the plaintiffs’ request for a preliminary injunction, employers who have not consulted the OSHA Guidance and prepared for timely compliance should do so by determining whether revisions to their workplace policies are necessary.  The fate of OSHA’s approach is still in the hands of the federal district court, and, even before the court decides the merits, the Trump administration may undo the OSHA standards or interpretations issued under the Obama administration or refuse to enforce them.  Nonetheless, in the interim, employers must understand how the OSHA standards and the Guidance affect their programs.  Risks of noncompliance include potential OSHA citations, including higher penalties in effect since August 2016.

Next Steps for Employers

As noted, the Rule is effective December 1, 2016, so employers need to take steps to ensure compliance.  Need assistance?  McNees contacts that can help include: Steve Matzura, Paul Clouser, Denise Elliott, Joe Sileo and Andrew Levy.

Pennsylvania’s Medical Marijuana Act (MMA) was signed into law on April 17, 2016 and officially took effect last week. One of the questions we’ve been asked since the passage of the Act is: how will employer provided insurance (both health and workers’ compensation) be affected by the legalization of medical marijuana in Pennsylvania? The simple answer is that there should be no immediate effect on either employer provided health insurance or the administration of workers’ compensation insurance.

Pursuant to Section 2102 of the MMA, insurers and health plans, whether paid for by Commonwealth funds or private funds, are not required to provide coverage for medical marijuana. The inclusion of Section 2102 in the MMA is consistent with a nationwide consensus that medicinal cannabis need not be covered under health insurance. That marijuana remains a Schedule I controlled substance, is illegal under federal law and is not an FDA approved medical treatment lend support to those employers and insurance companies objecting to coverage. Section 2102 recognizes these concerns and objections and gives clear guidance to insurers and health plans in Pennsylvania regarding their requirements – or rather the lack thereof – to provide health insurance coverage for medicinal marijuana.

With regard to workers’ compensation coverage, insurance carriers and self-insured employers may have similar objections to paying for medicinal cannabis prescribed for a work-related condition covered by the MMA (i.e. neuropathies or severe chronic pain). Section 2102 is broadly written and, thus, likely also supports the argument that medical marijuana need not be covered under workers’ compensation insurance.

While the MMA does not require employers and carriers to provide coverage for medicinal cannabis, we recognize that some employers may consider doing so. In the context of chronic pain for example, medicinal cannabis is seen as an alternative to opiate therapy, which can be costly, ineffective and, in some cases, deadly. If the treating physician of an injured worker suffering from chronic pain should suggest medical marijuana as an alternative to opiates, there is nothing in the Act prohibiting workers’ compensation insurance from covering such treatment. Before providing coverage, however, employers and carriers should ensure that there is compliance with all other aspects of the MMA. For example, the prescribing doctor must be a registered “Practitioner” as that term is defined by the Act, the requirements of “Continuing Care” must be met and the injured worker must be suffering from one of the “Serious Conditions” enumerated in the Act. Employers and carriers should further consider the impact of federal law on providing such coverage and should consult with counsel to address specific questions.

As with any new law, there are many unanswered questions. The Department of Health is required to publish temporary regulations by October 17th and full regulations must be published by the fall of 2017. These regulations should provide guidance on the implementation of the Act and interpretation of specific provisions. Note – medical providers may not begin prescribing medicinal marijuana until the regulatory framework is in place. Accordingly, until the regulations are published, we cannot know the full impact that the law will have on the workplace.

The McNees Labor and Employment Group will be closely monitoring developments to the law and, specifically, the implementation of the temporary and permanent MMA regulations. We will continue to keep you advised as things develop. In the meantime, should you have specific questions about the law, your policies and plans or your employees, please do not hesitate to contact any member of the McNees L&E Group.

As if it knew we would be discussing this topic at the 26th Annual McNees Labor and Employment Seminar on June 3rd, in Hershey, PA, the Commonwealth Court of Pennsylvania recently issued a decision addressing whether an injury occurring in an employer’s parking lot was sustained in the course and scope of employment for purposes of workers’ compensation coverage.

In Quality Bicycle Products, Inc. v. WCAB, the employer challenged the claim related to an injury sustained by an employee while the employee was running to his car. The claimant was leaving work after receiving a panicked message from his wife that his daughter was missing from school. While running through the parking lot to his car, he heard a pop in his knee, felt excruciating pain and fell to the pavement. The employer denied benefits for the knee injury, arguing that the claimant was not in the course and scope of his employment at the time he was injured.

An injury occurs within the course and scope of employment, and is considered work related, if: “(1) the claimant was furthering the interest of the employer’s business at the time of the injury; or (2) if the injury was caused by a condition of the employer’s premises or the operation of employer’s business thereon.”  The employer argued that claimant could not meet either prong of this test. The Court agreed.

In analyzing the case, the Court first noted that “an injury suffered while traveling to and from work [which claimant was in this case] is not considered to have occurred in the course and scope of employment.” This is because the employee is not furthering the business or affairs of his employer while merely commuting. When an employee is not furthering the business of the employer, the employee must satisfy the three part premises test to demonstrate a work related injury: (1) the injury occurred on the employer’s premises; (2) the employee’s presence thereon was required by the nature of his employment; and (3) the injury was caused by the condition of the premises or by the operation of employer’s business thereon. In Quality Bicycle, the parties agreed that the first two prongs were satisfied, but the employer argued that the third was not. The Court agreed, explaining that the parking lot neither caused nor contributed to claimant’s injury. Rather his injury was caused by his own act of running. The Court distinguished this case from others where the injury was found to be work related – an employee who suffered a seizure in his car and was injured when he wrecked into a concrete abutment on employer’s property; an employee who was thrown off the hood of a moving car when the driver turned suddenly to avoid a closed exit gate. In both those cases, it was the employer’s premises (the concrete abutment, the closed gate) that caused or contributed to the accident. Conversely in Quality Bicycle, claimant’s knee popped as a result of his running, not because of a bump, hole or rock on the pavement.

The lesson from this case is that employers should thoroughly investigate questionable claims and analyze such claims down to the most minor detail. If an injury occurs on the premises, don’t automatically assume that it is work related. In Quality Bicycle, claimant’s admissions that his knee simply popped, he felt pain and then fell to the pavement were key to the employer’s denial and ultimate success. Accordingly, we strongly recommend that an employer’s injury report include space for the employee to state, in his/her own words, what happened and what caused the injury.

To learn more about what injuries are and are not work related, join us on June 3, 2016 for our 26th Annual Labor and Employment Seminar.

On May 11, 2016, the Occupational Safety and Health Administration (“OSHA”) finalized a recordkeeping and reporting rule that will require covered employers to take the additional step of electronically submitting to OSHA, injury and illness information that is required to be maintained under existing OSHA regulations.  The rule becomes effective January 1, 2017.

The new electronic submission requirement applies to: (a) employers with 250 or more employers who are currently required to keep OSHA injury and illness records (i.e. OSHA forms 300, 300A and 301) and (b) employers with 20-249 employees in certain industries with historically high rates of occupational industries and illnesses.  The electronic submission requirements do not alter the employer’s obligation to complete and retain injury and illness records, as before.  For illnesses and injuries occurring in 2017, the electronic submission deadline is July 1, 2017.

Believe it or not, OSHA plans to post the injury and illness data it collects on its public website (www.osha.gov).  OSHA has indicated that it will remove any personally identifiable information (“PII”) before making the data available to the public.  States that operate their own job safety and health programs (i.e. OSHA state plans) must adopt requirements that are substantially identical to the new rule within six (6) months.

The new requirements introduce a public watchdog role.  Apparently, this role is being added in response to the near doubling of the number of workplaces in the U.S. from 1981 to the present, and the corresponding decrease in the ratio of OSHA inspectors, to one per 4300 workplaces (according to a study by the Center for Effective Government).

The rule also bars employers from retaliating against workers for reporting workplace injuries and incidents, thereby creating a supplemental avenue for disgruntled workers who are inclined to pursue a wrongful discharge cause of action, in addition to more traditional workers’ compensation claims, for alleged workplace injuries.

The net effect of the rule may be to spur additional employment lawsuits, by making it easier for plaintiff lawyers to mine for accident information.

We will keep you apprised as to further developments, but in the interim, please feel free to contact any member of our Labor and Employment Group, with questions or concerns.

In 2010, the Pennsylvania Legislature enacted the Construction Workplace Misclassification Act (CWMA), which, in part, attempted to clarify who is and is not an independent contractor (in the construction industry) for the purposes of workers’ compensation coverage.

Section 3(a) of the CWMA provides: “For purposes of workers’ compensation . . . an individual who performs services in the construction industry for remuneration is an independent contractor only if: (1) the individual has a written contract to perform such services; (2) the individual is free from control or direction over performance of such services both under the contract of service and in fact; and (3) as to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.” 43 P.S. §933.3(a).

To the extent an individual does not meet such definition, the individual will be deemed an employee and the general contractor/employer will be responsible for maintaining and providing workers’ compensation coverage for such individual.  Recently, in Staron v. Workers’ Compensation Appeal Board (Farrier), the Commonwealth Court clarified the first prong of the definition – the “written contract” requirement.

In Staron, the claimant responded to an advertisement by Lee’s Metal Roof Coatings and Painting (“Lee’s”) for a painter.  Claimant was allegedly a self-employed subcontractor with 20 years experience in painting and roof work.  Claimant began working for Lee’s, using his own tools and equipment and taking very minimal direction from Lee’s.  Approximately two months into the relationship, claimant fell off a roof and was injured.  Lee’s presented claimant with a written independent contractor agreement upon his release from the hospital, which claimant freely signed.  Claimant nonetheless sought workers’ compensation benefits from Lee’s, which were granted by the Workers’ Compensation Judge and affirmed by the Workers’ Compensation Appeal Board on the basis that claimant was an employee of Lee’s and not an independent contractor.  On appeal, the Commonwealth Court found that claimant was not an independent contractor, as defined by the CWMA, because there was no written contract between Lee’s and the claimant at the time claimant was injured.  It did not matter to the Court that claimant voluntarily signed the agreement after his injury.  According to the Court, the written independent contractor agreement contemplated by the CWMA must be in place prior to any injury being sustained in order to satisfy the “written contract” requirement of the Act.

Note, the Court did not say that the contract must be signed before any work is commenced in order to render the contractor an independent contractor.  The Court simply said that the agreement must be signed prior to the contractor sustaining an injury.  Nonetheless, the best practice would be for businesses employing independent contractors and sub-contractors, particularly in the construction trades, to ensure that Independent/Subcontractor Agreements are executed prior to the commencement of any work being performed.  Remember though that the existence of a written agreement will not necessarily carry the day in a dispute over the classification of an injured worker.  The written agreement is only one part of the test.  Accordingly, businesses in the construction trade should be mindful of the other CWMA requirements for independent contractor classification and should periodically review all independent contractor and subcontractor relationships to ensure compliance with the CWMA.

In 2003, the Pennsylvania General Assembly amended Section 601 of the Workers’ Compensation Act to expand the definition of the word “employee” to include employees who, while in the course and scope of their employment, provide aid to a person in order to (1) prevent the commission of a crime, (2) apprehend someone suspected of having committed a crime or (3) render emergency care, first aid or rescue at the scene of an emergency.  77 P.S. §1031(a)(10).  This amendment is commonly referred to as the Good Samaritan amendment and has historically been limited in its application – applying to volunteer emergency personnel only.  Recently, however, the Commonwealth Court rejected this limitation and effectively expanded the Good Samaritan amendment to apply to any employee who provides “Good Samaritan” type aid while in the course and scope of his or her employment.

In Pipeline Systems, Inc. v. WCAB (Pound), the Claimant was injured when he responded to a call for help – “man down. Jack fell.”  Claimant was assisting with the installation of pipelines and manholes at a borough sanitation plant.  Near the pipeline installation was a concrete pit.  On the day of the incident, Claimant and others responded to the call for help and found a borough employee lying at the bottom of the pit.  Claimant and others descended a ladder into the pit in an effort to help the man, but unfortunately discovered that the man had died in the fall.  While climbing out of the pit, Claimant lost consciousness and fell 20 feet, injuring his left leg, knee, foot, ribs, back and lung.  He sought workers’ compensation benefits, but the employer denied that he was entitled to benefits, arguing that Claimant went outside the course and scope of his employment when he decided to be a Good Samaritan.  Employer relied on the Supreme Court’s decision in Kmart Corp. v. WCAB (Fitzsimmons).   In Kmart Corp., the Supreme Court held that a Kmart employee was not in the course and scope of her employment when she was injured while rendering aid to a fellow employee, who was in the Kmart food court on her lunch break and was being attacked by her estranged boyfriend.  In litigation, the employer also argued that the Good Samaritan amendment to the Act did not apply to Claimant, as Claimant was not volunteer emergency personnel.

The Commonwealth Court, in Pipeline Systems, rejected the employer’s arguments, citing the Good Samaritan amendment, which was adopted three years after the Supreme Court decided the Kmart case.  The Court found that the amendment was not limited to volunteer emergency personnel and could apply to any employee who renders aid to another while in the course and scope of his/her employment.  In this case, the Court found that Claimant was within the course and scope of his employment when he was injured, because he was “in the midst of his work” when he responded to the call for help, climbed into the pit, and fell.

In light of this ruling, employers will be unable to deny benefits for injuries sustained by Good Samaritan employees (as defined in Section 601), unless they can show that the employee was outside the course and scope of employment when the Good Samaritan aid was provided.  Under most circumstances, this will be a difficult burden for the employer to meet.  Accordingly, it is our recommendation that employers consider adopting Good Samaritan policies.  Employees should be told to refrain from putting themselves or others at risk and instead follow protocols for contacting emergency personnel and reporting the emergency to the appropriate person within the company.  Having such a policy in place may not preclude an employee from receiving benefits if he or she violates the policy, provides aid and is injured but it could dissuade employees from intervening in dangerous situations that they are not trained to deal with, thereby helping to reduce the possibility of an injury being suffered.  Additionally, under the right set of facts, the employee could be disciplined for violating a positive work rule, which may preclude him or her from receiving workers’ compensation wage loss benefits.