Pennsylvania Supreme Court strikes down IRE provisions in Workers Compensation Act

Attorneys across the Commonwealth of Pennsylvania have been waiting for the Pennsylvania Supreme Court to clarify the status of the Impairment Rating Evaluation section of the Act, since the Commonwealth Court struck down provisions and remanded the case back to a Workers Compensation Judge.   The PA Supreme Court issued it’s decision as I sat in a workers compensation hearing around 11:30 AM this morning.   In Protz v. WCAB (Derry Area School District), No. 6 WAP 2016, the Court struck down the IRE provisions of the Act as unconstitutional in it’s entirety.

To help you understand, let me first explain the IRE process.  First, and foremost, it is a process used to limit injured worker wage loss benefits.  The injured worker is examined by a doctor chosen by the Commonwealth for what is called an impairment rating evaluation.  The IRE exam is solely used to establish a whole body impairment.  If the IRE examination finds an injured worker to have 50% or less whole body impairment from the work-related diagnoses, then wage loss benefits are capped to 500 weeks (about 9 1/2 years).   A request for an IRE examination by the insurance carrier cannot occur until an injured worker has received at least 104 weeks (2 years) of total disability compensation. Don’t confuse this examination with an IME  (defense) examination.  They are entirely different.  IRE examinations are nothing more than a tool for an insurance carrier to limit wage loss benefits of the injured worker.  Additionally, the provision is also unfair because it is nearly impossible to get a 50% or more whole impairment rating evaluation, outside completely catastrophic injuries. Continue reading

Pennsylvania Employee injured while running in parking lot not granted workers’ compensation

There are cases now and then that involve the argument of ‘course and scope’, meaning, did the injury occur in the course and scope of employment.  Over the years, Pennsylvania Courts have reduced gray areas of the law involving course and scope arguments.  Recently, the Commonwealth Court issued an opinion, in Quality Bicycle Products v. WCAB (Shaw), No. 1570 C.D. 2015 (Cmwlth Ct., 2016), further defining the elements of the course and scope test.

CommCtIn Quality Bicycle Products, a Claimant was working at his Employer when he received a family emergency call from his wife.  After seeking permission to leave, he hurried out of the building and as he was running to his automobile to leave, he felt a pop in his knee and was in excruciating pain, which caused him to go down to the ground.  The Claimant’s argument of a work related injury was that the injury occurred on the employer’s premises.  The Employer’s argument was that the injury occurred outside the course and scope of employment.  The Workers’ Compensation Judge (WCJ) granted benefits to the Claimant and the Workers Compensation Appeal Board (WCAB) affirmed the WCJ.

The Commonwealth Court reversed the WCJ and WCAB.  In it’s Opinion, the Court stated when an employee is NOT furthering the business of the employer, then the employee must meet three elements to meet the course and scope of employment test.

An employee who is not furthering the business or affairs of his employer must prove he or she is within the course of his or her employment by satisfying the following three conditions: “(1) the injury must have 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 the employer’s business thereon.”
Markle

The critical thing to remember here is this is not a OR test, it is a AND test, meaning, all three elements must be met in order to meet the elements and therefore fall within the course and scope of employment.

In this case, the Commonwealth Court reversed the decision and ruled that the Claimant did NOT meet the third element of the test.  Here, there was no slip and fall.  There was no tripping over a pot hole or slipping on ice.  The employee was simply running when he felt a pop in pain in his knee.  The Court ruled that the injury was caused by his own act of running, not by any condition of the premises.

Workers’ compensation cases are complex.  How the injury occurred, extent of the injury, timing of the injury, and many other factors influence entitlement to benefits.  That is why it is imperative that you seek legal counsel that is experienced in Workers’ Compensation.  If you have been hurt on the job, we can help.  We have thirteen convenient office locations throughout Central Pennsylvania:  Chambersburg, Mercersburg, Shippensburg, Carlisle, Harrisburg, Duncannon, Halifax, York, Hanover, Gettysburg, New Oxford, and Stewartstown.  We also are now able to meet clients in Lancaster!  If you have been hurt on the job, do not go it alone.  call Mooney & Associates for a FREE consultation.  Remember, we get no fee unless you recover!  Call us at 717-200-HURT or 1-877-632-4656.

Firm Website:  http://www.mooney4law.com

PA Justice Michael Eakin resigns over porn emails

The porn email scandal in Pennsylvania has now claimed a second Pennsylvania Supreme Court Justice.  Justice Michael Eakin, who has been under suspension by the Pennsylvania Judicial Conduct Board, has retired amid the scandal.  Eakin was suspended back in December.CommCt

The Judicial Conduct Board, an ethics panel for judges, in a complaint last year said Eakin, 67, a Republican, “detracted from the dignity of the office.”

The 52-page complaint said messages Eakin sent or received included a video about busloads of “sluts” crashing in California, jokes about domestic violence and golfer Tiger Woods’ black and Asian background.

This is the second Pennsylvania Supreme Court Justice to leave the bench over the porn email scandal that has engulfed Harrisburg.  Former Justice Seamus McCaffery resigned back in 2014 due to receiving and sending pornographic, offensive, and racially charged emails.

The high Court will now operate with six justices.  Democratic Governor Tom Wolf will be responsible for appointing a replacement and that appointment would have to be confirmed by the Republican Senate.   Good luck with that, they can’t even pass a state budget from last year.

By way of background, current Attorney General Kathleen Kane launched an investigation shortly after the Jerry Sandusky child sex abuse scandal at Penn State, after promising in her electoral campaign to launch a review.  In that review, the investigation uncovered a secret caches of pornographic emails.  The investigation revealed that Attorney General employees were routinely sharing xxx-rated photos and videos and other types of adult humor.  That ultimately led to the resignation of several high-ranking state officials.

After McCaffery threatened to make public emails that Eakin had received, Eakin self-reported and an investigation against Eakin was dropped.  The Eakin case reappeared when AG Kane, who herself has been fighting against prosecutors claims against her, in which she has claimed the charges are “manufactured” as career-threatening perjury charges, led to a very public review of Eakin’s email traffic.  Subsequently, Eakin was suspended.

With this past election, the PA Supreme Court just got back to a full compliment of justices.

Commonwealth Court Reaffirms Residency Does Not Provide Jurisdiction in Workers Compensation

CommCtRecently, the Pennsylvania Commonwealth Court, once again, addressed the issue of state jurisdiction over a workers compensation claim.

In this case, a Pennsylvania resident was injured in an auto accident in New Jersey, while working for a trucking company based out of Alabama.  During the pendency of the claim, the Claimant was receiving workers compensation benefits through the state of Alabama.   When the Claimant applied for his position, he testified that he completed an online application at his home in Pennsylvania.  He sought to have his benefits transferred to Pennsylvania.

Claimant’s argument was set forth:

According to Claimant, the totality of the facts lead to the inescapable conclusion that his employment was principally localized in Pennsylvania because he lived in Pennsylvania, and he worked in Pennsylvania more than any other state.

The jurisdictional elements for a work injury to be compensable in Pennsylvania have been set forth in the Workers Compensation Act (herein referred to as “Act”).  First, and foremost, Pennsylvania will always have jurisdiction over a work injury that occurs in Pennsylvania.  However, Pennsylvania also has ‘extra-territorial” provisions that allow the state to grab jurisdiction on work injuries that  occur outside Pennsylvania.   They are set forth at Sections 305.2, 77 P.S. 411.2.  A Claimant will be entitled to benefits if;

(1) his employment is principally localized in this state, or

(2) he is working under a contract of hire made in this state, in employment not principally localized in any state, or

(3) he is working under a contract of hire made in this state, in employment localized in another state, whose workmen’s compensation law is not applicable to his employer…

(4) A person’s employment is principally localized in this or another state when,

(i) his employer has a regular place of business in this or such other state and he regularly works at or from such place of business, or

(ii) having worked at or from such place of business, his duties have required him to go outside of the state not over one year, or

(iii) if clauses (1) and (2) are not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state.

At issue in this case was (iii) section above, which I italicized.  Here the Claimant was contending that since he was domiciled in Pennsylvania and he drove over 6,000 miles in Pennsylvania for his job duties, he then meets section (iii) above.

In addition, the Claimant argued the following:

In this regard, Claimant maintains he kept his truck in Pennsylvania, and Employer occasionally dispatched him from his home in Pennsylvania. In addition, the WCJ credited Claimant’s testimony and documentary evidence in the form of daily trip logs

The Court rejected Claimant’s argument.  it noted:

Although Claimant may have spent more time and driven more miles in Pennsylvania than any other state, he did not spend “a substantial part of his working time” in Pennsylvania. Comparatively speaking, Claimant spent only a small percentage more in Pennsylvania than some of the other high totaling states, like Virginia and Ohio. Stated otherwise, he did not work from Pennsylvania “as a rule.”

As you can see, jurisdiction is still a legal ‘gray area’ open to interpretation and ultimately argument.  Jurisdiction is a provision under the Act that is quite fact sensitive and is still developing through jurisprudence.

Given the complexity of Workers Compensation and the extreme importance of individual rights under the Act, it is critical that when you are injured at work, to contact an experienced workers compensation attorney immediately. We’ve said it before and will continue to say it, insurance defense counsel is reviewing and making recommendations on your claim.  Shouldn’t you have professional guidance on your side as well.

If you have been hurt on the job, contact Mooney & Associates immediately. We have offices located throughout Central Pennsylvania, including:  Chambersburg, Mercersburg, Shippensburg, Carlisle, Harrisburg, York, Gettysburg, Hanover, Halifax, Duncannon, Stewartstown.  We can meet you in the location most convenient for you.  As always, our consultations for workers compensation cases are FREE.  Call us at 1-877-632-4656 or email me direct at mab@mooney4law.com.

PA Court: Issuance of a Medical-Only NCP in Workers Compensation differs from Acceptance and Subsequent Suspension of Benefits

The Pennsylvania Commonwealth Court recently distinguished between a Medical-Only Notice of Compensation Payable and an acceptance of a work injury and a subsequent Suspension of benefits, in Sloane v. W.C.A.B (Children’s Hospital of Philadelphia)  No 1399, C.D. 2014(Pa. Cmwlth. 2015).

CommCt

The relevant time lines are this:  An injured worker has three years after the date of the injury to file a Claim Petition to seek workers’ compensation benefits for the injury.  If a Notice of Compensation Payable (NCP) is issued and wage loss benefits are later suspended, the injured worker has 500 weeks, or three years from the date of last payment, whichever is later, to file for a reinstatement of disability benefits.   Do the same rules apply to a Medical-Only NCP that apply to a regular NCP with subsequent suspension?  That is the issue addressed in this case.

Claimant argued that the issuance of a Medical-Only NCP would have the same has the same effect as if a WC Judge issued an Order granting a claim petition with an immediate suspension of disability benefits in cases where medical treatment is required but there is no immediate wage loss.  Therefore, the Claimant argued the appropriate Bureau form would be a Reinstatement Petition, which would make the Petition timely if filed within 500-week period in which an injured workers is eligible for partial disability benefits.

The Workers Compensation Appeal Board rejected the argument, distinguishing between the granting of disability benefits and the issuance of a medical-only acceptance.  The Board’s rationale on a Medical-Only NCP is that the defendant only accepted the injury on a medical basis, not on a earning loss basis.  Essentially, by issuing a Medical-Only, the Employer never accepts wage loss as a result of the work injury.  Since no disability benefits were ever accepted, there are no disability benefits to be reinstated.

The Commonwealth Court agreed.  The Court stated,

Despite the apparent ambiguity relating to the proper form of the Petition, we need not resolve this issue because Claimant’s request for disability benefits for the 2006 injury would be untimely under the limitations periods of Section 413(a) or Section 315. Under Section 413(a), a reinstatement petition must be filed “within three years after the date of the most recent payment of compensation made prior to the filing of such petition.” 77 P.S. § 772. The payment of medical benefits by an employer does not constitute “compensation” for the purposes of Section 413(a) that would act to toll the liability period . . . Since no disability compensation had been paid for the 2006 injury, Claimant was required to establish an entitlement within 3 years of the date of the injury. The Petition filed on December 31, 2011 was therefore untimely under Section 413(a) . . .  Employer made its intent expressly clear that it would pay Claimant’s medical expenses but accepted no liability for wage-loss benefits. Thus, the Petition would also be untimely under Section 315.

The moral of this story.  If a Medical-Only NCP is issued in your case, you have a three year statute of limitation to file a Claim Petition alleging loss of wages as a result of the work injury.  After three years, your claim for wage loss benefits will be barred.  The even stronger moral of this story is, if you have been injured at work, contact a workers compensation Attorney right away.  Use the Mooney & Associates three step procedure when injured at work:  1) tell you employer about your injury right away; 2) seek medical attention immediately; and 3) contact Mooney & Associates at 1-877-632-4656 or email me at mab@mooney4law.com.  Workers Compensation is too complex and your rights in workers compensation are too important to go it alone against an insurance carrier.

What does it cost you to have a consultation with me regarding your workers compensation claim?  NOTHING.  We have full-time offices in Chambersburg, Carlisle, Shippensburg, Hanover, Gettysburg, Harrisburg, and York.  We have other meeting offices throughout South Central Pennsylvania.  We will meet you at the office closest to you.

PA Commonwealth Court changes Impairment Rating Evaluations in Workers Compensation

CommCtThe Pennsylvania Commonwealth Court invalidated Section 306 (a.2)1 of the Workers Compensation Act, as amended, finding the language to be an unlawful delegation of power to a private entity.  Let’s first take a look at the language of Section 306 (a/.2)1.

(a.2)
(1) When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, who is certified by an American Board of Medical Specialties approved board or its osteopathic equivalent and who is active in clinical practice for at least twenty hours per week, chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment.”

The language in dispute is bold and italicized in the above statutory section.

By way of background, once a Claimant has reached at least 104 weeks of total disability, an Impairment Rating Evaluation can take place by request from the Employer/Insurance Carrier.  Should the IRE physician find the ‘whole body impairment’ to be less than 50%, which in most cases it will be under 50%, then disability benefits may be automatically converted or by way of Petition to Modify Benefits, from total disability benefits to partial disability benefits.  It is important to note that this does not affect the actual rate of compensation, but caps the number of weeks benefits are payable to 500 weeks, which is about 9.6 years.

The legal question in this case, Protz v. WCAB (Derry Area School District),  No. 1024 C.D. 2014 (Pa. Cmwlth 2015).  revolved around the edition of the American Medical Association Guidelines used by the IRE physicians.   As you can see above, the Legislature placed language in the Act that stated the “most recent‘ edition should be utilized for the IRE.  Claimant’s attorney in this case argued that at the time the Legislature passed the Act, the 4th Edition of the Guidelines was the latest version, and that any new Edition thereafter was an unlawful delegation to ta private entity, namely, the American Medical Association.

The Commonwealth Court agreed. The Court said;

In this case, the General Assembly adopted as its own the methodology enumerated by the AMA at the time it enacted Section 306(a.2)—
that is, the methodology contained in the Fourth Edition of the Guides. The General Assembly has not reviewed and re-adopted the methodology contained in subsequent editions. Moreover, unlike in Pennsylvania Builders Association, where the General Assembly provided for review of the new codes by the Department of Labor and Industry, in this case, any form of review of subsequent editions of the AMA Guides is wholly absent, leaving unchecked discretion completely in the hands of a private entity.  (Id. at 17)

The Court is essentially stating that the Legislature provided absolutely no administrative means to have each new edition’s standards reviewed by the PA Department of Labor & Industry, or for that matter, any state government agency.  Furthermore, the Court specifically explained why a ‘carte blanche’ or ‘unchecked discretion” to a private entity is not permissible.

Even then if we had found that there are adequate standards allowing for a delegation to a governmental agency, Section 306(a.2)(1) would still be unconstitutional because the delegation here was to a private party. Unlike governmental agencies which are supposed to act disinterestedly and only for the public good, that presumption cannot be made with regard to private entities. There is no accountability to the public, either directly through the rulemaking process providing for public input and comment or indirectly through the appointment and confirmation power and the power of the purse.15  More simply, the keystone behind the prohibition against unlawful delegation is that the General Assembly, not private bodies, enacts laws which the government agencies implement in accordance with the standard given to them in the enactment.16 (Id. at 18)

IRE evaluation must now go back to the 4th AMA Guidelines until such time the Court further addresses the issue ot the Legislature amends the Act to provide for oversight.

Commonwealth Court vacates decision on abnormal working condition standard

CommCtThe Pennsylvania Commonwealth Court has vacated a Workers Compensation Appeal Board (WCAB) decision denying workers compensation benefits to an employee of store that was robbed.   By way of background, the injured employee was working at a store when the store was robbed.  The injured employee was assaulted as a result of the robbery and subsequently filed a workers compensation claim petition based on injuries sustained from the assault and mental distress from the robbery.   The Court agreed with the WCAB that the physical injuries were not that severe to keep the injured employee out of work, but vacated and sent back for the WCAB to determine the abnormal working condition standard based on Payes v. WCAB.

In Payes, a state police trooper was driving patrol in the early morning hours when a woman dressed in all black suddenly ran in front of and was struck by the trooper’s car.  The incident was caught on film by the trooper’s patrol car.   As other troopers arrived on the scene, the injured lady was pronounced dead.  The trooper returned to work, but after four days, his feelings of anxiousness and stress led him to believe he could not continue to perform his job as a state trooper.  Eventually, the trooper filed a claim petition alleging a work-related injury of post traumatic stress disorder.  The important part of this decision was the findings of the original workers compensation judge (WCJ), and more specifically, finding 13.

Based on these credibility findings, the WCJ determined that Appellant had proven a mental injury arising from a work-related mental stimulus. The WCJ further found that, although state troopers may expect to encounter or be involved with violent situations, the particular work-related mental stimulus here was not one normally encountered by or expected of state troopers, as illustrated by the following relevant findings of fact:

13. State Troopers are not in the normal course of their duties exposed to the circumstances that occurred in this case; to wit[,] a mentally disturbed individual running in front of a Trooper’s vehicle while he is operating the vehicle, for no apparent reason. Further, what occurred at the point of impact and immediately thereafter are not working conditions which normally occur for State Troopers[: Appellant’s] attempted but failed resuscitation of the woman he killed on Interstate 81 while vehicular traffic [was] oncoming, waiting for assistance from other troopers.

The PA Supreme Court upheld the WCJ’s factual findings in that the event involving the trooper was not something that would be normally expected in that position.

 

Because Appellant’s injury arose from a single incident, such inquiry rested on whether that incident alone, and not any purportedly comparable sets of incidents, was abnormal. The WCJ found, based on the credible evidence before him, that the type of incident in this case was not one to which state troopers are normally exposed. Thus, unless a reviewing tribunal had set aside this factual finding as arbitrary and capricious, it was bound by it when analyzing the legal issue of whether the working conditions were abnormal . . . 

That is, the record supports the WCJ’s finding that what transpired on November 29, 2006, was not an event normally experienced or anticipated by employees in Appellant’s line of work. Accordingly, Appellant did not have a “subjective reaction to [the] ordinary vicissitudes” of his job, but a reaction to a highly unusual and singular event. Davis, supra at 177. For this reason, as a matter of law, the WCJ’s determination, which correctly applied the WCJ’s factual findings to the appropriate legal construct, is consistent with this Court’s case precedent distinguishing normal from abnormal working conditions.

Breaking it down, we can see three elements develop in showing an abnormal working condition, hence, a mental/mental injury.

  1. Psychological injury must be objectively verified
  2. Injury must be traced to a indentifiable source
  3. The incident alone, and not comparable sets of incidents, was abnormal

These three  elements are the ‘lens’ in which the Commonwealth Court vacated and remanded back to the WCAB for determination of whether an abnormal working condition existed in this case, and hence, a work injury.

PA Supreme Court to remain short-handed

You can read it here.

With Centre County President Judge Thomas Kistler’s announced withdrawal, the state’s high court will remain at five of seven seats, likely until the November elections.  Democrat Ken Gormley, was was the other high court nominee, will sit and watch his nomination die.

Currently, the Supreme Court is divided at 3-21 for the GOP.  The Senate will not act on Gormley’s nomination, because that would put the Court at a 3-3 deadlock.  In theory, does that matter?  No.  In reality, it does.  Politics are a reality when appointing Judges’ at any level of the state judicial system.  Nomination would have to go through the GOP controlled State Senate

Governor Tom Wolf indicated today that he does not plan to put forth any new nominees.  Three seats will be up for election to the high court come this year’s elections.  Here is a slate of possible nominees as of now with Bar Ratings.

Democrats

Christine Donohue, Superior Court judge from Allegheny County, PBA “Highly Recommended”

Kevin Dougherty, Philadelphia Common Pleas Court judge, PBA “Recommended”

John Foradora, Jefferson County Common Pleas Court judge, PBA “Recommended”

Anne Lazarus, Superior Court judge from Philadelphia and chair of the Judicial Conduct Board, PBA “Highly Recommended”

David Wecht, Superior Court judge from Allegheny County, PBA “Highly Recommended”

Dwayne Woodruff, Allegheny County Common Pleas Court judge and former cornerback for the Pittsburgh Steelers (He won a Super Bowl ring in 1979.), PBA “Recommended”

Republicans

Cheryl Lynn Allen, Superior Court judge from Allegheny County, PBA “Highly Recommended”

John Bender, Superior Court judge from Allegheny County, PBA “Recommended”

Anne Covey, Commonwealth Court judge from Bucks County, Republican Party endorsee, PBA “Not Recommended”

Michael George, Adams County Court judge, Republican Party endorsee, PBA “Recommended”

Renee Cohn Jubelirer, Commonwealth Court judge from Centre County and wife of former Lt. Gov. Robert Jubelirer, PBA “Recommended”

Judy Ference Olson, Superior Court judge from Allegheny County, Republican party endorsee, PBA “Highly Recommended”

Paul Panepinto, Philadelphia Common Pleas Court judge, PBA “Recommended”

Correale Stevens, appointed Supreme Court justice from Luzerne County, PBA “Highly Recommended”

Rebecca Warren, Montour County district attorney, PBA “Not Recommended”

Dog bite at work is within Course and Scope of Employment

CommCtOne of the critical elements of proving a Claim Petition in Pennsylvania Workers Compensation is whether the injury occurred in the course and scope of  employment.   The course and scope element has been heavily litigated over the years and the rules are a bit clearer today.  However, at times, course and scope issues still arise.

Recently the Pennsylvania Commonwealth Court addressed the course and scope issue on a dig bite incident that occurred at work.  The facts are quite simple.  In this case, a part-time employee at a restaurant was injured when he was bitten by a co-worker’s dog.  The employer’s contended that the incident occurred while the employee was on break and occurred off the business property in a public alley.  Additionally, the Defendant averred that the employee was warned that the dog had a tendency to snap.   On the other hand, the employee asserted that the employer had two approved smoke breaks, that the employer actually provided an ashtray tower at the location of the incident, and that no positive work order was instructed to not take the break and pet the dog.

The Court upheld the WCJ decision that the course and scope element was met.   The Court’s opinion stated,

Thus, in finding that Claimant was injured in the course and scope of his employment, the WCJ considered the events surrounding the incident and the location where the injury occurred.

The employer also contended that the employees actions were more than a mere, temporary departure from work duties.  Essentially, the employer contended that the act of petting the dog was the act that exceeded more than temporary departure from work activities.  The Court rejected that argument.

This departure from Claimant’s work is not comparable to the departure in Trigon Holdings. Claimant did not make a pronounced departure from his work; 12 rather, he was on a break expressly permitted by Employer in an area designated by Employer as the break area. In addition, Claimant did not feel the need to inform his co-workers that he would be departing from his normal duties as a line cook. Claimant testified that at some point during the smoke break all of the employees on duty that night were outside with him. (2010 FOF ¶ 6; Hr’g Tr. at 8, R.R. at 79a.) Therefore, the WCJ did not err in finding that Claimant’s act of petting the dog was a temporary departure from his work duties. 

Finally, the Court rejected the notion that the employee was willful because he was warned that the dog was aggressive.

Here, before petting the dog, Claimant held out his hand to determine whether the dog would be receptive to him. (Hr’g Tr. at 7, R.R. at 78a.) After determining that the dog would be receptive, Claimant got down on his knee and the dog began to lick his face. (Hr’g Tr. at 7, R.R. at 78a.) Claimant also testified
that he did not do anything to antagonize the dog into biting him. (Hr’g Tr. at 10, R.R. at 81a.) Therefore, Claimant’s act of petting the dog was not “premeditated,deliberate, extreme, and inherently of a high-risk nature,” Penn State University,
15 A.3d at 954, so as to remove him from his course of employment.

The Court wrapped up its affirming opinion by recognizing prior case law that confirmed that smoking during intervals, smoke breaks, do not interfere with work duties and are therefore not deviations from the course and scope of employment.

Court: PPL exonerated from paying $2.5 million to pole painter

The Pennsylvania Superior Court exonerated PPL from having to pay a $2.5 million verdict to an injured workers that was painting a utility pole and fell tot he ground, suffering significant lower extremity and back injuries.   The injured worker was not an employee of PPL, but of a painting contractor.  In an earlier trial, a Jury found PPL 51% liable for damages, and the injured employee 49% liable.

The main issue int his case was ‘retention of control’ and whether PPL retained control over safety issues and matters at the work site.  Retention of control issue is based on a century old decision by the Pennsylvania Supreme Court in that was clarified  Beil v. Telesis Constr. Inc., 11 A.3d  456 (Pa., 2011).

This foundational law is based upon the long-standing notion that one is not vicariously liable for the negligence of an independent contractor, because engaging an independent contractor “implies that the contractor is independent in the manner of doing the work contracted for. How can the other party control the contractor who is engaged to do the work, and who presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with authority.”

The Court clarified the rule in Biel.

The primary question in many premises cases, as is the issue before us, is whether the property owner hirer of the independent contractor retained sufficient control of the work to be legally responsible for the harm to the plaintiff  . . . Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of
work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

The Superior Court found that ashen considering all the facts and factors into retention of control, that PPL did not maintain sufficient control over the painting contractors as to bring about liability upon them.