Monday, September 12, 2011

Decedent in Home Office Was Not in Course of Employment if on Personal Comfort Break

In Werner v. WCAB (Greenleaf Service Corporation) the decedent had a home office. The claimant surviving spouse found the decedent unresponsive in his home office desk chair. The decedent suffered a massive intracranial hemorrage. The evidence indicated the decedent fell on his outside steps, then went in an upstairs bathroom before going down to his home office.

The defense focused on testimony that the decedent was supposed to be in the employer's headquarters when he was not travelling in his job in international sales. The employer did not dispute that it provided the office equipment in the home office or that the claimant sent some work related e-mails the morning of his accident. The claimant had cancelled an overseas trip because he was getting medical care for a hand laceration. The employer witnesses testified they considered him to be on sick leave, and the WCJ found this testimony credible. The WCJ found the claimant to be not in the scope of employment.

The claimant, however, was salaried with flexible hours and had made no formal request for sick leave. The Commonwealth Court framed the issue as whether the decedent was furthering the business interests of the employer when he was injured. The precedent they analyzed was Verizon Pennsylvania, Inc. v. WCAB (Alston), a case in which the claimant worked in a home office. In Alston, the claimant received a work related phone call while on a personal comfort break. She fell down the stairs while still on the phone.

The Court explained an employee in a home office is a "stationary" employee. When a stationary employee leaves the premises during authorized breaks for personal reasons, the employee is not within the course of employment. The claimant bears the burden to prove all elements of the claim. Because the claimant in this case could not prove the decedent was furthering the business interests of the employer when he fell outside, the claimant did not meet her burden to show the decedent was injured in the scope of employment. The decision of the WCJ was affirmed.

Although not cited by the Court, the case of Department of Labor and Industry v. WCAB (Savani) is on point. In that case, an employee on a paid break went outside for a walk around the building and fell in the street. The WCJ and WCAB awarded benefits, but the Court held the claimant was a stationary employee attending to her personal comfort and was not acting in furtherance of the employer's business or affairs. The Court reversed, holding the claimant's injuries were not in the scope of employment.

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Monday, August 29, 2011

Claimant Who Returns to Light Duty and is Dismissed for Concealing Employment During Disability is Not Entitled to Reinstatement.

In Sauer v. Workers' Compensation Appeal Board (Verizon Pennsylvania, inc.) the Claimant returned to light duty on August 16 and a notification of suspension was issued. On August 17, the Claimant and his union representative were shown surveillance of the Claimant doing various work during his period of disability. The Claimant had reported no earnings from other employment via LIBC-756. The Claimant was discharged.

The Claimant did not challenge the notification of suspension or grieve the firing. In October he filed a reinstatement petition and in December he filed a review petition to add additional physical and psychological injuries. The WCJ dismissed the review petiton based on the credibility of the doctors who testified and dismissed the reinstatement petiton based on the Claimant's dismissal for cause.

The Claimant argued he had only returned to light duty when he was seperated from employment, and the work depicted in the surveillance did not demonstrate that the Claimant could perform full duty. The court held, however, that the evidence met the standard of proof to conclude the Claimant was discharged for cause and the Claimant's loss of earnings was unrelated to the work injury. The decision of the WCJ was affirmed.

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Monday, August 22, 2011

Adult Stem Cell Treatment of Degenerative Disc Disease

A company experimenting in adult stem cell treatment of degenerative disc disease has announced a successful phase 2 clinical trial. The procedure injects mesenchymal precursor cells into damaged intervertebral discs. The company reported that in the clinical trial the subject disc demonstrated reversal of the degenerative process, regrowth of disc cartilage, and sustained normalization of disc pathology, anatomy and function for at least six months.

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