By: Joseph C. Romano, Esq.
The Commonwealth Court recently issued two decisions relating to issues involving course and scope of employment and premises liability: Ace Wire Spring and Form Co. v. WCAB (Walshesky), 29 PAWCLR 110 (Pa. Commw. 2014) and PPL v. WCAB (Kloss), 29 PAWCLR 112 (Pa. Commw. 2014). Both of these decisions underscore the importance of an early and thorough investigation prior to acceptance or denial of an alleged injury.
In Walshesky, the Commonwealth Court affirmed the decision of the Workers’ Compensation Judge and Workers’ Compensation Appeal Board, determining that the claimant sustained a left-sided stroke and paralysis due to a fall in the employer’s parking lot while furthering the business affairs of the employer. The evidence of record indicated that the claimant arrived at work sometime between 6:30 and 7:30 a.m., before his 8:00 a.m. shift. Upon arriving, the claimant entered the employer’s building to retrieve uniforms, walked to his car to place the uniforms inside the vehicle, then slipped and fell on ice while returning to building. Testimony revealed that the claimant and other employees routinely arrived early for work.
Before the Commonwealth Court, the employer continued its argument that the claimant was not within the course and scope of his employment as he arrived at an unreasonable time prior to the start of his shift (approximately 90 minutes prior). The court disagreed, finding that the evidence did not establish that the claimant’s presence on his employer’s premises between thirty (30) to ninety (90) minutes before his work shift was an unreasonable amount of time before his shift began.
In making its decision, the court held that there is not a bright line test for assessing how long prior to the commencement of a scheduled shift is unreasonable. Instead, “the exact amount of time does not appear to be as important as the claimant’s purpose or activities during that time.” The court then considered the claimant’s purpose for being there, retrieving uniforms, and the fact that the claimant and other employees routinely arrived early for their respective shifts. Finally, the court did not find any credible evidence to demonstrate that the claimant abandoned his employment, engaged in something entirely foreign thereto, acted contrary to any positive orders of his employer, or was a trespasser within the time leading up to his shift.
In Kloss, the Workers’ Compensation Judge and Appeal Board determined that the claimant, a steno clerk, had successfully proven that she was in the course and scope of her employment when she fell, following her shift, in a restricted use parking garage that was physically connected to the employer’s premises. However, upon review, a majority of the Commonwealth Court reversed the Appeal Board’s and Workers’ Compensation Judge’s rulings.
The evidence revealed that the claimant parked in a nearby parking garage that was leased to the employer and one other business, but was not available for public use. The parking garage was not owned nor operated by the employer, but the employer did pay a pro rata share of the electric bill, based on occupancy of its employees. Employees of PPL also received a parking subsidy for utilizing that garage, as well as one other one, but were not required to park in either garage. A transportation subsidy was also available for the use of public transportation. Additionally, the parking lot was connected to the PPL building by a skywalk owned by PPL.
On the date of the incident, the claimant used her employer-issued swipe card to enter the parking garage. The claimant parked on the second floor and utilized an elevator to go up to the third floor where she entered the employer’s building through the skywalk. Following her shift, the claimant exited the building onto a public street and walked to the parking garage. Upon entering the garage, the claimant started walking toward the elevators when she slipped and fell, injuring her right arm and shoulder.
In reversing, the Commonwealth Court determined that the parking garage was not a part of the employer’s premises. In so finding, the court held that the parking subsidy was merely an employment benefit and immaterial to the determination of whether the parking lot constituted the employer’s premises. The employer did not require employees to park in the lot. Rather, parking in this lot was optional and subject to availability. Additionally, the employer offered subsidized parking at another parking lot, as well as a subsidy for bus transportation. The majority further held that the claimant failed to establish that her injury was the result of a condition of the premises, as the claimant testified that she tripped over her own feet while walking to the elevator.
These recent decisions by the Commonwealth Court highlight the necessity for a thorough investigation of an alleged injury when issues such as course and scope of employment and premises liability are present. When reduced to the very basics, each case involved an injury in a parking lot before and after a work shift. However, the specific facts crucial to each case separate a compensable work incident from a non-compensable work incident. In each instance, the Commonwealth Court undertook an intensive factual review in making its determination.
With that in mind, it is imperative for employers to thoroughly investigate all alleged injuries and communicate as much information as possible to their insurer or third-party administrator. The communication of these facts is crucial when making a determination to accept or deny a claim. As an insurer or third-party administrator, it is equally important that you attempt to obtain as much information as possible to determine the potential liability or defense strategy and communicate that information with defense counsel.
For more information on investigations, premises liability or other workers’ compensation-related matters, contact attorneys of the Burns White Workers’ Compensation Group at 412-995-3000 or email Joseph C. Romano at jcromano@burnswhite.com.