WORKERS’ COMPENSATION-IMMUNITY-SUBCONTRACTORS
Coleman v. Chief Oil & Gas, 2022 U.S. Dist. LEXIS 48022 (M.D. Pa. March 17, 2022) (Brann, D.J.). Chief gas drilling company hired pressure pumping and Coleman to perform work at a fracking site. Coleman was seriously injured. The work done was a regular part of Chief’s business. Coleman and Western failed to produce evidence that the work was not a regular or recurrent part of Chief’s business. There is no genuine factual dispute that Chief contracted with Universal to have work performed that is part of its regular work. Therefore, Chief was immune from tort claims as a contractor. This is based upon Workers’ Compensation Act immunity, 302(a).
WORKERS’ COMPENSATION-INTERVENTION-STATUTORY LIEN
Loftus v. Decker, 2022 Pa. Super. LEXIS 112 (March 10, 2022) (Pellegrini, J.). Eastern Alliance Insurance Group, a workers’ compensation carrier, appealed from a Common Pleas decision denying its petition to intervene in an action commenced by a praecipe for writ of summons filed by Michele Loftus and her husband against Katrina Decker. It sought to intervene and file a complaint on behalf of Loftus to seek damages out of which it could satisfy a statutory lien for compensation it paid on behalf of Loftus’ employer. The court found that there was no right to appeal interlocutory because there is no right to force an employee to file a claim and because the insurance company cannot file a third-party claim itself. The fact that there is a writ of summons does not change the rule. Eastern Insurance does have a subrogation right. However, until a complaint is filed, intervention cannot be granted. The appeal was quashed.
WORKERS’ RIGHTS-EXHAUSTION OF ADMINISTRATIVE REMEDIES
Edgell v. City of Aliquippa, 2022 Pa. Commw. LEXIS 31 (March 4, 2022) (Covey, J.). Former City of Aliquippa police captain and the Fraternal Order of Police appeal from a Common Pleas order sustaining the City’s preliminary objections. The issue was whether there was exhaustion of administrative remedy under the union and City’s collective bargaining agreement. The Commonwealth Court affirmed the dismissal of the matter. The question was eligibility to receive benefits beginning in the month following the month of retirement through the 65th birthday, used to obtain post-retirement healthcare insurance. Appellants filed a complaint alleging breach of contract counts and seeking funds plus ongoing payments for insurance premiums that Captain Edgell paid under COBRA and UPMC health plan to continue to age 65. Of course, the issue was the language of the contract. Because Captain Edgell did not file a grievance, the trial court properly concluded that it did not have subject matter jurisdiction over the claim. The Captain did not follow the collective bargaining agreement’s grievance procedure to address his rate of pay as required under the CBA. Therefore, the trial court had no subject matter jurisdiction.
WORKERS’ COMPENSATION-SUBROGATION-JONES ACT
Arlet v. Workers’ Comp. Appeal Bd., 2022 Pa. LEXIS 183 (February 23, 2022) (Mundy, JJ). The question is one of subrogation under the Workers’ Compensation Act. What are the limits of the general equitable prohibition of an insurer seeking subrogation from insured? The workers’ compensation judge ruled that claimant was a “seaman” covered exclusively under the Jones Act, and therefore ineligible for workers’ compensation. The Workers’ Compensation Appeal Board found that the insurance company did not have a right to subrogation for benefits paid to claimant under the Jones Act policy of insurance, in spite of the Commonwealth Court’s initial holding that claimant was not a seaman or a crew member entitled to benefits which should not have been paid to him. As a matter of first impression, we conclude that the “no coverage exception” to the general equitable rule precluding an insurer from pursuing subrogation against its insured comports with the purposes of public policy supporting the rule and hereby adopted is the law of the Commonwealth. For example, the conflict of interest perceived to be present when insurer seeks subrogation from an insured for a covered loss is not implicated where the loss is found not to be covered. The concerns expressed as justification for precluding subrogation by an insurer against its insured, about apportionment of risk among those assuming the burden of such risk is similarly inapt where the insurer had not assumed any burden for the loss at issue. Given the finding that insurer’s Jones Act policy did not cover claimant because claimant is not a seaman, and that the workers’ comp exclusive remedy applies, insurer is seeking subrogation for payment it made on a loss it did not cover. Any equitable rule precluding an insurer from seeking subrogation against its insured is best tempered by the exception adopted today. Accordingly, we reverse the portion of the Commonwealth Court’s decision affirming the WCAB on its stated alternative grounds, and remand.
FRAUD-DOCTORS AND PHARMACIES
Liberty Mut. Group v. 700 Pharm., 2022 Pa. Super. LEXIS 48 (February 1, 2022) (Nichols, J.). It was alleged that pharmacies and doctors entered into a conspiracy whereby doctors would dispense medication through pharmacies. The court found there was nothing illegal about what was done or the way it was done. The question concerned medical necessity required by the Pennsylvania Workers’ Compensation Act. It is claimed that there were material misrepresentations made because there were letters submitted and signed by physicians without individually considering the specific patient for whom the combination of the medications was being prescribed and without explaining the specific reason why the particular combination was more appropriate for that particular patient. The claim on appeal was that the lower court improperly deferred to the administrative system created by the workers’ compensation system. To the extent appellants challenged the reasonableness or necessity of the treatment provided to patients who suffered work-related injuries, the trial court correctly concluded that it did not have jurisdiction to revisit that issue. The court also threw out the fraud claim. The court went through what fraud is. Fraud can take many forms. The fraud statute, the criminal fraud statute, was relied upon. The appellants claimed that there were many misrepresentations. The trial court did not address whether the letters of medical necessity contained material misrepresentations. However, appellants failed to identify any evidence let alone material issues of fact to support the claim.
WORKERS’ COMPENSATION-COURSE AND SCOPE OF EMPLOYMENT-TRAVELING EMPLOYEE DOCTRINE-CONFLICTING TESTIMONY
Peters v. Workers’ Comp. Appeal Bd. (Cintas Corp.), 2021 Pa. LEXIS 4002 (November 17, 2021) Mundy, J. Pursuant to the Workers’ Compensation Act (Act), employers are liable to their employees for injuries arising in the course of employment. Whether an injured employee was in the course of his or her employment at the time of injury is a frequently litigated question of law. The intermediate appellate courts of this Commonwealth have long examined “course of employment” cases in two distinct ways, depending on whether the employee in question is a stationary or traveling employee. See Rana v. Workers’ Comp. Appeal Bd. (Asha Corp.), 170 A.3d 1279, 1284 (Pa. Cmwlth. 2017). With respect to traveling employees, these courts have consistently applied the following presumption: “[w]hen a traveling employee is injured after setting out on the business of his [or her] employer, it is presumed that he [or she] was furthering the employer’s business at the time of the injury” unless the employer rebuts the presumption by showing that the employee’s actions, at some point prior to the injury, “were so foreign to and removed from his [or her] usual employment that they constitute an abandonment of that employment.” Roman v. Workmen’s Comp. Appeal Bd. (Dep’t of Envtl. Res.), 150 Pa. Commw. 628, 616 A.2d 128, 130 (Pa. Cmwlth. 1992). The foregoing rebuttable presumption is sometimes referred to as the traveling employee doctrine, the continuous coverage rule, or the commercial traveler rule. This Court has never specifically addressed the traveling employee doctrine; therefore, we granted review to consider the contours of a traveling employee’s course of employment.
Having reviewed and adopted the traveling employee doctrine, we turn to the facts of the present appeal to consider the doctrine’s applicability in this case. The doctrine, again, provides for the following presumption: “[w]hen a traveling employee is injured after setting out on the business of his [or her] employer, it is presumed that he [or she] was furthering the employer’s business at the time of the injury.” Roman, 616 A.2d at 130. Thus, for the traveling employee doctrine to be implicated, Claimant must demonstrate: (1) that he is a traveling employee and (2) that he set out on the day of the accident on the business of Employer. The WCJ acknowledged that Claimant was a traveling employee and that Claimant set out on the day of the accident to visit customers in the northern portion of his sales territory. The record supports these findings, and the Employer does not appear to dispute them.
We begin with the fact that Claimant, admittedly, passed the highway exit to his home on the way to the Tilted Kilt. The Commonwealth Court essentially found this fact to be dispositive, concluding that Claimant ceased to be in the course of his employment at this moment because this is the moment where Claimant’s homeward trip ended. Peters, 214 A.3d at 743. However, the Commonwealth Court’s attention to this fact was far too narrow. An employee’s course of employment does not end simply because the employee passed his or her home during the workday. For example, if Claimant had passed his home while traveling from one customer to the next, he surely would not have ceased to be in the course of his employment simply by passing his home. Claimant contends that he passed the highway exit to his home to attend an Employer-sponsored social event. While the location of Claimant’s home is certainly relevant if his attendance of the event at the Tilted Kilt constituted abandonment, it is not dispositive of whether Claimant’s course of employment continued through the event. As such, we proceed to consider whether his attendance at the event constituted abandonment of employment.
The record reflects conflicting testimony as to where Claimant was coming from at the time of the motor vehicle accident. Claimant testified that he was traveling from the Tilted Kilt to his home at the time of the motor vehicle accident. Michael Cintron, on the other hand, testified that in his phone conversation with Claimant following the motor vehicle accident, Claimant stated that he was on his way home from some other event than the one at the Tilted Kilt at the time of the accident. That being said, Michael Cintron candidly testified that he could not recall where Claimant said he was coming from. The WCJ did not explicitly resolve this conflicting testimony, presumably because the WCJ determined that Claimant abandoned his employment with Employer when he passed the highway exit to his home and proceeded to the Tilted Kilt. While the WCJ did credit the testimony of Michael Cintron, this credibility determination does not resolve the conflicting testimony because the WCJ also credited in part the testimony of Claimant without explaining which parts the WCJ deemed credible. This leaves the conflicting testimony of Claimant and Michael Cintron unresolved, and leaves open the question of whether Claimant took some action after leaving the Tilted Kilt that could constitute abandonment of employment.
We conclude Claimant remained in the course of his employment with Employer through the event at the Tilted Kilt. However, as there is conflicting testimony as to whether Claimant took some action after leaving the Tilted Kilt that could be considered abandonment of employment, we vacate the order of the Commonwealth Court affirming the denial of Claimant’s claim petition, and remand for the Commonwealth Court to remand to the WCJ with specific instructions to make additional findings and conclusions consistent with this Opinion.
CONTRACTORS-SUBCONTRACTORS
Heivly v. Santander Bank, No. 18-1370 (C.P. Lycoming, PA September 17, 2021) (Linhardt, J.) James Heivly was acting within the scope of his employment with Jones Lang LaSalle Americas, Inc. (“JLL”), which had contracted with defendant to perform maintenance services at the premises. The question was whether § 303(b) of the Workers’ Compensation Law precludes the introduction, in a case seeking damages from a third party, evidence regarding an employer’s negligence, where such negligence is relevant to the defenses raised by the third party. Judge Linhardt, following another court, where there is split authority, held that defendant shall not be foreclosed from presenting evidence or testimony that JLL assumed responsibility for the maintenance and repair of the subject ladder which broke under the Real Estate Services Agreement, and was therefore collaterally negligent for its failure to properly maintain and repair the ladder, or to properly supervise or train Heivly. The employer was not joined as a party. The employer could not be joined as a party under the aforementioned Act.
WORKERS’ COMPENSATION-IMMUNITY-INTENTIONAL CONDUCT
Grabowski v. Carelink Community Support Services, 2020 Pa. Super. LEXIS 189 (March 9, 2020) Colins, J. A person who worked at a hospital claimed that they were assaulted by a resident and therefore workers’ comp immunity did not apply. The employer plead the immunity of workers’ compensation. The court found no “personal animus” on the part of the employer, at least. The injury is presumed to be work related when it happens on the employer’s premises. Plaintiff plead she was attacked while working in the course and scope of her employment. Apparently, this case went through workers’ compensation and Plaintiff successfully obtained benefits. The personal animus/third party attack exception has been held inapplicable to sexual assaults on employer’s premises where the assailant was a stranger or non-coworker with whom the employer was required to interact in the performance of her job.
WORKERS’ COMPENSATION-IMMUNITY-EXCLUSIVITY PROVISION OF 303(a)
Burrell v. Streamlight, Inc., 2019 Pa. Super. LEXIS 1110 (November 7, 2019) Colins, J. In this case, summary judgment was granted for defendant-employer and an appeal taken. Under the borrowed employee doctrine, where a worker employed by one company is furnished by that company to perform work for another company, the latter company is his employer under the WCA if it has the right to control his work and the manner in which the work is done. A company that is an injured worker’s employer under the borrowed employee doctrine is liable for payment of workers’ compensation benefits for his work injuries. If there is conflicting evidence with respect to the supervision or control of the work, summary judgment cannot be granted. In this case, it was a contract showing that the temporary placement company hired and paid the plaintiff, but that defendant worksite had the right to control plaintiff’s work and the manner in which it was performed. There was no issue of dispute, and the case was properly thrown out.
WORKERS’ COMPENSATION-SUBROGATION-COOPERATION OF EMPLOYEE
Hartford Ins. Group v. Kamara, 2018 Pa. LEXIS 6033 (Pa. S.Ct. November 21, 2018) Baer, J. This appeal presents the issue of whether a workers’ compensation insurance carrier may bring a third-party action against an alleged tortfeasor on behalf of an injured employee to recoup the amount paid in workers’ compensation benefits where the employee did not independently sue the tortfeasor, did not join in the insurer’s action, and did not assign her cause of action to the insurer. Reaffirming the well-settled proposition that the right of action against the tortfeasor remains in the injured employee, we hold that, unless the injured employee assigns her cause of action or voluntarily joins the litigation as a party plaintiff, the insurer may not enforce its statutory right to subrogation by filing an action directly against the tortfeasor. Accordingly, we vacate the judgment of the Superior Court and reinstate the order of the trial court, which sustained the preliminary objections filed by the tortfeasor and dismissed the insurer’s complaint with prejudice.
Under these circumstances, we find it apparent that sanctioning a workers’ compensation carrier to pursue litigation of the injured employee merely by captioning the complaint as “on behalf of” the employee and including a bald assertion seeking any recovery due the employee, contravenes the very jurisprudence establishing that it is the injured worker who retains the cause of action against the tortfeasor. It is for these reasons that we reiterate our holding in Domtar Paper and clarify that absent the injured employee’s assignment or voluntary participation as a party plaintiff, the insurer may not enforce its Section 319 right to subrogation by filing an action directly against the tortfeasor.
SUBROGATION-NEW JERSEY WORKERS’ COMPENSATION-OTHER CAR WORKERS’ COMPENSATION-SUBROGATION-NEW JERSEY
Trunov v. Liberty Mut. Ins., 2018 Pa. Ct. of Common Pleas Lackawanna Co. LEXIS 1734 (August 31, 2018) Munley, J.- Pennsylvania law, specifically 77 P.S. § 671, applies to this matter and under 77 P.S. § 671, Liberty is entitled to a subrogation interest for repayment of New Jersey workers’ compensation benefits from any monies paid to Trunov from third party tortfeasors in the settlement of the Pennsylvania civil action. Liberty is not entitled to a workers’ compensation subrogation interest in any monies paid to Trunov from his employer USTP in the Pennsylvania civil action.
WORKERS’ COMPENSATION-TEMP AGENCY
Gardner v. MIA Products Company, 2018 Pa. Super. LEXIS 551 (May 30, 2018) Ott, J. Eric Gardner appeals from the order entered in the Court of Common Pleas of Lackawanna County, on February 27, 2017, granting summary judgment in favor of MIA Products Company and J & J Snack Foods Corp./MIA (MIA). The trial court determined that Gardner was a borrowed servant of MIA and, therefore, not entitled to file a tort claim against the company for injuries allegedly suffered while working there. In this timely appeal, Gardner raises two claims. First, he argues the trial should not have looked beyond the fact that he was not a statutory employee of MIA. Second, Gardner argues the trial court erred in concluding he was borrowed employee of MIA.2 After a thorough review of the submissions by the parties, relevant law, and the certified record, we agree that there are open issues of fact that prevent the proper grant of summary judgment. Accordingly, we reverse the order granting summary judgment and remand for trial.
While there was evidence to support the trial court’s conclusion that MIA was afforded the right to control the DelVal workers, we do not believe that evidence is so compelling as to resolve all questions of material fact regarding the issue of worker control. Therefore, the evidence as currently constituted cannot justify the grant of summary judgment in favor of MIA. Gardner testified that it was a DelVal supervisor who evaluated them and placed them within MIA. The DelVal supervisors were present when MIA employees demonstrated how the work was performed. While MIA supervisors confirmed the employee demonstration accurately depicted how the work was to be performed, it is not clear whether Gardner and his DelVal compatriots were under the control of the MIA supervisors at the time. We cannot say that if the MIA supervisors were merely confirming what had been learned under DelVal supervision that, as a matter of law, control of Gardner had shifted to MIA.
The evidence presented may well allow for a finding in MIA’s favor, but it does not necessarily compel that outcome. As such, the trial court abused its discretion in granting summary judgment in favor of MIA.
Judgment reversed. This matter is remanded for trial. Jurisdiction relinquished.
WORKERS’ COMPENSATION-SUBROGATION-DISABILITY BENEFITS AND MEDICAL EXPENSES
Whitmoyer v. Workers’ Compensation Appeal Board, 2018 Pa. LEXIS 2995 (June 19, 2018) Donohue, J. The Pennsylvania Workers’ Compensation Act (“WCA”) makes an employer liable for paying the disability benefits and medical expenses of an employee who sustains an injury in the course of his or her employment. See 77 P.S. §§ 431 (disability), 531 (medical). This liability attaches without regard to the employer’s negligence. See id; see also Heckendorn v. Consolidated Rail Corp., 465 A.2d 609, 613 (Pa. 1983). Under section 319 of the WCA, however, employers (or their insurance carriers) are “subrogated to the right of the employe” and therefore entitled to reimbursement for certain expenses where a third party caused the employee’s injury. 77 P.S. § 671. The instant matter addresses a specific question about the scope of this reimbursement. Section 319 of the WCA provides, in pertinent part:
Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employe, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future instalments of compensation.
We granted allowance of appeal to determine whether the Commonwealth Court erred in concluding that the term “instalments of compensation” in section 319 encompasses both disability benefits and payment of medical expenses.
In sum, after satisfying the employer’s accrued subrogation lien, which encompasses “compensation” payments made by the employer toward both disability benefits and medical expenses prior to the third-party settlement, the General Assembly intended the excess recovery to be paid to the injured employee and to be treated as an advance payment only on account of any future disability benefits. See 77 P.S. 671. The fact that, in this case, Whitmoyer was not owed any outstanding disability benefits is wholly irrelevant to our analysis.
As to the other stated purposes of section 319, we note that the provision’s protection of “innocent” employers has its limits. The WCA’s default is to hold an employer liable for an employee’s work-related injury. See 77 P.S. §§ 431 (disability benefits), 531 (medical expenses). Indeed, in the instant matter, MCM concedes that even if we found in its favor, its liability would be circumscribed “only to the extent of [Whitmoyer’s] third party recovery.” Once that amount is exceeded, MCM (or Selective) would again be required to pay Whitmoyer’s medical expenses in full, “potentially for the lifetime of the injured worker[].” Id. Finally, it bears emphasizing that the conclusion we reach today is wholly consistent with the remedial nature of the WCA, which should be interpreted for the benefit of the worker and liberally construed to effectuate its humanitarian objectives. Peterson v. W.C.A.B (PRN Nursing Agency), 597 A.2d 1116 (Pa. 1991); 1 Pa.C.S. § 1928.
The decision of the Commonwealth Court is reversed.
Chief Justice Saylor and Justices Baer, Todd, Dougherty, Wecht and Mundy join the opinion.
