April 13, 2009

A Drive-by
of a Course and
Scope Case

It was about 6:45 a.m., on an otherwise very normal Tuesday morning, a few days before Thanksgiving, when the Claimant, a 32 year old union painter, was involved in a two-vehicle collision, while driving his personal car to work, for which the Claimant never received any reimbursement from his union employer, for either time or expense when commuting to or from work.

The two-car accident was a rather bizarre accident, which occurred without explanation as to its cause, when the Claimant, driving a mini-van, on a four lane, two-way principal road, separated by a two-car length curbed grass median, jumped a cement curb, made an abrupt 90 degree angle turn, crossed over the grass median, and then struck the rear of a tractor-trailer, traveling in the opposite direction. The Claimant sustained a brain injury with cognitive deficits that would forever preclude the Claimant from being able to work as a union painter, with the Claimant never being able to testify as to either the accident, or his employment, in the course of litigating a Claim Petition against the union painting company.

Claimant, whose family was facing medical bills of close to $2,000,000, choose to file a Claim Petition against the Claimant’s employer, alleging that he was injured in the “course and scope of employment.”

Due to the fact that the Claimant’s car was the striking vehicle, coupled with there being no indication of any negligence by the operator of the tractor-trailer, the Claimant allowed the statute of limitations for any third-party action to lapse, with the Claimant, whose supportive family was facing medical bills of close to $2,000,000, choosing instead to file a Claim Petition against the Claimant’s employer, with the Claimant alleging that he was in the “course and scope of employment” when the motor vehicle accident occurred as he was driving to work.

The Claimant’s petition was defended by the insurance carrier, with the petition being assigned to a suburban workers’ compensation judge, who is/was regarded by most as being more pro-Claimant than pro-employer. For that reason, several key tactical decisions were made at the outset of the Claim Petition litigation, to include specific allegations being raised in the Answer to the Claim Petition, and strategic considerations being made in terms of the Bureau’s then newly-implemented Mandatory Mediation procedures, with Mediation being employed tactically, to set the stage for the claim being defended under a one-day hearing procedure.

As clearly suggested by the circumstances and mechanics of the Claimant’s car accident, the nature and severity of his brain injury and cognitive deficits, the uncertain circumstances of the Claimant’s morning commute to work, which, as the litigation progressed, became heavily scrutinized, as the Claimant had a blood alcohol level of .039, perhaps a Tuesday morning hangover, and, as it later turned out, that he had had an eye operation surgery the night before the car accident, as well as the amount of the medical bills in question, with all issues presenting significant “gut checks” for all involved parties, the case was nevertheless aggressively defended to a decision by the carrier.

In the course of defending the petition, every witness having either actual or tangential knowledge of the car accident, including all investigating police officers and ambulance personnel, several members of the Claimant’s family, the driver of the tractor-trailer, and several employer witnesses were deposed, with the depositions being both defensive and offensive, in terms of developing a comprehensive defense that the Claimant’s fateful commute was not within the course and scope of his employment as a union painter.

Important to the outcome was the introduction of the Collective Bargaining Agreement between the union and the employer, and medical records that referred to the Claimant having been “intoxicated” at the time of the accident.

No less important to the eventual outcome of the case, was the introduction of several documents, to include a copy of the Collective Bargaining Agreement between the union and the employer, and various medical records, that referred to the Claimant having been “intoxicated” at the time of the accident, with the Claimant never being able to explain, to any treating physician or therapist, how the accident had occurred, or why the Claimant contended that his accident and injuries were in the course and scope of employment.

Since the critical issue in dispute was the “course and scope” issue, a stipulation was entered into as to the Claimant’s injuries, as well as to the Claimant having, in the course of therapeutic rehabilitation, being placed in an out-patient work environment, with the Claimant working a few hours per day, a few days per week, and being given a work stipend, which was nevertheless characterized as wages, for purposes of establishing, at a minimum, a limitation in terms of total disability, with the Claimant, through counsel, stipulating that the Claimant was only partially disabled under the Stipulation that was adopted by the workers’ compensation judge.

The WCJ denied the Claimant’s petition, finding that the Collective Bargaining Agreement controlled all aspects of the Claimant’s employment.

In a workers’ compensation decision of great import, the workers’ compensation judge denied the Claimant’s Claim Petition, adopting the Findings of Fact and Conclusions of Law set forth in the employer/insurer’s defense brief. Critical to the WCJ’s decision was the judge’s finding, as argued consistently throughout the employer/insurer’s defense brief, that the Collective Bargaining Agreement controlled all aspects of the Claimant’s employment, to include when the work day began, when the work day ended, as well as factors involved in the Claimant’s compensation, to include there being no provision within the Collective Bargaining Agreement regarding union painters being compensated by their employers for travel to and from work, nor there being any provision regarding the work day extending beyond the time when painters were required to report to work, or when their work day would end.

This line of defense was critical for the employer/insurer, since the Claimant, through counsel, was arguing that the Claimant had no “fixed place of work,” when commuting to work, as the nature of the employer’s painting business, was that jobs were of relatively short duration, sometimes lasting 2 or 3 days, before painters were assigned to work at different locations for different painting contracts. In this particular case, the Claimant, who only worked for the employer for 4 weeks, worked at a number of different locations in Center City Philadelphia, with the employer producing the addresses for the locations where the Claimant had worked.

In fact, the Claimant had worked at the location that he was driving to, when the accident occurred, several times during the 4 weeks that he worked for the employer, with each time that the Claimant had worked at that location, actually involving different painting contracts, of differing lengths, after which the Claimant would be assigned to work at another location, under another contract.

Relying upon a string of contractor cases, all of which dealt with whether the injured Claimants had a “fixed place of work,” the employer/insurer argued that the controlling cases were favorable to the carrier’s defense, with the guiding principle in each case being that the injured employees had “fixed places of work” such that any injuries sustained in automobile accidents in route to or leaving work (“coming and going”) did not involve accidents within the “course and scope” of employment, and were not, therefore, compensable under the Act.

There was concern that the WCJ would decide the case based on sympathetic factors.

Problematic for the employer/insurer in its defense of the case was concern that the WCJ would decide the case based on sympathetic factors, to include the Claimant having a facial scar from injuries sustained in the motor vehicle accident, the Claimant being relatively young and forever unable to return to union painting due to personality and cognitive changes from the accident, and the Claimant having received extensive medical treatment post-accident, resulting in medical bills of over $2,000,000, with the WCJ being aware of the medical treatment, Claimant’s personality and cognitive changes, and the medical bills post-accident.

Another issue of significance, although not dispositive, was the fact that the Claimant was never called as a witness, and that no witness ever testified as to where the Claimant was actually going, or why, when the accident occurred. Certainly, it was argued by Claimant’s counsel, in Claimant’s brief, that the Claimant must have been on his way to work and that the Claimant must not have had a “fixed place of work”, given the work schedule that had been put into evidence.

Moreover, when the Claimant was not called as a witness in the case, and none of the witnesses called by the Claimant were able to testify as to what he was doing, where he was going, or what he had been thinking before the accident occurred, it was argued by the defense, that the only probative evidence on the “coming and going” issue, was the testimony offered by the employer witnesses, that the Claimant did have a “fixed place of work,” and that its business practices were dictated by its painting contracts, requiring assignment of painters to location-specific jobs until contract completion, with reassignments to new locations being controlled exclusively by the employer.

This case illustrates the insurer’s determination and intellectual courage in defending a claim with a potential exposure in a range of several million dollars, given the potential lifetime exposure.

Within the context of this employer-favorable decision, currently on appeal before the Appeal Board, this case illustrates the insurer’s determination and intellectual courage in defending, under difficult circumstances, a claim with a potential exposure in a range of several million dollars, given the potential lifetime exposure for indemnity compensation benefits, and lifetime exposure for continuing medical treatment, necessitated by cognitive rehabilitation and assisted care.

It is a case that also illuminates the ability of a workers’ compensation judge to fairly evaluate the evidence presented, and to correctly define the scope of the claim as being contractually controlled by a Collective Bargaining Agreement, as that Agreement was fundamental to the master-servant relationship, in all contexts, between the employer/insurer and employee. Introducing that Agreement into evidence was a critical factor in the employer ultimately prevailing with the dismissal of the Claim Petition.

It was, and is, an extraordinary case, and one that we were privileged to defend on behalf of the employer and insurer.

Questions concerning this case, its defense and its ruling, its impact, or any other issues with regard to workers’ compensation litigation, can be directed to our attorneys.       

— Kevin Connors

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