Michael DePue v. WCAB (N. Paone Construction, Inc.) 

1113 C.D. 2012 (PA. Cmwlth. January 30, 2013)

By: Lisa A. Miller, Esquire

The Commonwealth Court affirmed the Decision of the Appeal Board and WCJ which denied the Claimant’s Review Petition to add a left shoulder injury to the description of his work injury more than two (2) years after the approval of a Compromise and Release Agreement, and also denied Claimant’s Penalty Petition for failure to pay medical bills for the left shoulder injury.

The Claimant sustained a work-related closed head injury on February 26, 1996. On March 3, 2008, the Claimant and Defendant entered into a Compromise and Release Agreement to settle the Claimant’s indemnity benefits for a lump sum amount of $175,000.00 as “full and final satisfaction of all future wage loss benefits.”

The injuries described in the C&R Agreement were described as “any and all injuries. . . . including but not limited to the accepted injuries of a severe closed head injury with seizure disorder, and short term memory loss.” The Defendant agreed to continue to pay “all reasonable and related medical bills.” 

The Claimant filed a Penalty Petition alleging that Defendant failed, neglected, or refused to pay medical bills. The Claimant sought a fifty (50%) percent penalty on $1,200.00 in medical bills. The Claimant also filed a Review Petition alleging that the description of his work injuries were incorrect. 

The Defendant denied the Claimant’s allegations, and sought dismissal of the Review Petition invokingres judicata and collateral estoppel.

The Claimant submitted a Pre-Trial Memorandum in which he alleged that Defendant informed him in January 2010 that it would no longer pay for treatment for his left shoulder injury.

The Defendant submitted the WCJ’s Decision approving the Compromise and Release Agreement; the transcript of the Compromise and Release Hearing; and a packet of Proposed Addendums to the Compromise and Release Agreement prepared by Claimant’s counsel with changes, including a hand written notation made by Defendant’s counsel thereon; and the February 27, 2008 letter that Defendant’s counsel sent to Claimant’s counsel. 

In an Interlocutory Order, the WCJ precluded Claimant from proceeding on the Review Petition, and scheduled a hearing on the Penalty Petition to determine whether the Claimant was alleging unpaid medical bills from the left shoulder injury only, or for other injuries accepted by the Defendant. The WCJ indicated that if Claimant was alleging the medical bills only for the left shoulder injury, the Penalty Petition would be denied. Claimant’s counsel stated that the Penalty Petition was related only to the left shoulder injury, and the WCJ denied the Review and Penalty Petitions. 

The WCJ concluded that the Review Petition was barred byres judicatabecause the Claimant was aware of the left shoulder injury at the time of the C&R, and agreed not to include it in the Compromise and Release Agreement. The WCJ relied onWeney v. WCAB (Mac Sprinkler Systems, Inc.),960 A.2d 949 (Pa. Cmwlth. 2008). InWeney the Claimant’s first Review Petition was resolved by a Stipulation, in which the parties agreed to amend the NCP to include a shoulder injury. Three (3) days after the WCJ approved the Stipulation and granted the Review Petition, the Claimant filed another Review Petition to amend the NCP to add neck or cervical spine injuries. The Court concluded that the second Petition was barred by theres judicata because the Claimant was aware of those injuries and their causal relationship to the work incident during the first Review Petition proceeding, and should have litigated the claim during that proceeding. 

The Appeal Board affirmed the WCJ’s Decision, concluding that the evidence did not indicate that the C&R Agreement was entered into by unilateral or mutual mistake.  The Board determined that the C&R Agreement was final and binding, and that the Review Petition was barred byres judicata. The Board noted the Claimant was attempting to raise a matter in his Review Petition that should have been litigated during the earlier proceeding on the Compromise and Release Agreement underWeney.

The Claimant argued that the Compromise and Release Agreement should be “corrected” to add the left shoulder injury to the description of his work injuries.  The Claimant alleged that the left shoulder injury was “erroneously” omitted in the final draft of the Agreement. Claimant contends that the Employer routinely paid medical bills for the left shoulder injury, and that it knew that the bills were “casually related to his injuries.” Claimant disputed thatres judicata applied to the matter noting that there was no prior litigation involving a request to amend the description of his work injuries.

Employer argued that the Claimant flagrantly misrepresented that the left shoulder injury was erroneously omitted in the final draft of the Compromise and Release Agreement.  Employer contended that the Claimant was entitled to receive medical benefits only for the injuries described in the Compromise and Release Agreement as accepted by the Employer, and that the Review Petition was barred byres judicata and collateral estoppel. 

Section 449(a) and (b) of the Act provides that:

a) Nothing in this Act shall impair the right of the parties interested to compromise and release …any and all liability which is claimed to exist under this act on account of injury or death.

b) Upon or after filing a Petition, the Employer or Insurer may submit the proposed Compromise and Release by stipulation signed by both parties to the WCJ for approval. The WCJ shall consider the Petition and proposed Agreement in open hearing and shall render a Decision. The WCJ shall not approve any Compromise and Release unless he first determines that the Claimant understands the full legal significance of the Agreement. The Agreement must be explicit with regard to payment, if any, of reasonable, necessary and related medical expenses. 

In enacting Section 449 of the Act, the legislature intended a Compromise and Release Agreement to be “on equal footing with civil settlements” in order to promote a public policy of encouraging the parties to settle disputes and bring them to finality. Stroehmann Bakeries, Inc. v. WCAB (Plouse),768 A.2d 1193, 1196 (Pa. Cmwlth. 2001).

Defendant’s exhibits demonstrated that before the execution of the Compromise and Release Agreement, Claimant’s counsel sent a Proposed Addendum to the Agreement to Defendant’s counsel. 

Paragraph Twenty-Four (24) of the Proposed Addendum stated “the accepted injuries includes ‘closed’ head injury, seizure disorder, left shoulder fracture, chronic pain, loss of short term memory and bi-polar disorder. Defendant agrees to continue to provide medication and medical care which is reasonable and necessary, and casually related to his injuries.”

Defendant’s counsel sent the Proposed Addendum back to Claimant’s counsel after crossing out the injuries of “left shoulder fracture”, “chronic pain”, and “bi-polar disorder” in paragraph 24, and placing a hand written notation, which stated that “we already negotiated these injuries at the time of the ‘settlement’”. In a letter dated February 27, 2008, that accompanied the Proposed Addendum sent back to Claimant’s counsel with his changes and notation, Defendant’s counsel further stated “we previously negotiated the accepted injuries in 2007 and those are the only injuries I will outline on the Agreement.” The C & R Agreement signed by the Claimant and Defendant described Claimant’s injuries as accepted by Defendant as “a severe closed head injury with seizure disorder and short term memory loss” and omitted the other injuries listed in the Proposed Addendum. 

At the March 3, 2008 hearing, the Claimant testified that his head injury affected mostly his short term memory and caused seizures.  He was not asked, and did not testify as to the left shoulder injury. 

The WCJ found that Claimant understood the full legal significance of the Agreement “as regards to his work related injury and right to Worker’s Compensation benefits.”  The WCJ determined that the parties entered into a “valid and binding Agreement” Department of Labor and Industry, Bureau of Worker’s Compensation v. WCAB (Ethan-Allen Eldridge Division),972 A.2d 1268 (Pa. Cmwlth. 2009).  An approved Compromise and Release Agreement can be set aside only upon a clear showing of fraud, deception, duress, a mutual mistake or unilateral mistake caused by an opposing party’s fault. Farner v. WCAB (Rockwell Int’l), 869 A.2d 1075 (Pa. Cmwlth. 2005);Barsczzewski v. WCAB (Pathmark Stores, Inc.), 868 A.2d 224 (Pa. Cmwlth. 2004).

After negotiations with the Defendant, the Claimant agreed to omit the left shoulder injury from the description of his injuries accepted by the Defendant in the Compromise and Release Agreement. The record did not support Claimant’s assertion that the left shoulder injury was erroneously omitted in the final draft of the Compromise and Release Agreement. The Compromise and Release Agreement was final and binding on the parties, and may not be amended after its unappealed approval period.

Once a Compromise and Release Agreement is approved, any issue which was not expressly reserved in the Agreement may not be raised later.  Department of Labor and Industry, Bureau of Workers’ Compensation v. WCAB (U.S. Food Service), 932 A.2d 309 (Pa. Cmwlth. 2007). Because the Claimant did not expressly reserve his right to add the new injury to the description of his work injuries, he was precluded from doing so more than two (2) years after the approval of the Compromise and Release Agreement.

Claimant argued that the description of the “injury” in the Compromise and Release Agreement as “any and all injuries” sustained in Employer’s workplace indicates the party’s intention to include the left shoulder injury in the injuries accepted by the Defendant. The Claimant relied on the contract construction rule that the intention of the parties must be ascertained from the document itself, if its terms are clear an unambiguous. 

However, Employer did not accept its liability for the left shoulder injury in the NCP or in any Agreement, and specifically refused to include it as part of the Compromise and Release. Nor was there any prior decision finding Defendant liable for that injury. 

The Court rejected the Claimant’s reliance on the Doctrine of Promissory and Equitable Estoppel. Promissory estoppel may be invoked to enforce a promise made by a party to an opposing party when there is no enforceable agreement between the parties. Crouse v. Cyclops Indus., 560 Pa. 394, 745 A.2d 606 (2000). 

In order to maintain an action in promissory estoppel, the aggrieved party must show the (1) the promissor made a promise that he or she should have reasonably expected to induce action or forbearance on the part of the promisee; (2) the promisee actually took action refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise.  The essential elements of equitable estoppel are that the party’s inducement of the other party to believe certain facts to exist and the other party’s reliance on that belief to act. Westinghouse Elec. Corp/CBS v. WCAB (Korach),584 Pa. 411, 883 A.2d 579 (2005). In the absence of “expressly proved fraud, there can be no estoppel based on the acts or conduct of the party sought to be estopped, where they are as consistent with the honest purpose and with absence of negligence as with their opposites.” Westinghouse, 584 Pa. at 423, 883 A.2d at 586. 

Nothing in the record suggests that Defendant promised to continue to pay medical bills for the left shoulder injury, and that Claimant relied on such promise to enter into the Compromise and Release Agreement. The record demonstrates that he negotiated the extent of his work injuries with the Employer, and ultimately agreed to omit the left shoulder injury in the Agreement. Claimant can not rely on the Employer’s voluntary payment of the medical bills for the left shoulder injury to support his estoppel claims. The Court has consistently held that Employer’s voluntary medical payment does not constitute an admission of liability for the injury. Securitas Sec. Servs. USA, Inc. v. WCAB (Schuh),16 A.3d 1221 (Pa. Cmwlth. 2011); Findley Township v. WCAB (Phillis),996 A.2d 111 (Pa. Cmwlth. 2010). To hold otherwise would be contrary to the Act’s policy of encouraging Employers to voluntarily pay medical expenses to injured employees to assist them in regaining health without fear of being later penalized for the payment. Defendant’s payment of medical expenses was not an admission of liability for the left shoulder injury and cannot be construed as a promise to continue to make such payment. 

In conclusion, the Claimant’s Review Petition was barred by the final and binding Compromise and Release Agreement. 

  PARTNER ANNOUNCEMENT 

THE SMART ACT ENACTED

By Kevin L. Connors, Esquire

On January 10, 2013, theSmart Act was signed into Law by President Obama.

The Smart Act stands for “The Strengthening Medicare And Repaying Taxpayers Act”.

This legislation reforms several aspects of Medicare requirements for conditional payments.

Under Section 201 (Conditional Payment Final Demand and Use of Website), efficiencies have been approved in the conditional payment system, with the following reforms:

Under Section 202 (Thresholds for Reporting a Conditional Payment Reimbursement); by November 15^th of every year, the Secretary will have to publish a threshold, wherein reporting conditional payment reimbursements shall not apply.

This procedure will not take effect until 2014.

Under Section 203 (Discretionary Fines for Non-Compliance of Mandatory Insurance Reporting):

Fines for non-compliance with Mandatory Insurer Reporting will now be discretionary, rather than mandatory.

The guidelines surrounding discretionary application have yet to be created.

Within sixty (60) days of the passage of the Smart Act, being signed into law as of January 10, 2013, CMS will seek proposed comments on which action/practices should or should not be sactionable, with publication of the proposed comments in the Federal Register.

This section established an enactment date of March 10, 2013.

Under Section 204 (Social Security Numbers); Social Security numbers will no longer be required on health identification claim forms. CMS has been given eighteen (18) months after the enactment date of theSmart Actto publish rules surrounding this declaration.

Under Section 205 (Statute of Limitations for Conditional Payment Recovery):

The statute of limitations for conditional payment recoveries is three (3) years after the receipt of notice of a settlement, judgment, award, or other payment made.

Effective as of January 1, 2014, certain liability claims will be exempt from reporting and reimbursement, if the claim falls below the annual threshold as calculated by the Secretary of Health and Human Services.

Civil penalties for non-compliance with mandatory insurance reporting requirements will be discretionary, and can be up to $1,000.00 for each day of non-compliance, with respect to each Claimant.

The Smart Act can be accessed online through several links, to include CMS.gov.

Copies of the Smart Act are also available through our office.

This is long overdue reform, intended to simplify what has become a Sisphysian ordeal, more complicated than necessary, and fraught with both frustration and uncertainty.

ConnorsLaw LLP

Trust us, we just get it! It is trust well spent!

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

PENNSYLVANIA RATE INCREASE FOR WORKERS’ COMPENSATION BENEFITS

By Kevin L. Connors, Esquire

Effective as of January 1, 2013, the Pennsylvania Bureau of Workers’ Compensation increased the maximum compensation payable rate, for temporary total disability benefits, to a weekly rate of $917.00.

This translates into yearly compensation benefits equaling $47,684.00.

This temporary total disability benefit rate is applicable to any pre-injury average weekly wage that equals or exceeds $1,375.90, representing sixty-six (66) and two-thirds (2/3) of the pre-injury average weekly wage.

Between a pre-injury average weekly wage of $1,375.50 and $687.76, the average weekly wage is multiplied by sixty-six (66) two-thirds (2/3), for the temporary total disability benefit rate.

For pre-injury average weekly wages between $687.75 and $509.44, the Bureau has assigned a temporary total disability benefit rate of $458.50 per week, yielding $23,842.00 in yearly compensation benefits.

For those earning $509.43 per week or less, the temporary total disability benefit rate will be determined at a ninety percent (90%) rate.

The 2013 maximum compensation payable rate represents a rate increase of approximately 3.265 percent over the 2012 rate.

For the last five (5) years, the maximum rates have been:

Access to Pennsylvania’s Bureau of Workers’ Compensation, now known as the Office of Adjudication, is available through the following link:

http://www.portal.state.pa.us.

ConnorsLaw LLP

Trust us, we just get it! It is trust well spent!

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

MISPLACED PRIVACY

By Kevin L. Connors, Esquire

“No matter where you go, there you are!”

If the above quotation, mouthed by the character of Buckaroo Banzai, played without lips by Peter Weller, later infamous as the RoboCop character, when Buckaroo, playing with  his rock band, the Hong Kong Cavaliers, tried to talk Penny Pretty, played by Ellen Barkin, out of committing suicide, as the band was playing at a bar in Grover’s Mill, New Jersey, also infamous as the Martian landing site in Orson Wells’ radio broadcast in 1937, in the classic, and yes, it should be watched at least once a year, movie, The Adventures of Buckaroo Banzai Across the 8th Dimension.

If that “no matter…” sounds vaguely familiar, it is and will always remain, incisively existential in perhaps an all too obvious paradoxical universe of Berkleyan idealism, posited by the English philosopher, George Berkley, credited with the development of the philosophy of subjective idealism, also sometimes referred to as empirical idealism, which point will soon prove all too true for you the reader, as Berkley asked “if a tree falls in the forest, and no one is there, does it make a sound”?

Now, if you are Dirty Harry, you would ask “Well, did it feel lucky”?

So what, if anything, do the above ramblings have to do with litigation, a question perhaps best answered by Jack Sparrow’s character in Pirates of the Caribbean, who quixotically confessed “It’s nice to be here, it’s nice to be anywhere”.

And, of course, it might well depend upon the presidential precedent of “it depends upon what the meaning of the word is, is?”

Yes, there is a point.

At what point is anything private, or can legally be expected to support a claim of privacy, when posting stuff about yourself, in whatever medium or format, on the internet, seemingly the most public medium in the history of human civilization, where you have no control over what happens to whatever you post after it is posted, to include what others who have been exposed to your posting might do with it, with or without your permission.

And if you think that whomever or whatever you have shared this personal information or data with, should stop to consider what they should or should not do with it, after they have been exposed, then you are, quite simply, both clueless and naive.

One might precede the other, although the more relevant thought might be, what were you thinking if at all, when you posted that thought you thought so brilliant?

And yes, we are finally at our point of departure, which is the always fascinating battles, in the context of discovery, motions and arguments, over what is, or is not, discoverable, with the flashpoints being relevance and expectations of privacy. 

And into that conundrum, with those against whom social media and discovery requests are made, claiming “expectations of privacy”, and with those seeking social media discovery, contending that there can be no “expectation of privacy” in a medium so universally visible and accessible.

Having previously reported on several Facebookian Court rulings in the past, the newest rulings, by Courts in Pennsylvania, and in other jurisdictions, continue to cement the requirements both for seeking and disclosing social media discovery.

Recent Pennsylvania Rulings

Two recent Pennsylvania rulings are of interest.

The rulings areMazzarella v. Mount Airy Casino Resort,a case decided in the Monroe County Court of Common Pleas, andSimms v. Lewis,decided in the Indiana County Court of Common Pleas.

Mazzarella v. Mount Airy Casino Resort

Mazzarellais a ruling issued on November 7, 2012.

It involved a premises liability slip, and fall case, with the Trial Court Judge deciding, correctly we think, that the Plaintiffs expectation of privacy in her social media activity was “misplaced”, as the Trial Judge, the Honorable David Williamson, ruled that “those who elect to use social media, and place things on the internet for viewing, sharing and use with others, waive an expectation of privacy”.

So ruling, Judge Williamson held that the Defendant’s social media discovery request was not a violation of privacy, with the Plaintiff being ordered to answer the Defendant’s discovery request.

The discovery request in question sought disclosure of the Plaintiff’s social media user name and password, with there being no time limitation imposed upon the Defendant for access, as general prior Court rulings on this issue in other jurisdictions, have imposed a time limitation on the requesting parties’ access to the disclosing parties’ social media.

Simms v. Lewis

Simms is a ruling decided by the Honorable Thomas Bianco in the Indiana Court of Common Pleas.

Simms involved the Plaintiff’s personal injury lawsuit, following a motor vehicle accident, with the Plaintiff claiming that her injuries were both serious and permanent.

After determining that the Plaintiff had a social media account with Facebook, My Yearbook, and MySpace, and that each of the accounts had been active after the Plaintiff was injured in the motor vehicle accident, the Defendant sought access to the Plaintiff’s social media accounts, filing a Motion to Compel when the Plaintiff refused to allow access.

In the Defendant’s Motion to Compel, the Defendant indicated that the front page of the Plaintiff’s MyYearbook account contained the Plaintiff stating “chillin with my girl tonight.  We’re going to do some Zumba fitness: ) so excited!!! HTC:p,”.

Not surprisingly, the Defendant sought the Plaintiff’s user name and passwords for her social media accounts with Facebook, MyYearbook, and MySpace.  Access to the accounts was sought in order to view private portions and pages on the site, with the Plaintiff impolitely declining to provide that information, resulting in the Defendant filing a Motion to Compel.

TheSimmsCourt began with the premise “as a general rule, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” George v. Schirra, 814 A. 2.d 202 (PA.Supr. 2002).

It also reflected on Pennsylvania Rule of Civil Procedure No. 4003.1.

However, the Court indicated that there were no Pennsylvania Appellate Court cases that addressed the issue of discovery requests for information concerning an individual’s social networking account.

While there were no Appellate rulings on that issue, there were a number of Trial Court rulings, with theSimmsCourt citing to the Zimmerman v. Weiss Markets Decision out of Northumberland County in May of 2011, where the Plaintiff had been ordered to provide login and password information for the Plaintiff’s Facebook account, although the Trial Court in Zimmerman specifically limited access to a threshold determination obtainable from access to the Plaintiff’s public page, requiring that the public pages indicate that private postings might contain relevant information.

Adopting theZimmerman threshold, theSimmsCourt ruled that the Defendant must first show that access to the Plaintiff’s social media account would lead to the discovery of relevant information, which the Defendants were able to sustain inSimms, but only as to the Plaintiff’s MyYearbook account.

TheSimms Court denied the Defendant’s request for disclosure of the Plaintiff’s social media account user name and password for the Plaintiff’s Facebook and MySpace accounts, as the Court indicated that the Defendant “has failed to articulate the factual predicate necessary to meet his burden” with regard to those accounts.

So, while an expectation of privacy might be “misplaced”, the right to seek disclosure of social media user information is not absolute, and may well require a requesting party to meet a threshold pre-requisite, proving that public postings implicate the potential relevance of private postings.

New York, New York

Hot off the presses, is the ruling of the United States District Court for Eastern District of New York in the Federal District Court case of Karissa Reid v. Ingerman Smith LLP, which involved the Plaintiff suing the Defendant for economic and non-economic damages arising from the Plaintiff’s alleged sexual harassment by an employee of the Defendant.

In the course of discovery being conducted, the Defendant sought information relating to the Plaintiff’s social media accounts.

The Federal District Court Judge granted that Motion in part, and denied the Motion in part.

Recognizing that the law regarding the scope of discovery of electronically-stored information (ESI) remained unsettled, the Court also indicated that there was no dispute that social media information may be a source of relevant information that is discoverable.

This is particularly true in cases involving claims of personal injury, where social media information may reflect a “Plaintiff’s emotional or mental state, their physical condition, activity level, employment, this litigation, and the injuries and damages claimed.”

The Court cited toSourdiff v. Texas Roadhouse Holdings, LLC a case decided by the United States District Court for the Northern District of New York, in 2011.

As an example, the Court indicated that Plaintiffs who had placed their emotional well-being at issue, in the course of asserting claims of sexual harassment or discrimination, had been subject to some Courts finding that “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the contents’ posting.” Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. 2009).

Conversely, other Courts had observed that “the relevance of the content of a Plaintiff’s Facebook usage… is more in the eye of the beholder than subject to strict legal demarcations.” Bass.

Tripping the light fandango, whether electronically-stored and disseminated on the internet or not, “anything that a person says or does might in some theoretical sense be reflective of their emotional state.” Rozell v. Ross-Holst, 2006 WL 163143 (S.D.N.Y. 2006).

InReed, the Defendant claimed that the Plaintiff’s Facebook postings were relevant, as those postings contradicted the Plaintiff’s claims of mental anguish, allegedly resulting from her alleged sexual harassments, and subsequent termination of employment.

Not surprisingly, the Plaintiff argued that she should not be subject to broad discovery, to include the entirety of her social media accounts, potentially resulting in disclosure of private information.

Considering both arguments, for disclosure and in opposition to disclosure, the Court held in Reed that photographs and comments that the Plaintiff had posted on her publicly available Facebook pages provided probative evidence of her mental and emotional state, and the same could reveal the extent of activities in which she was engaged.

The Court also found that her private postings might likewise contain relevant information similarly reflective of her emotional state.

More germane, maybe to the point of this discourse, the Court further ruled that “even had the Plaintiff used privacy settings that allowed only her ‘friends’ on Facebook to see her postings, she had no justifiable expectations that her friends would keep her profile private”, citing toU.S. v. Meregildo, 2012 WL 3264501 (S.D.N.Y. 2012).

Moreover, the Courts founds that the wider the Plaintiff’s circle of friends might be, the more likely that her post would be viewed by someone that she never expected to view her post.

Although the Court declined to require full disclosure of all materials in the Plaintiff’s social media accounts, holding that not all postings might be relevant to her claims, the Court did order the Plaintiff to provide access to postings on her social media accounts that dealt with her social activities, where relevant to her claims of emotional distress and loss of enjoyment of life.

The Court also indicated that those postings might also provide information regarding potential witnesses with knowledge as to the Plaintiff’s social activity, as well as to the Plaintiff’s claims of emotional distress and loss of enjoyment of life.

So, in conclusion, it really does depend on what the meaning of the word is, is, aswell as no matter what your post, it might become relevant in discovery.

All three of the social media decisions reflected upon herein, clearly established a requesting parties’ right, dependent upon a threshold factual predicate, being that the parties subject to disclosure, and their public postings, suggests the availability of relevant information entitling the requesting party to seek disclosure of private postings, with there being a secondary predicate, being that the information being sought is “relevant” to the claims being asserted by the party to disclosure, as well as obviously relevant to the party seeking disclosure.

Kevin L. Connors can be reached at: kconnors@connorslawllp.com

THE MOST IMPORTANT 2011/2012 RULINGS BY

PENNSYLVANIA COURTS ON WORKERS’ COMPENSATION ISSUES

By: Jeffrey D. Snyder

I.      Pennsylvania Supreme Court:

Supersedeas Fund reimbursement; medical expense: 

Dept. of Labor & Industry v. WCAB (Crawford), 23 A.3d 511 (Pa., 2011)

Supersedeas Fund reimbursement of medical expense will be based on the date of the presentation of an invoice for medical services (implied to have been presented in due course), not the date of service. This case further suggests that supersedeas may be granted as to past medical expense, following the reasoning ofMark v. WCAB (McCurdy), 894 A.2d 229 (Pa. Cmnwlth., 2006)which held that a retroactive payment made after a denial of supersedeas (there in satisfaction of a granted claim) is reimbursable by the Supersedeas Fund. Note that the Commonwealth Court has separately concluded that the Fund isnot liable for reimbursement of funds owed a petitioner by a third party (in that case an employer was exonerated in favor of another, joined, employer).GMS Mine Repair & Maintenance, Inc., No. 92 C. D. 2011 (Pa. Cmnwlth.)

Statutory Notice; sufficiency:

Gentex Corp. v. WCAB (Morack), 23 A. 3d 528 (Pa., 2011)

The time, place and manner notice requirements of the Act are to be liberally construed from the totality of the circumstances. The admitted deficiency in notice here was the description/diagnosis of the injury, omitted by that claimant from her voicemail to the employer – a voicemail which merely indicated “work-related problems”. The Court considered this notice to be sufficient under its perceived mandated liberal interpretation to satisfy section 312 of the Act, which per the Court requires a “fact intensive inquiry”.

Employer provided Uninsured/Underinsured (UM/UIM); coverage exclusion:

Heller v. Pennsylvania League of Cities & Municipalities, No. 16 WAP 2009 (Pa., 2011)

Employer provided UIM coverage may not exclude from that coverage an employee entitled to workers’ compensation benefits since employees in the course of employment are the expected UIM claimants under the policy and therefore that exclusion would render the UIM coverage illusory.

In a case decided at about the same time, the Court held that an employee’s personal UM coverage would not extend to a work vehicle if the personal policy has such an exclusion (a ‘regular use’ clause). Williams v. GEICO, 2011 WL 4953433 (Pa., 2011) 

Statutory employment; owner of personal property:

Six L’s Packing Co. v. WCAB (Williamson), 2012 Pa. LEXIS 1238

In a case with coverage overtones, the Supreme Court held that an owner of personal property (i.e., a trailer) can be a statutory employer as to an entity with which it contracts for work that is a regular or recurrent part of the declared statutory employer’s business. Control of premises is not required under this framework for a finding of statutory employer. It is important to note that Six L’s did not have the Uninsured Employer Guaranty Fund (UEGF) as a party in the case. Questions may arise as to whether the UEGF is primary to any statutory employer for liability purposes.

Specific loss; average weekly wage (AWW) for specific loss purposes is AWW at time of resolution into specific loss - even where claimant is working at that time for a new employer:

Lancaster General Hospital v. WCAB (Weber-Brown), No. 69 MAP 2010 (4/11)

The claimant sustained an eye injury while earning $8.00 an hour at the Hospital. She had episodic flare-ups which treated and resolved. After she began working for Heart Group - at $21.00 an hour – she experienced a flare-up which did not resolve. A corneal implant then failed, and the claimant was left with loss of vision constituting specific loss. The Court held that the date of a specific loss is when a doctor tells the patient that there has been a loss of use for all practical intents and purposes that is work related, even if that means using wages from a new employer for the calculation of AWW. The Court reasoned that Section 309 of the Act, while referring to ‘employers’, was not specifically referring to any particular employer. The Court also noted that wages earned from other employers are utilized in other contexts, for example in the calculation of seasonal employment AWW.

II.     Pennsylvania Commonwealth Court:

A.     Burden of proof cases:

Challenge to relatedness of medical expense involving recognized body part; employer’s obligation to file Petition to Review:

CVA, Inc. v. WCAB (Riley), No. 2658 C. D. 2010 (10/11)

This case involves TMR (magnetic) treatment disputed as unrelated to the work injury. The Court indicates that in such a circumstance the employer is obligated to file a Petition to Review (treatment was to same body part as listed on NCP).

On another point, the Court followed prior case law stating that where a case proceeds on medical report, the medical report(s) must be signed. [by the provider]. Montgomery Tank Lines v. WCAB (Humphries), 792 A.2d 6 (Pa. Cmnwlth., 2002)

Maximum Medical Improvement (MMI) for Impairment Rating Evaluation (IRE) purposes is date specific:

Westmoreland Regional Hospital v. WCAB (Pickford), No. 1188 C. D. 2009 (9/11)

An IRE rating is not invalidated (i.e., the MMI assessment is unaffected) by a claimant demonstrating a change in condition over time. There were no objective signs of the work injury, Reflex Sympathetic Dystrophy,at the time of the IRE. The lack of objective findings was consistent with a progress note of the treating physician for a visit the day before the IRE which also reflected no objective findings.

Job availability; required where a claimant is receiving a disability pension (rather than regular retirement) even where claimant is admittedly not actively seeking employment:

City of Pittsburgh v. WCAB (Marinack), No. 100 C. D. 2011 (1/12)

The claimant sustained orthopedic and psychological injuries and was released to work with restrictions some four years later. He had been turned down for a disability pension because he was discharged from employment for cause, and for the same reason was not eligible for a retirement pension. He did apply for two jobs, and there were several visits to the Office of Vocational Services. The Court ruled that without an admission of retirement or the receipt of a retirement pension, the employer had the burden of proof to establish available work, for example through an Earning Power Assessment. “Accordingly, it was employer’s burden to show that it assisted claimant in returning to the work force, and it did not present such evidence.”

Discharge from employment for cause; entitlement to wage loss benefits on a Claim Petition:

BJ’s Wholesale Club v. WCAB (Pearson), No. 2010 C. D. 2011 (3/12)

The employer had a substance abuse policy which allowed up to termination of employment for being under the influence of alcohol while working. The claimant, asserting a work related injury after a customer ran over her foot with a shopping cart, was provided with suitable work. Her Claim Petition sought wage loss benefits from the date of her termination from employment which followed a .108 blood alcohol result. She was not visibly intoxicated, but there was medical testimony accepted as credible that at .108 she was under the influence, mirroring the language contained in the employer’s substance abuse policy. The Court held that the discharge for cause barred wage loss benefits, with the burden of establishing a causal link between wage loss and the work injury on a Claim Petition belonging to the claimant.

Fatal Claim; burden of proof; not relaxed:

Werner v. WCAB (Greenleaf Service Corporation), No. 25 C. D. 2011 (4/11)

Here, the issue was course of employment for a decedent with a home office. The decedent was found unresponsive in his home office, after perhaps being injured falling outside his home where blood was found. The widow/claimant could not establish what the decedent was doing while injured. The record was unclear as to cause, location and time of the injury. The dissent argued that a home office should be treated the same as an employer’s premises and that minor deviation did not break course of employment.

Accidental fatal drug overdose; drugs prescribed for the work injury; Utilization Review:

J. D. Landscaping v. WCAB (Heffernan), No. 1866 C. D. 2010 (10/11)

Decedent accidentally overdosed on medication prescribed by the sister/doctor of his treating physician. Two days prior to the prescriptions by the sister, the same prescriptions by brother were found not reasonable or necessary by Utilization Review (UR). The employer argued that because the prescriptions were not reasonable or necessary – further arguing that the UR should extend to the sister – it should not be liable for the resulting effect – death – from ingesting the prescriptions. The Court defined the claimant’s burden as establishing that the decedent died as the result of medical treatment for the work injury. The Court cited to multiple cases standing for the proposition that the issue of causation is separate and distinct from the reasonableness and necessity of medical treatment. The Court explicitly considered the UR Determination irrelevant to the discussion.

Disfigurement award; unsightliness:

Walker v. WCAB (Health Consultants), No. 492 C. D. 2011 (2/12)

A claimant must establish that otherwise compensable scarring is unsightly as a prerequisite to an Award for disfigurement. Here, the claimant had scars on her nose, and the tip of her nose was crooked following two surgeries. The WCAB reversed the WCJ’s Award after viewing the scarring itself, finding that the crookedness was not unsightly. The Commonwealth Court no longer independently views disfigurement, and deferred to the viewing by the WCAB.

Withdrawal from the labor force; receipt of Social Security disability and ability to engage in substantial gainful activity:

Burks v. WCAB (City of Pittsburgh), No. 980 C. D. 2011 (11/11)

“We agree with employer that, because claimant sought a disability pension that was based on her inability to engage in substantial gainful activity and because claimant’s work injury did not prevent claimant from engaging in substantial gainful activity, claimant voluntarily withdrew from the workforce.”

In footnote, the Court commented that it would be pointless to require an employer to establish job availability where a claimant has removed himself from the workforce. It appears important to the Court’s reasoning that the work related condition resulted in a light category work release while the non-work related conditions translated into a sedentary category release, thus establishing, overall, some residual work capacity trumped by the claimant’s implied admission of withdraw based on seeking the disability pension.

Funded employment; treated no differently than any other employment for a claimant seeking to reinstate within three years of date of last payment of partial wage loss benefits:

Sladisky v. WCAB (Allegheny Ludlum Corp.), No 67 C. D. 2011 (11/11)

The claimant was receiving partial wage loss benefits in funded employment. The funding ended when the claimant received 500 weeks of those partial benefits. The Court held that the claimant’s burden of proof on his post 500 week Petition was to show a worsening of condition to the extent of establishing the inability to do the light/funded employment. The claimant retired, and as such could not work in the employer’s Union facility, hence the funded employment elsewhere. The claimant agreed that but for the lack of funding and layoff, he would have continued working at the funded employment, thus defeating his burden of proof.

For filings within 500 weeks, the burden is to show that the job is no longer

available. The Court: “Simply, there is nothing untoward about funded employment. It is a legitimate way to bring an injured claimant back to work and reduce his disability from total to partial.”

B.     Supersedeas Fund reimbursement case

Supersedeas Fund reimbursement; availablity on a Petition to Review to set aside a Notice of Compensation Payable based on concealed medical history:

Comcast Corporation v. WCAB (Jones), No. 2208 C. D. 2010 (11/11)

Overruling almost a quarter century of precedent, the Court held that Supersedeas Fund reimbursement is available in any case where a Notice of Compensation Payable (NCP) is set aside on the basis of a concealed medical history (and should probably be interpreted expansively) since the statutory language provides that reimbursement is available “in any case”. The Court rejected prior precedent that relied on reasoning suggesting that benefits are due and payable under a NCP until it is actually stricken, pointing out that benefits payable under an open but later stricken NCP in general are no different than benefits paid under an open NCP while asserting a change in status (i.e., termination, suspension or modification) and should be treated no differently for reimbursement purposes.

C.     Enforcement cases

General Release of employment claim; obtained in connection with the Compromise and Release of a Workers’ Compensation case:

Miller v. Tyco Electronics, Ltd., 2011 U. S. Dist. LEXIS 135037 (M.D. Pa. 2011)

The claimant signed a General Release in connection with the resolution of her workers; compensation case, releasing her employment claim being investigated by the Pennsylvania Human Relations Commission (PHRC). The PHRC later issued a no cause letter, after which the claimant filed suit. The Court held that the suit was not released since the Release was unclear as to whether it was releasing the PHRC investigation based claim or the resulting suit which followed the no cause letter. The Court considered the claimant’s limited education, limited time to consider the matter (15 minutes before the workers’ compensation hearing) and lack of separate consideration for the Release.

Resignation of employment; obtained in connection with Compromise and Release Agreement:

Lee v. Unemployment Compensation Board of Review, No. 2085 C. D. 2010 (1/11)

In short: “Finding these [discussed] cases persuasive, we adopt their rationale. Accordingly, we hold that when a claimant agrees to execute a resignation/release in order to settle a workers’ compensation claim, the claimant terminates her employment voluntarily without necessitous and compelling cause.”

D.     Limitation cases

Petition to Reinstate from a Suspension filed more than 500 weeks after suspension; time barred; statute of repose:

Palaschak v. WCAB (US Airways), No. 1699 C. D. 2010 (6/11)

The claimant was injured in 1992. Benefits were suspended on February 5, 1996. The claimant filed a Petition to Reinstate on April 21, 2006. The claimant argued that he was not time barred in seeking total benefits, in that he should have three years from the provision of modified work to file a claim for benefits. The employer argued that the time limit was 500 weeks form the date of last payment, and that argument prevailed. The Court relied on section 413 (a) of the Act. The Court emphasized that the applicable period was not 500 weeks plus three years, distinguishing the receipt of partial wage loss benefits which is then subject to a three year statute of limitation. The Court further noted that the 500 week limitation was a statute of repose, meaning that the right and the remedy are both extinguished when the limitation period expires. Two Judges dissented.

Another recent case notes that the expiration of a statute of repose deprives a Court of jurisdiction. (Cozzone v. WCAB (Pa. Municipal/East Goshen Township), No. 664 C. D. 2011 (1/12))

III.   Pennsylvania Superior Court:

Scope of privilege; communication with expert by counsel:

Barrick v. Holy Spirit Hospital, 1856 MDA 2009 (Pa. Super., 11/11)

Written communications between counsel and an expert containing posited mental impressions or legal analyses are protected by privilege and need not be produced in discovery.

Questions that might arise in the context of workers’ compensation claims can be directed to:

Kevin L. Connors at  kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).

PENNSYLVANIA WORKERS’ COMPENSATION

SUBROGATION LIEN OUTLINE

By: Kevin L. Connors, Esquire

Recently presenting at a reinsurance conference on the issue of Pennsylvania workers’ compensation subrogation liens, one that all of us probably think about every day, being that not insignificant monies have been expended in paying for workers’ compensation benefits, in the form of wage loss and medical compensation benefits, it occurred to us that the thrill of recovering those monies, through the perfection and prosecution of subrogation lien claims, continues to astonish, dumbfound, and dazzle our claims consciousness, as we simply demand, what we affirmatively believe, are our statutory entitlements.

Obviously, this outline is simply a function of Section 319 of the Pennsylvania Workers’ Compensation Act, setting forth:

“Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employee, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employee, his personal representative, his estate or his dependents. The employer shall pay that proportion of the attorney’s fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employee, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future installments of compensation.”

When workers’ compensation benefits have been paid, and the tantalizing thought exists that a third party is responsible for having caused those payments, in which case the following calculations come into play, in the event that the person that you have paid workers’ compensation benefits to, proves that a third party was responsible for those benefits, to include:

           Total amount of third party recovery;

           Accrued workers’ compensation lien, for both wage and medical benefits;

           The expenses of recovery;

           The balance of recovery.

With the above cha-ching dollars in play, proceeds must now be distributed, and that requires that the proceeds be distributed, with the following being calculated:

           1)        Accrued lien expense reimbursement rate, requiring division of the accrued lien by the total amount of the third party recovery;

           2)        Expenses attributable to accrued lien, requiring multiplication of the expenses of recovery by the accrued lien expense reimbursement rate;

           3)        Net lien (amount employer to receive in satisfaction of lien), requiring that the expenses attributable to the accrued lien be subtracted from the accrued lien, leaving a net lien.

Hold on now, because that might not be the end of our lien calculations.

No less true, there might still be future benefits that are payable, potentially empowered by the third party recovery and lien issues, and that future liabilities will require calculations as to the future distribution of proceeds.

This requires that we apply the reimbursement rate on future compensation liability, requiring that the expenses of recovery be divided by the total amount of the third party recovery, resulting in the employer/insurer being responsible for paying a percentage of future weekly benefits and medical expenses, to satisfy its obligation to reimburse its pro rata share of the attorney’s fees and expenses that were incurred in securing the carrier’s lien recovery, with that percentage being paid by the employer/insurer until its subrogation interest is exhausted.

Upon exhaustion of the subrogation lien interest, compensation liability again attaches at the 100% rate, subject to the wonderful defenses that the Pennsylvania Workers’ Compensation Act provides, whatever they might be on any given day.

As for all of these delightful calculations, there are, nevertheless, other considerations, necessitating the statutory purposes for subrogation, being threefold, the first being, prevention of double recoveries, and the second being avoidance of the employer/insurer paying compensation caused by someone else’s fault, and the third being to make the responsible party pay, redistributing liability in reliance upon life as we know it.

So what else do we need to know about subrogation?

Well, it is an absolute primary right, that attaches upon there being a third party recovery, either through settlement or verdict.

It is a right that, unbelievably, is not negated by the employer/insurer’s failure to cooperate in the prosecution, of the third party case, to secure that third party recovery.

No less magically, this right is not negated by the injured employee’s comparative negligence.

It is an all-inclusive right, meaning that it encompasses all past, present, and future workers’ compensation benefits, although it does not include your administrative claim expenses.

As for enforcement issues, therein lies the rub, although workers’ compensation has exclusive jurisdiction over subrogation lien issues, these issues typically arise in the interplay between workers’ compensation and civil litigation, and a workers’ compensation judge’s order, enforcing subrogation, and requiring distribution of third party settlement proceeds in satisfaction of a subrogation lien, might have little effect outside the workers’ compensation province, as a workers’ compensation judge’s order cannot be used as an order of attachment against the corpus, being the body of funds, on deposit in some account somewhere, presumably either counsel’s or the employee’s, such that it might be necessary to seek civil remedies, to enforce attachment via a judgment against the proceeds.

So, what else should be considered?

Well, subrogation liens cannot be asserted against recoveries that are triggered by ADA-type litigation, as they are regarded as being separate and distinct from the liabilities typically associated with causing the physical/mental injury, that results in the payment of workers’ compensation benefits.

Third-party recoveries cannot be re-apportioned, in avoidance of satisfying the lien, in order to try to assign proceeds to spousal consortium claims, and/or to re-allocate the recovery, in satisfaction of non-economic claims for pain and suffering, etc.

Subrogation liens are absolutely applicable to legal and medical malpractice claims, although the liens might be limited to benefits paid after the actionable malpractice, and might not, therefore, be all-inclusive, in terms of all benefits paid under the workers’ compensation claim.

Moreover, if a workers’ compensation claim is being settled, with the settlement being perfected under a Compromise & Release Agreement, it is necessary that the Compromise & Release Agreement reflect the parties’ agreement, with respect to the subrogation lien issues, and, obviously, any satisfaction of a subrogation lien requires that the parties prepare and submit a Third-Party Settlement Agreement to the Bureau, reflecting the satisfaction of the lien, and setting forth all applicable calculations as to the third party recovery, the applicable lien amounts, the net lien recovery, and the reimbursement rate, in the event that compensation benefits are being suspended, during the period that the employer/insurer would be re-paying its pro rata share of the fees and expenses attributable to its recovery of its subrogation lien.

As an absolute matter of practice, every workers’ compensation claim should be viewed through the Newtonian prism of the potential involvement of third party liability, and employers and insurers should be encouraged to place Claimants and counsel on notice of subrogation lien rights as early as possible, in avoidance of being left on the dance floor in between song selections.

ConnorsLaw LLP

Trust us, we just get it! It is trust well spent!

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere mouthpieces claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the National Workers’ Compensation Defense Network (www.nwcdn.com) magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

Questions that might arise in the context of workers’ compensation claims can be directed to Kevin L. Connors at kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).

TO POST OR NOT TO POST

By

Kevin L. Connors, Esquire

Whether tis nobler to post on Facebook, and to suffer the salubrious likes and dislikes of friends promoting health and welfare, while conspicuously visible to the naked eye of the known universe, or to sulk, alas, silently, while a classic battleground has arisen, at least for civil litigation discovery purposes, between those who post and those who use post its!

Previously reporting on Facebook issues that arose inMcMillen, yet another Facebook decision has come out of the Pennsylvania Common Pleas system, with the Honorable Richard Walsh, in the Franklin County Court of Common Pleas, granting the Defendants’ Motion to Compel inLargent v. Reed and Penna, compelling the Plaintiff to provide the Defendants with her Facebook e-mail and password, to allow the Defendants access to the Plaintiff’s Facebook postings.

The trial court order required Plaintiff to produce this information within fourteen (14) days, allowing the Plaintiff to change her Facebook password thirty-five (35) days after the date of the order, in order to restrict access by defense counsel.

Several attributes of Facebook were reviewed by the trial court, in its Opinion, as follows.

First, Facebook, although it has a privacy policy, that policy is ever-changing.

Next, only people with a user account can access Facebook, although access, for all practical purposes, is available to anyone with an e-mail account, who can then establish a Facebook account.

Facebook requires that users be at least 13 years or older, although this policy is impossible to enforce, and appears to be openly flouted.

Facebook users can set their privacy settings to various levels, although a user’s name, profile picture and user ID are always publicly available.

At the least restrictive setting, being “public”, 800,000,000 (that’s right) Facebook users can view whatever is on a user’s profile.

The intermediate level restricts visibility to the user’s Facebook friends, with the most restrictive, only allowing the user to view their profile.

Since Facebook permits “tagging”, whereby friends can tag each other in postings, such as photographs, notes, videos, or status updates, Facebook users know that their Facebook information can be shared by default, requiring the user to take affirmative steps to prevent the sharing of such information.

InLargent, the defense contended that the Plaintiff must be compelled to disclose her Facebook user name and password, as her profile was public, and the defense contended that the Plaintiff’s Facebook posts contradicted her claims of serious injury. Seeking to block the defense from having access to her Facebook postings, the Plaintiff contended that the information sought was irrelevant, and that the disclosure of this information might potentially cause unreasonable embarrassment and annoyance. The Plaintiff also claimed that disclosure violated privacy laws, in particular, the Stored Communications Act of 1986.

In a very well-reasoned Opinion by Judge Walsh, reviewing and resolving Pennsylvania’s discovery standards, potential privilege and privacy concerns, privilege issues under Pennsylvania Law, the Stored Communications Act, in the scope of the defense’s discovery request, Judge Walsh found that the information sought on the Plaintiff’s Facebook profile was not only relevant, was not covered by any specific privilege, and that the requests to produce was not unreasonable, and that the information sought was discoverable.

No less true than inMcMillen, which also permitted the defense access to a Plaintiff’s Facebook postings,Largent seems to track the general thrust of Facebook-profile litigation, which is that there is no keeping secret that which is already public.

If you post, it is public, and if it is public, it is discoverable.

As a routine manner, discovery requests, on both sides of the aisle, account for the humanoid penchant for always gazing with profane wonder into the miraculous caricature of our own lives, replicating postings in the Facebook universe as though sculpting a more perfect image of ourselves, and this is not discoverable why.

If Facebook is a still pond, the post that you place on its unbroken face is the ripple substantiating your existence.

No matter where you post, there you are!

Practically Speaking

How could you possibly think that this would have any other outcome, other than disclosure.

Knowing that no one is alone, Facebook legitimizes a license we all secretly sanction, which is simply self-importance through a medium permitting publication without consequence in terms of historical importance.

Face it, we post because we can, and because we can, we are drawn, like moths, to this flame.     

ConnorsLaw LLP

Trust us, we just get it! 

It is trust well spent!

Defending liability-based lawsuits throughout Pennsylvania, on behalf of insurance carriers, third-party administrators, and self-insured businesses and corporations, our 100+ years of cumulative experience defending our clients against negligence and occurrence-based liabilities, empowers our Casualty Practice Trial Group attorneys to be entrusted to create the factual and legal leverage to expeditiously resolve lawsuits and claims, in the course of limiting/reducing/extinguishing our clients’ potential liabilities under Pennsylvania’s common law, trial practices, and rules of civil procedure.

With every member of our trial practice group being AV-rated, our partnership with the Pennsylvania Defense Institute and the Counsel on Litigation Management magnifies the lens through which our professional expertise imperiously demands that we remain dynamic and exacting advocates for our clients, the same being businesses, corporations, insurance carriers, seeking our trial and litigation acumen, to navigate the frustrating and liability-intensive minefield pervasive throughout Pennsylvania trial practice and procedure.

Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors at kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).

REFRESH YOURSELF:

THE PERSONAL COMFORT DOCTRINE IN WORKERS’ COMPENSATION

By: Kevin L. Connors, Esquire

I.         INTRODUCTION:

Universal throughout workers’ compensation statutes, the personal comfort doctrine is a real, and sometimes amusingly interesting, result-oriented principle ubiquitous in workers’ compensation decisions and rulings, at times testing the boundaries of compensability, as employees attending to personal needs, for comfort or sustenance, to include work-time breaks for eating, drinking, using the restroom, smoking, or otherwise seeking relief from discomfort, sustain injuries for which compensation is then sought.

It is necessity’s offspring, recognizing the need for both rest and refreshment, with its genesis spawned by the policy consideration that “the real reason (for the personal comfort doctrine) is that a working man must live and recognizing this, the employer has provided both physical conveniences and their opportunity for their use. Modern industry conditions provide the real basis for compensation and should be recognized. The Personal Comfort Doctrine, (1960 Wis. L. Rev. 91, 92).

Simply stated, the personal comfort doctrine judicially justifies that certain on-the-job acts of personal comfort are “necessarily contemplated” to be incidental to the employment itself, blanketing any inevitably attendant danger with compensability. This doctrine, by its very definition, incorporates a certain element of foreseeability as to compensability, as it marries an accidental work injury with a necessary personal comfort.

In the eloquently-sculpted analysis of Professor Larson, the general rule concerning the personal comfort doctrine can be thought of as follows:

“Employees, who within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or, unless, in some jurisdictions, the method is so unusual and unreasonable that the conduct cannot be considered an incident of the employment”.

See 2 A. and L. Larson, Larson’s Workers’ Compensation Law § 21 (2002).

And the most common personal comfort situations involve work breaks around food, drinking, smoking, hygiene and toiletry functions, and fashion statements involving clothing. 

           A.        General Rule:

The general rule, almost universally applicable, subject to distinct jurisdictional relevance, is that injuries occurring in the course and scope of employment, while furthering the interests of the employer, are considered to be work-related and, therefore, compensable, with workers’ compensation statutes providing for compensation benefits that will include lost wages, and payment of reasonable, necessary and related medical care expenses. 

No less true, courts analyzing personal comfort cases are oftentimes forced to distinguish between a brief, or minor detour or deviation, as opposed to situations where the activity resulting in injury is one that must be characterized as having broken or severed the chain of what is considered to be the course and scope of employment, necessitating a factual/legal analysis as to whether the injury occurred during an activity incidental to employment, being one that benefits the employer by improving employee efficiency, as opposed to one where the converse was true. 

           B.        Personal Comfort Awards in Pennsylvania:

The following are Pennsylvania personal comfort cases where benefits were awarded, with compensability being established:

·         Employee injured in motor vehicle accident afterstopping for dinner with co-employees while traveling from a construction site to obtain supplies and drop off a co-worker was found to be a compensable injury under the Pennsylvania Workers’ Compensation Act(Employer’s Mutual v. Boiler Correction and Repair, 964 A.2d 381 (Pa. Super. 2008).

·         Employee working from an employer-approved home office, was awarded workers’ compensation benefits, when she fell down the stairs, in route to the bathroom, for personal comfort(Verizon Pennsylvania v. WCAB, 900 A.2d 440 (Pa. Cmwlth. 2006).

·         Workers’ compensation benefits were awarded when an employee, while completing a furniture delivery to a residence, sustained a traumatic brain injury, while attempting to jump up and touch a basketball rim on the property, with the Pennsylvania Commonwealth Court finding that “intervals of leisure activity during the work day are deemed inconsequential departures from the act of delivering furniture for the employer”(Baby’s Room v. WCAB, 860 A.2d 200 (Pa. Cmwlth. 2004).

·         A momentary departure from working, to use a bathroom facility, did not remove the employee from the course of employment.  (Montgomery Hospital v. WCAB, 793 A.2d 182 (Pa. Cmwlth. 2002).

·         InCarroll v. WCAB, 750 A.2d 938 (Pa. Cmwlth. 2000), the employee was awarded workers’ compensation benefits for loss of use of an eye, resulting from a detached retina caused by the employee attempting to suppress a sneeze, to avoid spreading germs to co-employees during a business meeting.

·         InCity of Harrisburg v. WCAB, 616 A.2d 1369 (Pa. 1992), the Pennsylvania Supreme Court found that a police officer who shot himself while cleaning his weapon at home was in the course and scope of employment, as the police officer had no place to store his weapon at work, and the Court ruled that a work activity performed at home is notper se outside the course and scope of employment.

·         InKovalchik Salvage v. WCAB, 519 A.2d 543 (Pa. Cmwlth. 1986), an employee, killed in a head-on collision driving a company car, in route to his home, after stopping for drinks and then taking co-employees home, was found to have sustained compensable fatal injuries, with workers’ compensation benefits being awarded.

·         InDe’Agata National v. WCAB, 479 A.2d 98 (Pa. 1984), an employee entering a luncheonette, to purchase a cup of coffee, was found to have sustained compensable injuries, when shot in the head and abdomen.

·         Shockingly, an employee, who was shot and killed, after stopping his truck along a roadway in order to relieve himself, was found to have sustained work-related injuries, in the course and scope of employment, by the Pennsylvania Commonwealth Court inWCAB v. Borough of Plum, 340 A.2d 637 (Pa. Cmwlth. 1975).

           C.        Personal Comfort Awards in Other Jurisdictions:

·         In Utah, its Court of Appeals affirmed an award of workers’ compensation benefits to an injured worker, notwithstanding the fact that the worker had been terminated, after the worker had returned-to-work in a light-duty position, following the employee’s work injury, with the employee having been terminated by the employer for sending pornographic images to other employee’s cell phones, over a company e-mail account. 

            Bizarrely, the Utah Court rejected the employer’s argument that light-duty work   continued to be available to the employee, and that the employee’s termination forcause should have been characterized as a constructive refusal of available light-           duty work, due to the employee’s improper activities.

·         An Illinois “smoke break” case is illustrative of break-time accidents, as this case involved an employee taking a break to smoke a cigarette, with the employer having a designated smoking area on the floor below where the employee worked, and there was only one stairway connecting where the employee worked to the employer’s designated smoking area; in route to the smoking area, the employee fell, and was injured, with the Illinois Court finding that the injury was compensable, as it fell within the personal comfort doctrine, as the employee’s injury was connected to their employment, the employee was not doing anything unreasonable or dangerous when injured, with the employer being in control of the premises, through designation of the smoking area.

·         InLevine v. People’s Broadcasting, decided in 1965, the West Virginia Supreme Court held that an employee who was attempting to raise himself from a toilet seat by leaning on a wash basin, who was injured when a pipe broke, was found to have been acting within the course and scope of his employment, with workers’ compensation benefits awarded, as the Court held “that an employee is within the scope of his employment as provided by the Act when he is administering to his own health and comfort if that be reasonably necessary to his employment, citing toArchibald v. Workmen’s Compensation Commissioner (decided in 1916). 

            Moreover, the West Virginia Court noted that an employee is “acting within the   course of his employment when he is engaged in doing, for his master, either the            act consciously and specifically directed or any act which can fairly and       reasonable be deemed to be an ordinary and natural incident or attribute of that act    or a natural, direct, or logical result of it.  If in doing such act, the servant acts            negligently, that is negligence within the course of the employment”.

·         Most employers might think that this was a pretty crappy result!

·         In Illinois, an employee who was injured attempting to dislodge a bag of Fritos stuck in a vending machine on the employer’s premises was found to have sustained a compensable and work-related injury, notwithstanding the chips having been purchased by a co-worker, such that the employee seeking to retrieve the bag of chips was not doing so for his own consumption. 

The Illinois Commission applied the personal comfort doctrine, in awarding workers’ compensation benefits. 

This ruling survived appeal, with the Illinois Appellate Court affirming the lower commission’s award of workers’ compensation benefits, as the Court found that the employee’s actions tracked a line of “scope of employment” cases, expanding coverage to employees acting to aid others in emergency situations, although the Court impolitely noted that “what the instant case lacks in urgency, it makes up for in familiarity and collegiality”. 

Essentially, the workers’ compensation award survived the employer’s appeal, as the appellate court concluded that the Commission could have reasonably concluded that the employee’s manner of assisting the Frito-purchasing employee did not necessarily cross the line of employment, potentially barring the award of benefits for the Frito-saving employee.

See Circuit City Stores v. Illinois Workers’ Comp. (7/9/09).

·         The Washington Supreme Court, inBall Foster Glass v. Giovanelli, upheld an award of workers’ compensation benefits to an traveling employee, who regularly traveled around the country rebuilding and fixing furnaces for his employer, when he, on assignment to a company plant in Seattle, was injured on his day off, as he was headed to a park with his supervisor to go to a concert; on crossing a street in front of the hotel, he was struck by a motor vehicle, and was seriously injured. 

The employer appealed the award of workers’ compensation benefits, on grounds that the employee had not been engaged in a recreational activity that had any business purpose behind it. 

Upholding the compensability of the employee’s injuries, the Court relied upon the “commercial traveler rule” or the “continuous coverage rule”, which is a rule that holds that a traveling employee is considered to be in the course of employment during his or her entire trip, except for a “distinct departure on a personal errand”. 

Holding that distinguishing between reasonable personal administrations and purely personal amusement adventures can be difficult, the Washington Supreme Court nevertheless found that compensation courts have routinely had little difficulty denying compensation benefits for unusual or unreasonable activity, such as the denial of compensation benefits for a Florida employee injured during a skiing trip, at a resort 50 miles away from the hotel that the employee had been staying in. 

Although the employer in Foster argued that the employee’s activity was a deviation from his employment, and that his actions in crossing a highway without a right of way was an “inherently dangerous” activity, the Washington Supreme Court rebuked that argument, citing to the personal comfort doctrine as follows:

“The scope of activities covered by the personal comfort doctrine depends on the particular circumstances of employment. A traveling employee is entitled to broader coverage than a non-traveling employee because a traveling employee is in a significantly different position of risk than a non-traveling employee. The non-traveling employee may satisfy his personal needs without leaving the comfort of            home.  In contrast, the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise”.

·         In Vermont, workers’ compensation benefits were awarded to an employee who was injured during lunch, while shooting off bottle rockets, with the Vermont Court finding that the injury did fall within the scope of the personal comfort doctrine. See, Notte v. Rutland, 112 Vt. 498 (1942).

·         In Georgia, a Claimant was awarded workers’ compensation benefits, when she injured her knee, as she bent over to pick up a pill off the floor. The Claimant was 300 lbs., and her knee buckled, causing her to fall, when she bent over to get the pill. The employer presented evidence that the employee’s knee buckled because of an idiopathic condition. However, the Georgia Court awarded workers’ compensation benefits, finding the claim to have been compensable based on the personal comfort doctrine, as the employee’s job was that of a custodian, sometimes requiring her to pick items off the floor.

In granting compensation benefits, the Court compared this fact scenario with cases where employees were injured when getting food and drink, or using a restroom, while working.

                       See Harris v. Peach County Board, 674 S.E. 2^ND 36 (2/11/09).

·         InLiberty Northwest Insurance v. Nichols, when a 6 Or App 664 (2003), an employee who broke his tooth while eating an employer-supplied piece of candy was awarded workers’ compensation benefits, overcoming the employer’s defense that the Claimant’s injury had not occurred within the course and scope of employment, as the Oregon Board found that the employee’s injury occurred as he was “eating while working”, and that the employee had not been engaged in personal recreational or social activities.

·         InThompson v. Keller Foundations, benefits were awarded to a Florida employee, a construction worker, who was injured in an accident that occurred as he was driving home from work, after stopping at a bar to shoot pool with co-workers.  The claim was initially denied by the insurance carrier, as well as by the workers’ compensation judge, but the appeals court reversed the denial of compensation benefits, finding that the employee’s injuries were indeed incidental to employment.

This case is illustrative, as the injured employee was traveling for business.  Although travel to and from work is typically not compensable under the “coming and going” rule, Courts take a more inclusive approach in evaluating injuries, when an employee is traveling overnight for business.

In reversing the lower court decision, the Florida Court stated:

“A traveling employee is deemed to be in the continuous conduct of his employer’s business including those times when he is not actually at work but is engaged in … normal and necessary activities.  Thus, so long as a traveling employee’s injury arises out of a risk which is reasonably incidental to the conditions of employment, the injury will be compensable. Although the appellant may have been engaged in amusement activities immediately prior to the accident, the JCC did not make any findings sufficient to conclude that the traveling construction worker was not attending to a normal creature comfort and a reasonable necessity – driving to dinner – when his injuries were sustained.”

This case illustrates the inclusive 24/7 nature of overnight business travel, in terms of compensability.

·         In Washington, workers’ compensation benefits were awarded to an employee, inDial v. Taplett Fruit Co., when the employee was injured, as she was walking to her car, during a morning rest break, to smoke a cigarette. As a result of falling, she sustained a low back injury, with the employer denying the claim, on grounds that the employee was not furthering the employer’s business interests when she was injured.  Telling, the employer did allow its employees to smoke in their cars during their rest breaks.

                       The Washington Court concluded that the employee had not left the course of her employment, as she was engaged in a “personal comfort that was reasonably incidental to her employment”. So concluding, compensation benefits were awarded to the employee.

·         InCooper v. Barnickel Enterprises, the New Jersey Superior Court awarded workers’ compensation benefits to an employee, who was injured while using a company vehicle, that he was using to drive to get coffee.  The employee was a master plumber and foreman. He had driven to a job location, to discuss the job details.  Arriving at the jobsite, the person that he needed to talk was not available, and would not be so for almost 45 minutes.  The employee decided to drive to a deli about 5 miles away, to get some coffee.

In route to the deli, the employee was injured in a motor vehicle accident, sustaining several injuries, resulting in the New Jersey Division of Workers’ Compensation awarding workers’ compensation benefits to the employee.  In awarding benefits, the Court found that the employee had been “engaged in exactly the kind of brief activity which if embarked on by an inside employee working under set time and place limitations, would be compensable under the personal comfort doctrine”.

·         And now, a pregnant paws worthy of the Australian personal comfort case that “went viral” on the Internet, being the case of the Australian public servant, who sought, was denied, and has now been awarded workers’ compensation benefits, as a result of her being injured while having sexual intercourse on a work-related business trip.

Initially, her claim was denied before the Australian Administrative Appeals Tribunal (AAAT), which denied her claim for workers’ compensation benefits, over the passionately poignant plea of her salaciously libidinous lawyer, who argued that she had sustained her injuries in the “ordinary prevue of human life”, and that she was not injured while engaged in performing any activity of gross misconduct or self-harm, her injury being no different than that of a traveling employee who might be injured while bathing or seeking sustenance, an argument countered by the employer arguing that her injuries were sustained in the course of “frolic of the applicant’s own”, during the course of a “quintessentially private activity”.

The employer argument being that “having sex is a different kettle of fish”, clearly distinguishing the “catching” from “caught”.

While the AAAT denied the Claimant’s lascivious claim, the Claimant pressed onward, appealing to the Federal Court of Australia, which, on April 19, 2012, overturned the AAAT, setting aside the Tribunal’s lecherous denial, in the course of which the Australian Court rendered 26 Findings, akin to what we refer to as Findings of Fact, followed by an additional 29 Considerations, akin to our Conclusions of Law.

In reliance upon personal comfort precedence in Australian compensation law, the Court found in favor of the employee seeking compensation for her sexual misfortune, holding as follows:

“Accordingly, it shall now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or incurs the employee to spend that interval or interlude at a particular place or in a particular way.  Furthermore, the injuries sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of misconduct taking him or outside the course of employment.”

                       Well, that certainly settles it!

Exactly, where do we go next? The simple rule being, that you need not be working, to be considered “employed”.

Although true, the Australian Court went to great lengths to diffuse the splatter effect of a case like this, given that media and Internet buzz created by it, and its infinitely special ability to replicate its affect across multiple jurisdictions, as it twies to avoid being tantalized by tweetfulness.

And what might have happened, with altered facts, if the Claimant, in fact, became pregnant and/or contracted a sexually-transmitted disease, are compensation benefits actually owed to the Claimant?

                       The answer is, of course, “it depends”.

            D.        Denied Personal Comfort Cases in Pennsylvania

What follows are illustrations of Pennsylvania personal comfort cases where benefits were denied:

·         In theDepartment of Labor & Industry v. WCAB, 977 A.2d 585 (Pa. Cmwlth. 2009), a state employee on a paid break off of the employer’s premises, who was attending to her own personal comfort, was not awarded workers’ compensation benefits, as she was not injured in furtherance of the employer’s business or affairs.

·         InGraves v. WCAB, 983 A.2d 241 (Pa. Cmwlth. 2009), an off-duty Philadelphia Housing Authority patrolman who was shot in an altercation with an armed bar patron was not found to have been engaged in police action in furtherance of the employer’s business when injured.

·         InBrookhaven Baptist Church v. WCAB, 912 A.2d 770 (Pa. Cmwlth. 2006), a church member and trustee, who was also paid to cut grass on the church grounds, was found to be outside the course and scope of his employment, when he was fatally burned while destroying lawn trimmings that he had gathered from pruning the shrubs.

·         InWright v. WCAB, 871 A.2d 281 (Pa. Cmwlth. 2005), an employee who was struck while crossing a highway, as he attempted to retrieve personal items from his own vehicle, was denied compensation benefits, as the Court found that the employee was not required by his employment to be crossing a highway at the time of the incident. 

·         DUH!       

·         InSchrif v. WCAB, 658 A.2d 2 (Pa. Cmwlth. 1995), an employee who was dismantling a hoist that the employer was permitting the employee to take home to use on a personal home project, was denied workers’ compensation benefits, when he was injured while dismantling the hoist, as the employer had given the hoist to the employee as a courtesy, and the Court found that the injury had not occurred in the scope of employment, nor did it further the employer’s interests.

·         InPesta v. WCAB, 621 A.2d 1221 (Pa. Cmwlth. 1993), an employee was collecting cans from the employer’s premises, intending to sell them, was not awarded fatal claim benefits, when he was fatally injured, as he crossed the street, to put the cans in a parked car.

·         InHabib v. WCAB, 29 A.3d 409 (Pa. Cmwlth. 2011), the Pennsylvania Commonwealth Court held that an employee, who sustained an injury to his eye, as he and other employees, all laborers, were attempting to smash a bowling ball found near the parking lot where they were working, with several employees having used the bowling ball in a shot-put challenge, after which the employees took turns trying to smash the bowling ball with a sledgehammer, with the injured employee being injured when shattering the bowling ball as a piece of the shattered ball flew into his eye. 

The workers’ compensation judge, awarded workers’ compensation benefits to the employee, finding that his actions, while careless, had not taken him outside the course and scope of employment, although the judge’s compensation award was vacated and reversed by the Pennsylvania Workers’ Compensation Appeal Board, which found that the employee had acted in violation of a positive work order, as his supervisor had told him to “knock it off”, further telling the employee that he would not take the employee to the hospital, if the employee was injured hitting the ball. 

On further appeal to the Pennsylvania Commonwealth Court, the Court held that the employee’s injury was not compensable, as it occurred while the employee was violating a positive work order, further holding that 3 requirements are necessary to bar an injury for violation of an employer work order, including:

                       a)         that the injury must be caused by the violation of the work injury;

                       b)         that the employee must know about the positive work order; and,

                       c)         that the Order must implicate an activity not connected with the                                        employee’s work duties.

           E.        Personal Comfort Denials in Other Jurisdictions:

The following claims involve Courts denying personal comfort claims, finding that the injuries had not occurred within the course and scope of employment, and that the injured employees had deviated from their normal work activities:

·         In Indiana, a morbidly obese long-term employee, weighing over 360 lbs. was not found to have been engaged in an “activity of daily living”, when she suffered a cracked femur as she tried to get herself out of a booth in a university cafeteria, during an employee appreciation dinner. Although she was successful in securing an award of workers’ compensation benefits from the first level factfinder, on appeal, the appellate court held that her injury was personal to her, and that there had been no increased risk created by her work environment, with the Court further observing that her pre-existing physical condition probably contributed to her injuries, and undoubtedly hampered her recovery, resulting in her injuries being found to be personal, and not work-related.

·         In a Florida case, in Galaida v. AutoZone (9/27/04), an employee was denied workers’ compensation benefits, when he was injured on a smoke break in the company parking lot. Although the employer allowed employees to take smoke breaks, the employee was getting cigarettes out of his car, when a gun fell out of his car, as he opened the car door, the gun discharged, and shot him in the foot.  The employee was denied workers’ compensation benefits on a deviation from course of employment theorem, which is an extension of the violation of positive work order rule, as the employer had a policy against possessing firearms on company premises.

On appeal, the appellate court held:

“The personal comfort doctrine incorporates a foreseeability element to the cause of injury.  Thus, inHolly Hill Fruit Products, 473 So. 2^nd A29 (1985), an employee was injured while crossing a street to purchase cigarettes was held to have sustained a compensable injury because the “trip was a foreseeable and non-prohibited refreshment break activity, and the employer’s authority over Claimant was not significantly dissipated during the course of the trip”.

“Being exposed to a firearm, however, is not a foreseeable consequence of an authorized cigarette break, especially when the possession of a firearm is strictly prohibited by the employer. Moreover, Galaida’s possession of a firearm, in violation of his employer’s policy, was not conducive to the employer’s interests. Thus, he should not benefit from the doctrine.”

·         TheOregon Supreme Court in  Roberts v. SAIF, 341 Or 48 (2006) denied workers’ compensation benefits to an employee who was injured while riding a motorcycle around the lot of his employer’s car dealership, with the Oregon Court finding that the employee’s injury was not compensable or work-related, applying the following analysis:

“Texturally ORS 656.005(7)(b)(B) raises three questions. The first is whether the worker was engaged in or performing a “recreational or social activity”. The second is whether the worker incurred the injury “while engaging in or performing, or as a result of engaging in or performing,” that activity. The final question is whether the work engaged in or performed the activity “primarily for the worker’s personal pleasure” if the answer to all of these questions is “yes”, then the worker cannot recover”.

The Oregon Supreme Court distinguished between activities performed for personal pleasure as opposed to activities performed for personal comfort.

            F.         The Smoking Duck:

That’s right, a smoking duck is a loaded fowl.

So, you as the benevolent employer, must balance stockholder demands against employee retention and productivity.

So what are you looking for, when a claim is reported to you, that seems to fall along the fault lines of personal comfort?

Well, from a practical and pragmatic perspective, it is axiomatic that the doctrine of common sense, not always applicable in a no-fault compensation system, be applied, as otherwise logic and reason fall prey to the collusive dark ages of intellectual chaos. The relevant analytical template begins with a description of the activity in question, to include lunch breaks, on and off premises, supplied or not by the employer, drinking, smoking, use of toilet facilities, washing hands, changing clothes, and seeking relief from heat, cold, or discomfort, not to include the supervisor’s baneful eye. 

Garnish the described activity in question with its time, location and purpose, to determine if, during work hours, after work hours, on your premises, off your premises, during some type of employment-related trip or travel, considering its purpose, the catch all being, was the activity under the compensation microscope advancing your business interests.

Then grab your trusty employee handbook, check the described activity in question against permissive and non-permissive stuff. Did you give permission for the activity, or does it violate a work or safety order?

II.       LOOSE ENDS:

·         Compensability is in the eye of the judge;

·         It is a doctrine as ancient as workers’ compensation law;

·         Universally, it is a doctrine based on decisional authority, untethered to any statutory provisions;

·         Telecommunications expand the scope of both personal comfort and personal discomfort, requiring an intense analysis by the employer as to whether the injury occurred within the course and scope of employment, whether the injury fell within the employee’s job description, whether it occurred in furtherance of the employer’s business interests;

·         This doctrine is intended to balance the personal needs of the employee against the business interests of the employer, so plan accordingly.