New case law on "travelling employees"

The case of Jamison v. W.C.A.B. (Gallagher Home Health Services) was issued by the Commonwealth Court of Pennsylvania on August 19, 2008. This decision addressed the issue of “a traveling employee.”

In this case, the claimant was a home health nurse who traveled around for Gallagher Home Health Services to various in-home clients that needed home health care. The employer paid the claimant a fixed wage for the time that she spent with the patients but was also reimbursed the claimant for mileage expenses. The employer did not reimburse the claimant for mileage incurred driving to the first patient’s home or for mileage incurred returning to her own home from the last patient’s home. Also, it was known and allowed by the employer for claimant to do personal errands during the day and during her travels.

Also, the claimant worked for two other employers on a part time basis. On any given day, the claimant could be working for all three of her employers.

The claimant was involved in an automobile accident where she suffered an aggravation of a preexisting complex regional pain syndrome in her left arm and chest. This accident occurred while traveling from her home to her first client’s home.

The Workers’ Compensation Judge agreed with the employer and denied the Claim Petition. The denial was based on the holding that the claimant was not a traveling employee because on any given day she could be working for any one of, or all three of, her employers. Because the Judge found that claimant was not a traveling employee, her commute from her home to her first job site, was not in the course of employment.

A standard rule in Pennsylvania workers’ compensation is that, if you are injured while traveling from home to work and you are a stationary employee (meaning you have one place where you work) you cannot be compensated for any injuries while commuting to and from work. However, if you are a “traveling employee” you may be compensated for injuries that occur while you are traveling, even if it is on your daily commute to and from work.

On appeal, the Commonwealth Court indicated that, when considering whether an individual is a traveling employee, each case is determined on a case by case basis. The Court found that because claimant did not work on the employer’s premises, but treated patients in their homes, the claimant had to travel to the various homes and that travel was an essential element of the claimants work for the employer. Further, but for the multiple employer issue, there would be little reason to doubt that claimant was a traveling employee with respect to her job with Gallagher.

The Court dealt with an issue of first impression. No Court had addressed the issue of whether a claimant must work for a single employer in order to be considered a traveling employee. In this case, the court ruled in favor of the claimant. The Court held that there was no evidence that supported the Workers’ Compensation Judge’s finding that the claimant had abandoned her employment with Gallagher and was doing work for one of her other employers at the time of the motor vehicle accident.

Worker who lost leg in construction accident receives $13M

A construction worker whose leg had to be amputated after it was crushed by falling beams recovered a $13 million settlement.

In 2005, Timothy McGuire was standing near an 80-foot I-beam on the Harrah's casino construction site in Chester when an aerial boom operator hit the beam, causing a chain reaction of falling beams. They landed on McGuire's right leg, crushing it. After 16 surgeries, his leg ultimately had to be amputated above-the-knee.

McGuire and his wife blamed general contractor T.N. Ward and subcontractors Samuel Grossi & Sons and E&R Erectors, arguing that they failed to ensure workers' safety. The plaintiffs also alleged the beams were improperly stored. Lawsuits against Harrah's Entertainment and Chester Downs were dismissed after the other parties agreed to the settlement. The case was filed in Philadelphia County.

To see the full report on this case, go to VerdictSearch.com.

At C&C Law, we have handled many construction site accidents in both Pennsylvania and New York. See more information on the website relating to construction site accidents here and here.

New case law on IRE's

The Commonwealth Court of Pennsylvania issued a new decision in the case Combine v. WCAB (National Fuel Gas Distribution Corp.) on August 14, 2008. This case dealt with the issue of whether or not the Claimant needs to be at maximum medical improvement (MMI) before his benefits can be modified pursuant to an impairment rating evaluation (IRE).

In this case, the IRE physician did not render an opinion that the Claimant was at MMI and thought that a finding of MMI was not required by the Workers' Compensation Act. The Workers' Compensation Judge accepted this interpretation as well as the Appeal Board. However, the Commonwealth Court reversed.

The Court basically followed the language of the AMA Guides which are used to determine impairment ratings. The Fifth Edition of the AMA Guides requires that to determine an impairment rating, the Claimant’s condition must be permanent, thus the Claimant’s condition must be at MMI.

To see the full decision, click here.

How much is your arm worth?

Because the last post dealt with specific loss benefits, I thought I would provide a quick primer on what this means. Under the Pennsylvania Workers' Compensation Act, if you lose a particular extremity, or lose the use of that extremity, then you can be compensated for that loss. Basically, if you get your arm chopped off at work, you are entitled to a set amount of weeks of total disability benefits based upon your average weekly wage.

Here is a list directly from the statute listing what each body part is worth.

As you can see from the list, for example, an arm is worth 410 weeks of benefits plus a 20 week healing period. Therefore, if you lost your arm (or lost the use of it for every day practical purposes) then you would receive a total of 430 weeks. You would multiply your total disability compensation rate (TTD) by 430 and that is how much your arm is worth.

It is obvious that this type of system is not fair at all. A person who works at a desk and shuffles papers but earns a high salary (er...eh...like me....) would get a significant payment if I lost my arm, even though I could pretty much do my normal job of shuffling papers with a few minor modifications. However, a construction worker earning $15.00/hour, for example, probably would NEVER be able to do his/her normal job with only one arm, but he would receive less money than I. That just is not fair. The person who needs their arm the most to support themselves and their family gets the least amount of money.

A rich person's arm is worth more than a poor person's arm.

New case law on allowing total disability benefits even when the injured employee is back to work

In Allegheny Power Service Corp. v. WCAB, the Pennsylvania Commonwealth Court ruled that the WCAB has discretion under the Workers' Compensation Act to award total disability benefits even when an injured worker is able to return to a job and earn wages.

In 1995, the injured worker suffered severe electrical burns when he came in contact with a charged electrical line. His right arm was amputated at the elbow and his left hand was badly damaged to the point of being almost useless.

The claimant eventually returned to light duty work at his normal wages so the insurance company stopped his total disability wage benefits. Claimant's counsel, though, filed a penalty petition contending that under Section 306(c)(23), Claimant should continue to receive total disability wage benefits despite him returning the work.

The workers' compensation judge determined that the matter was governed by section 306(c)(23) of the Workers’ Compensation Act (Act), which creates a statutory presumption of total disability for individuals who suffer specified bilateral losses: “Unless the board shall otherwise determine, the loss of both hands or both arms or both feet or both legs or both eyes shall constitute total disability, to be compensated according to the provisions of [section 306(a) of the Act, 77 P.S. §511].” 77 P.S. §513(23) (emphasis added).

On appeal, the Employer argued that the WCAB erred in interpreting section 306(c)(23) of the Act as mandating an award of total disability benefits without regard to evidence of Claimant’s post-injury earning power. Specifically, the Employer argued that, because awards under section 306(a) are premised upon a loss of earning power, the principle that specific loss benefits are payable without regard to a claimant’s earning power is not applicable to awards under section 306(c)(23). The Commonwealth Court disagreed.

The Court held that a claimant who sustains an injury adjudged compensable under section 306(c) (specific loss) is not entitled to compensation beyond that provided by section 306(c), even though he may be totally disabled by his injury. Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200, 360 A.2d 620 (1976). It always has been recognized that the right to compensation under section 306(c) is measured by the extent of the injury, regardless of the degree of disability. Morrow v. James S. Murray & Sons, 7 A.2d 109 (Pa. Super. 1939).

In cases where there is a bi-lateral loss, the claimant's future earning power should not be considered. Also, the sole discretion lies with the WCAB and cannot be overturned on appeal. Thus, if the WCAB determined, as it did in this case, that the claimant should receive ongoing total disability benefits, despite working, then the appellate courts cannot overturn that decision.