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PARENTAL NIGHTMARE, OR A VIOLENT COURSE AND SCOPE OF EMPLOYMENT PENNSYLVANIA CASE
Kevin L. Connors, Esquire
Does being brutally stabbed by your son at home in the middle of the night while you sleep warrant an award of workers’ compensation benefits?
This is not a trick question.
It was the critical factual/legal issue in O’Rourke v. WCAB, a decision issued by the Pennsylvania Supreme Court on October 27, 2015.
Not surprisingly, the critical issue was whether the undisputed injury occurred within the course and scope of employment, a necessary prerequisite for any award of workers’ compensation benefits in Pennsylvania.
In reversing the Pennsylvania Commonwealth Court, which had found that the Claimant had sustained her burden of proving that her injury occurred within the course and scope of employment, the Pennsylvania Supreme Court, in a Decision authored by Justice Stevens, ruled that the Claimant was not engaged in the furtherance of the employer’s business interests, when sleeping in her bedroom as she was brutally attacked by her son, such that the Court held that the Claimant’s injuries did not occur within the course and scope of her employment, and were not, therefore, compensable under the Pennsylvania Workers’ Compensation Act.
A ruling clearly predicated on statutory logic, defying deference to tragic circumstances.
In O’Rourke, the Claimant worked for accessAbilities, a state-funded program run by the Pennsylvania Department of Public Welfare.
Employed by accessAbilities, she was paid hourly to provide attendant care for her 33 year old son, who suffered from a variety of complicated health issues caused by long-term drug use.
Begging the necessary question of how an employer-employee relationship existed, the Supreme Court considered that the employment arrangement was designed as a consumer model of service delivery, with the individual requiring care being the employer, necessitating that workers’ compensation insurance coverage be secured, with the employer, herein, the son in need of care, being responsible for hiring, training, disciplining, and terminating employees.
The state-funded program then acted as a payroll agent for any employees, as well as to meet employer needs if necessary.
In O’Rourke, the employer arrangement initiated when the Claimant’s son had his leg amputated in 2007. Subsequent to the Claimant’s son undergoing in-patient rehabilitation, arrangements were made for the son to move in with the Claimant, to live more independently, in 2008.
Several weeks later, the Claimant and her son enrolled in accessAbilities, and the Claimant was trained to assist her son with dressing, bathing, wound care, taking medications, preparing meals, and transportation.
The son received funding through the state for 64 hours of care each week, although he never qualified to receive nighttime or 24-hour care.
Since the son was living with the Claimant, he requested that she provide him with care in the evening, if she was awake. If the Claimant provided any nighttime care, she would log those hours against the next day that she would work.
Typically, she worked 40 hours per week, Monday through Friday, and then 12 hours per day on both Saturday and Sunday. Her hours were recorded on timesheets through Halo, an online computerized system that allowed her to clock in and out each day.
On April 10, 2009, the Claimant returned home around 10:00 p.m., after a night of BINGO.
When she came home, her son asked her to make him something to eat, although the Claimant asked if she could first change her clothes.
An argument then ensued between the two, although the Claimant did change her clothes, fed her son, and then went to sleep around 11:30 p.m.
In the early morning hours of April 11, 2009, the Claimant’s son came into the Claimant’s room, jumped on top of her, slashed her throat, and then stabbed her several times with a butcher knife, screaming, less than endearingly, “I’ll kill you, you fucking bitch”.
Anyone recall Oedipus Rex by Sophocles?
Surviving the violent attack, the Claimant then filed a Claim Petition against her son’s insurer, State Workers Insurance Fund (SWIF), alleging that she had sustained a work-related injury, resulting in the specific loss of her left arm, further claiming that she was also suffering from psychological injuries, unrelated to simply being a parent.
She then also filed a Review Petition, seeking medical treatment, as well as claiming that she was suffering from post-traumatic stress disorder (PTSD).
The WCJ bifurcated the litigation, in order to initially determine the course and scope of employment issue.
In support of her petitions, the Claimant testified to the employment arrangement, as well as the gruesome details of the attack causing her injuries.
A coordination specialist witness testified for accessAbilities.
That testimony clarified that the Claimant’s son, as employer, never qualified for overnight care, as that level of care required a traumatic brain injury.
The accessAbilities witness also testified that the Claimant’s timesheets indicated that she never recorded working late night or early morning hours when caring for her son.
Initially determining that the Claimant’s injuries were compensable, finding that the injuries occurred within the course and scope of employment, the WCJ nevertheless concluded that the Claimant was not actually engaged in the furtherance of the employer’s (her son) business or affairs at the time of her injury, as she was sleeping when attacked, further finding that the Claimant did not routinely provide care to her son, who the WCJ found did not qualify for overnight care, with the WCJ concluding, however, that the Claimant was on the “employer’s premises” when injured, thereby entitling her to workers’ compensation benefits under the Interlocutory Order issued by the WCJ.
In determining that the Claimant’s injuries occurred within the course and scope of her employment, the WCJ also rejected SWIF’s argument that the Claimant’s injuries resulted from “personal animosity”, a defense that negates the compensability of alleged work-related injuries when the injuries occur as a result of reasons personal to the attacker and Claimant under Section 301(c)(1) of the Act.
Subsequent to the initial determination by the WCJ that the Claimant’s injuries occurred within the course and scope of employment, the medical issues were then litigated with the WCJ issuing a Decision awarding compensation benefits to the Claimant for both temporary total disability and specific loss benefits, with the specific loss benefits obviously only being recoverable after exhaustion of the temporary total disability benefits.
Both parties then appealed, with the Claimant contesting some of the Findings of Fact made by the WCJ, and with SWIF appealing the determination that the Claimant’s injuries occurred within the course and scope of her employment.
The Appeal Board then reversed the WCJ’s Decision, holding that the Claimant’s injuries did not occur within the course and scope of her employment as she was neither furthering the employer’s interests, nor did her employment require her to be “on the premises”, at the time of her injury, in reliance upon Slaugenhaupt v. US Steel, 376 A.2d 271 (Pa. Cmwlth. 1977); the seminal “on the premises” course and scope of employment workers’ compensation decision in Pennsylvania.
Effectively, the Appeal Board held that the Claimant was not “required” to “remain on the premises” once she finished her work duties and went to bed, further finding that the Claimant’s “employee status” ended, as she simply became a resident of the house, when she “embarked on a course of ‘recreation separate and distinct from the duties of her employment’.”, when she went to bed.
Appealed to the Commonwealth Court, the Court reversed the Appeal Board’s Decision, reinstating the WCJ’s award of compensation to the Claimant, in the course of finding that the Claimant was entitled to compensation as she was “practically required” to live on the premises because of her employment.
Ever hear of the “bunkhouse rule”, cited in Malkay v. Kaskminetas Valley Coal Company, 123 A. 505 (Pa. 1924); a Decision in which coal miners were awarded workers’ compensation benefits for injuries that occurred while the coal miners were required to live on the employer’s premises?
Talk about working at home.
Concluding that the Claimant was required to live on the “work premises”, in order to provide care to the Claimant, the Commonwealth Court held that “when an employee is injured on the work premises by the act of another employee, there is a rebuttable presumption that the employee is covered by the Act.” Citing to General Electric v. WCAB, 412 A.2d 196 (Pa. Cmwlth. 1980).
In reliance upon General Electric, the Commonwealth Court transferred the burden of proof from the Claimant to the employer (SWIF), to establish that the Claimant’s injuries were the result of an attack caused by personal animus, with the Court agreeing with the WCJ’s decision that SWIF failed to sustain its burden of proving that the attack resulting in the Claimant’s injuries was motivated by personal animus, instead of being related to the employment arrangement between the Claimant’s son and the Claimant.
Affirming the WCJ’s findings of fact, the Commonwealth Court held that the reason for the Claimant’s son assaulting the Claimant remained unknown, there being no evidence in the record from which a conclusion as to cause could be inferred.
Granting SWIF’s Petition for Allowance of Appeal, the Pennsylvania Supreme Court held that the Claimant had “clearly departed from her work duties and was engaged in a purely personal activity when she was attacked while sleeping in her bedroom”, it being clear that the Claimant was not engaged in the furtherance of the employer’s business when injured, such that the only scenario under which the Claimant would be allowed to recover workers’ compensation benefits is if it was proven that the Claimant was injured while on “premises occupied or under the control of the employer”.
This burden of proof would also require an analysis as to whether the Claimant’s presence, in her bedroom, at the time of the attack was “required by the nature of her employment”.
Reversing the Commonwealth Court’s finding that the Claimant was required to be “on the premises” when injured, the Supreme Court held that the Claimant’s employment contract and job description never required the Claimant to work late-night shifts, or to provide 24-hour care, or to be on call for son’s needs, as her son never qualified to receive funding for an overnight caretaker, given that his medical condition did not warrant such care.
So holding, the Pennsylvania Supreme Court ruled that the Claimant’s “presence in her bedroom in the middle of the night was not required by the nature of Claimant’s employment”, such that the Claimant should not have been entitled to an award of workers’ compensation benefits.
The Supreme Court also held that the Commonwealth Court’s reliance upon the Supreme Court’s earlier decision inMalky, was misplaced, as the “bunkhouse rule covered situations in which an employee’s living arrangements in the work presence is reasonably necessary to perform the tasks required by the employer.”
In Malky, the employees were required to be on the employer’s premises 24 hours a day, withMalky involving union coal mine workers being killed in an explosion when striking workers threw a bomb into the mine bunkhouse in the middle of the night, with the WCJ initially denying compensation, finding that the mine workers were not required to be on the employer’s premises at the time of the explosion, with the Supreme Court holding that the mine workers were required to be on the employer’s premises 24 hours a day, and that the employer occupied and controlled the premises where the mine workers were killed.
The Supreme Court also held that the Commonwealth Court in O’Rourke failed to recognize that the bunkhouse rule should only result in an employee being compensated for work-related injuries that result from normal activity during the employee’s leisure time, if the employee is required to live on the employer’s premises and the premises are controlled and used by the employer in its business. SeeMalky, 123 A. at 506.
In short, the bunkhouse rule imposes workers’ compensation liability on an employer requiring its workers to live in employer-furnished premises, when the employer controls, maintains, and uses the premises for its own benefit.
The rationale underlying the bunkhouse rule is that “an employee’s reasonable use of the employer’s premises constitutes a portion of the employee’s compensation.” Pierre v. Seaside Farms, Inc., 689 S.E. 2d, 615 S.C. (2010).
Consistently acknowledging the remedial nature of the Workers’ Compensation Act, intending that the benefits inure to injured workers, the Supreme Court nevertheless held that it was “mindful that the Act was not intended to make the employer an insurer of its employees’ lives and health.” Kmart Corporation v. WCAB, 748 A.2d 660 (Pa. 2000).
Holding that the Claimant was not engaged in furtherance of her son’s business when she was attacked while sleeping in her bedroom, nor did the nature of her employment require her to be in the bedroom at the time of the attack, the Pennsylvania Supreme Court concluded that her injuries were not sustained in the course and scope of her employment, and were not, therefore, compensable under the Workers’ Compensation Act.
A dissenting opinion was submitted by Justice Todd, in the course of which Justice Todd would have held that the nature of the Claimant’s employment did require her to live with the employer, her son, and that her home was, therefore, the “work premises”.
Clearly, this is a highly unusual case, involving unique circumstances.
All kinds of factors were at play in this case, with our analysis being that the Supreme Court correctly decided that the Claimant’s injuries were not sustained within the course and scope of her employment, and that the nature of her employment relationship did not require the Claimant’s presence “on premises” controlled or occupied by the employer, her son.
Given the highly unusual facts involved with this case, course and scope of employment issues need to be carefully scrutinized for factual inconsistencies defying statutory logic.
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