Recovery for Work-Related Injuries Outside of Pennsylvania’s Workers’ Compensation System
Jeremy K. O’Steen I. INTRODUCTION
In Pennsylvania, an employee’s work-related injuries and death are compensable almost exclusively through the Pennsylvania Workers’ Compensation Act (hereinafter “PWCA”), 77 Pa. Cons. Stat. §§ 411(1), 481(a). Unless an exception applies, an employee may not bring a lawsuit against her employer (or co-worker). In return, employees are guaranteed some compensation for injuries without the burdensome requirement of establishing an employer’s fault. Thus, “the PWCA ‘therefore deprived workers of some rights in exchange for surer benefits, and immunized employers from common law actions in order to make benefits
available to workers who were therefore without practical remedies.” Uon v. Tanabe Int’l Co., No. 10-3792, 2010 WL 4861436, at *3 (E.D. Pa. Nov. 30, 2010) (quoting Kuney v. PMA Ins. Co., 525 Pa. 171, 174, 578 A.2d 1285 (1990)).
As for the exceptions, they are narrow and few. An employee may seek tort recovery, and will not be precluded by the exclusivity of the PWCA, for the following:
(1) An aggravation of a work-related injury as a result of an employer’s fraudulent misrepresentation;
(2) An injury caused by the tortious conduct of an employer if the worker is not in the course of employment at the time of injury;
(3) An injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment; and
(4) An injury caused by a co-employee as a result of intentional wrong.
The purpose of this article is to examine and clarify the circumstances wherein an employee may recover outside of the PWCA for work-related injuries.
II. RECOVERING FROM THE EMPLOYER
It is important to emphasize at the outset that although other states permit such an action, “the PWCA is the injured employee’s exclusive remedy even [] where an employer intentionally or through ‘willful and wanton conduct’ causes an employee harm.” Uon v. Tanabe Int’l Co., No. 10-3792, 2010 WL 4861436, at *3 (E.D. Pa. Nov. 30, 2010) (quoting
Poyser v. Newman & Co., Inc., 514 Pa. 32, 36, 522 A.2d 548 (1987)). See Wendler v. Design Decorators, Inc., 768 A.2d 1172 (Pa. Super. Ct. 2001) (holding that exclusivity provision of PWCA prohibited tort recovery against employer for reckless/willful disregard of OSHA standards); Alston v. St. Paul Ins. Cos., 531 Pa. 261, 612 A.2d 421 (1992) (holding that exclusivity provision of PWCA prohibited tort recovery for fraudulent handling of
compensation benefits); Snyder v. Specialty Glass Products, Inc., 441 Pa.Super. 612, 658 A.2d 366 (1995) (holding that exclusivity provision of PWCA prohibited tort recovery against employer for intentional infliction of emotional distress because no exception for intentional tort exists); Blouse v. Superior Mold Builders, Inc., 363 Pa.Super. 516, 526 A.2d 798 (1987) (holding that exclusivity provision of PWCA prohibited tort recovery for workers against employer where employer intentionally caused them injuries by failing to warn of known dangers inherent in chemicals, by removing warning labels from chemical containers, and by assuring them that the chemicals were safe for use). There is only a single exception to employer’s immunity with respect to intentional conduct, set forth below, for fraudulent representation that results in aggravation of work-related injury.
1. The exception for fraudulent misrepresentation resulting in aggravation of work-related injury has been construed as narrowly as possible.
In the seminal case, Martin v. Lancaster Battery Co., an employee suffered a
workplace injury as a result of lead exposure. 530 Pa. 11, 13-14, 606 A.2d 444. While federal regulations required the employer to regularly test its employees for lead levels in blood, the employer in this case intentionally concealed the blood test results by altering those results. Id. at 14, 606 A.2d 444. Because of the employer’s intentional misrepresentation of the test results, the employee’s continued exposure to lead caused greater injury than would have occurred had the employer accurately represented the blood test results. Id. The employee sought compensation for the aggravation of the injury alone. Id. at 20, 606 A.2d 444. The Pennsylvania Supreme Court held that the PWCA’s exclusivity provision did not apply to immunize the employer. Id. at 19, 606 A.2d 444.
“To fit within the Martin exception, the employee must show that his employer aggravated an existing injury through fraudulent misrepresentation or concealment of facts
pertaining to that injury.” Uon v. Tanabe Int’l Co., No. 10-3792, 2010 WL 4861436, at *4 (E.D. Pa. Nov. 30, 2010) (citing Ranalli v. Rohm & Haas Co., 983 A.2d 732, 735-36 (Pa. Super. Ct. 2009); Santiago v. Penn. Nat. Mut. Cas. Ins. Co., 418 Pa.Super. 178, 613 A.2d 1235, 1238-43 (Pa. Super. Ct. 1992)). “The law in Pennsylvania is so thoroughly settled that no possibility exists” outside of this narrow framework. Id.
2. The dual capacity doctrine is absolutely inapplicable when the injury occurs during the performance of the employee’s job.
There is one further exception when it comes to recovering against an employer, called the “dual capacity” doctrine. Under this doctrine, Pennsylvania courts have found an exception to the PWCA when there was “a separate duty owed by the employer to the public, and the employee could not be distinguished from a member of the public to whom that duty was owed.” Callender v. Goodyear Tire and Rubber Co., 387 Pa.Super. 283, 295, 564 A.2d 180 (1989) (citing Tatrai v. Presbyterian Univ. Hosp., 497 Pa. 247, 439 A.2d 1162 (1982); Budzichowski v. Bell Tel. Co. of Pennsylvania, 503 Pa. 160, 469 A.2d 111 (1983)). The seminal case here is Tatrai v. Presbyterian University Hospital, where a hospital employee became ill on the job and was sent to the emergency room. 497 Pa. at 249, 439 A.2d 1162. Because the emergency room was open to the public and the hospital employee was being treated just as any other member of the public would have been, the Pennsylvania Supreme Court determined that the hospital employee could recover for the injuries she sustained in the emergency room that resulted from her employer’s negligence. Id. at 255, 439 A.2d 1162. However, the most significant fact is what the employee was doing when the injury occurred, and accordingly “no such exception can exist where [] the employee’s compensable injury occurred while he was actually engaged in the performance of his job.” Heath v. Church’s Fried Chicken, Inc., 519 Pa. 274, 277, 546 A.2d 1120 (1988) (quoting Lewis v. Sch. Dist. Of Phila., 517 Pa. 461, 538 A.2d 862 (1988)).
There is also a “dual persona” doctrine that has been applied in narrow circumstances, and applies only where “the employer has a second identity, so completely unrelated to its status as an employer, that the law would recognize the employer in its second capacity as a separate legal person.” Soto v. Nabisco, Inc., 32 A.3d 787, 792 (Pa. Super. Ct. 2011) (citing
Callender, 564 A.2d at 185). The duties under the second “persona” must be “totally separate from and unrelated to those of the employment.” Id. (quoting Van Doren v. Coe Press Equip. Corp., 592 F.Supp.2d 776, 797 (E.D. Pa. 2008)). The purpose of this doctrine is to preserve a plaintiff’s right to sue when a corporate merger transforms a liable third party into an
employer. Id.
III. RECOVERING FROM A CO-WORKER
There may be times when recovery against a co-worker or supervisor may be feasible; however, these situations are rare and most often are unworkable simply because any potential recovery may be outweighed by the cost of pursing the claim. Situations where pursuing a cause of action would be appropriate may arise where a co-worker has a personal insurance policy.
It should be noted that “the mere fact that [two] parties [hold a] position of employment with the same employer at the time of [an] accident is not sufficient to show that they [are] in the ‘same employ’ at the time of the accident.” Bell v. Kater, 943 A.2d 293, 297 (Pa. Super. Ct. 2008) (citing Fern v. Ussler, 428 Pa.Super. 210, 630 A.2d 896, 898-99 (1993)). When an employee is injured by a co-worker who is off the clock, or performing work outside of his or her duties when the injury occurs, then the PWCA may not act to prevent tort recovery. The crucial question is whether the act or omission that caused the injury occurred while the co-employee was in the performance of his or her duties as an co-employee.
When the PWCA does apply, the following two exceptions described below exist. 1. The co-worker’s intentional tort exception requires that the injury-causing conduct
be of the type that is “not normally expected to be present in the workplace.” The PWCA creates an exception for injury caused by a co-employee’s intentional wrongdoing.
If disability or death is compensable under this act, a personal shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.
Sec. 205, 771 P.S. § 441 (emphasis added). Pennsylvania courts have determined that the key factor in applying this exception is “whether the ‘intentional wrong’ is one that is not normally expected to be present in the workplace.” Snyder v. Speciality Glass Products, Inc., 441 Pa.Super. 613, 629, 658 A.2d 366 (1995) (quoting McGinn v. Valloti, 363 Pa.Super. 88, 94, 525 A.2d 737 (1987)); Baum v. NGK Metals Corp., 155 F.Supp.2d 376, 380 (E.D. Pa. 2001).
Intentional wrongs that have been held actionable include a physical assault that arose as a result of a work-place dispute, Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963); intentional infliction of emotional distress arising from statements made during a workers’ compensation hearing that amounted to an affront of a co-worker’s dignity and reputation as an attorney, Jones v. PMA Insurance Company, 343 Pa.Super. 411, 495 A.2d 203 (1985); misrepresentation of occupational health risks with the intent to mislead a co-worker, resulting in exposure to unsafe chemicals, Baum, 155 F.Supper.2d 376;
misrepresentation of information in reports sent to State Farm that resulted in State Farm’s refusal to pay a co-worker’s bills, Batoff v. State Farm Ins. Co., 977 F.2d 848 (3d Cir. 1992); misrepresentation that prevented a co-worker from seeking proper medical treatment for a workplace injury, McGinn, 363 Pa.Super. 88 (“Fraudulent misrepresentation is not a hazard normally expected to occur in the workplace and is therefore actionable.”); and
misrepresentation of medical test data that resulted in aggravation of workplace injuries, Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 606 A.2d 444 (1992);
On the other hand, alleged IIED by supervisors in severely reprimanding a worker for tardiness, threatening to discharge him, and demoting him to an entry-level position, has been found to be “clearly” acts which an employee would normally expect to occur at the
workplace. Snyder, 441 Pa.Super. at 629-30. Additionally, the court in McGinn v. Valloti stated that “an employee might expect the condition of the workplace itself to be unsafe; for example, where there has been a knowing neglect of safety regulations. “ 363 Pa.Super. at 95 (citing Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969); Higgins v. Clearing Mach. Corp., 344 Pa.Super. 325, 496 A.2d 818 (1985)).
2. The “personal animus” exception requires specific intent and proof of a non-work related motive.
Another exception is more so an exclusion. The PWCA defines the term “injury” in Sec. 301(c)(1), 771 P.S. § 411, to specifically exclude “an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment.” Accordingly, the party asserting this exception must prove (1) intention to injure, and (2) a non-work related motive.
Additionally, when the injury-causing act occurs on the employer’s premises, a strong presumption exists that the injured employee is covered by the PWCA. Wills Eye Hosp. v. W.C.A.B. (Dewaele), 135 Pa.Cmwlth. 6, 9, 582 A.2d 39 (1988) (cited by Edwards v. W.C.A.B. (Valve-Plus, Inc.), 894 A.2d 856, 859 (Pa. Commw. Ct. 2006)).
IV. CONCLUSION
Unfortunately, the Pennsylvania legislature and courts have been unwilling to remedy the injustices that so many employees have suffered under the current Workers’ Compensation system, and so the circumstances that would permit recovery outside of the PWCA are limited. Nevertheless, there are opportunities that should be explored when the PWCA system has failed to make an injured employee whole.
If you have suffered a workplace injury and would like to learn more about your legal rights and options outside of the Workers’ Compensation system, please contact Atlee Hall, LLP today for a free consultation. We have offices in Lancaster, Pennsylvania, but help victims across the state.
