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Workers’ compensation issues are an unexpected consequence of the Sept. 11 disaster. While certain workers who went to New York City to assist in the cleanup were covered under the Workers’ Compensation Act, others were not, and may not be entitled to any death or disability benefits. In New Jersey, Assemblyman Joseph Suliga of Elizabeth introduced assembly bill A3849 on Oct. 3 in response to the problem. The bill would extend benefits to firefighters and safety professionals who respond to disasters and emergencies anywhere in the U.S., particularly those that volunteer their services. There hasn’t yet been an initiative to introduce similar legislation in Pennsylvania, said Bruce Hanson, executive director of the House Labor Relations Committee in Harrisburg, Pa. “If there is a problem with Pennsylvania citizens we will of course address it,” he said Wednesday. “I just haven’t heard anything about that so far.” But disaster relief workers from Pennsylvania could face the same problem now and in the future if attacks requiring emergency help continue. The problem arises if an employee goes out of state to volunteer and is hurt. A paid worker who is either directed by his Pennsylvania employer to help in a disaster or who is given special protection by the Pennsylvania Workers’ Compensation Act is likely to be covered; but many are not protected by the act. So-called “pure volunteers” fall into a hollow. So does an ironworker or carpenter who is employed but not directed by his employer to render assistance. Right now, the need for extended protections could be more pressing for such measures in New Jersey because of its proximity to New York. But Thomas R. Bond of Marshall Dennehey, who practices workers’ compensation defense, said he anticipates that Pennsylvania will see its share of claims, as well. “Given the risk involved and the enormity of the situation, I’m sure there will be claims,” Bond said. Traditionally, volunteer workers have not been covered under the Pennsylvania Workers’ Compensation Act, said Bond. But the act has by legislative fiat given the protection of workers’ compensation to certain volunteers who would likely be called to duty for disaster relief but might not otherwise be eligible for workers’ compensation coverage. For purposes of the statute, the act defines a list of certain workers as “employees.” Included in this list are members of volunteer fire companies, volunteer ambulance corps, volunteer rescue and lifesaving squads, forest firefighters and volunteer hazardous materials response teams. But while deputy game protectors and special waterways patrolmen also appear on this quirky list in Section 1031 of Title 77 in Purdon’s Pennsylvania statutes, ironworkers — crucial to the rescue and recovery operation in New York — have not. Unlike firefighters and rescue squads, there are no “volunteer ironworkers,” so these workers would need their employer’s authorization to be covered by workers’ compensation. The heart of applying the act lies in the determination of whether an employee was acting in the course of his employment or of his own accord, said Judge Martin B. Burman of the Pennsylvania Bureau of Workers’ Compensation. “You could get into a debate over whether or not the employer directed the employees to go,” he said. “If it’s just a group of co-workers who decide to go, that may not be entitled to [workers' compensation] coverage, but if the employer said, ‘Go and make sure you wear your Joe’s Wrecking Company T-shirts, this will be great PR,’ then you have a closer question there. “A ‘pure volunteer,’ who just got up one morning and decided to go to New York would have a problem [getting workers' compensation]. Good Samaritans are not a favored class [under the act],” said Burman. Under the state Workers’ Compensation Act, a salaried firefighter who was directed by his employer to go to New York would receive two-thirds of his weekly wage. A volunteer firefighter would be ascribed the statewide maximum average weekly wage, a figure calculated annually by the Workers’ Compensation Bureau. Attorney Jeffrey S. Gross of Batt Kauffman, a co-chairman on the Philadelphia Bar Association workers’ compensation section, represents workers’ compensation claimants. Although there is no pending bill in Pennsylvania to change the law to extend worker protections, Gross said he thinks such legislation would be good public policy. “I’m a claimant’s attorney. I think protection of workers in general, allowing or enabling them to get benefits for helping in a disaster, is a good idea. Absolutely, I think they should be protected,” he said. Bond said he would welcome an amendment to the current Pennsylvania Workers’ Compensation Act, if the resulting effort was coordinated by a third party. “We would need a state agency or clearinghouse, because there would have to be some standards to ensure that the people who are going are qualified to do what they’re doing,” said Bond. “If they aren’t qualified, they could be endangering other people in the rescue effort. “We also need to make sure they are physically able to do the work. What if someone has a bad back, and they want to go do ironwork? Then if they get injured, they’ll be claiming that they hurt their back in the rescue.” Bond acknowledged, however, that pre-existing conditions generally are not a bar to coverage under the act. But Leonard A. Cohen, who has practiced as a claimants’ attorney for 16 years, said the standards Bond wants would defeat the public policy reasons behind giving protection to volunteers, and that Section 1031 of Workers’ Compensation Act should be amended to include volunteers at disaster sites. “If Liberty Place collapses and people rush in to help, should we hand them all questionnaires before they start rescuing people?” he asked. “People like to volunteer because it’s the right thing to do. They should be compensated for their wage loss.” If a volunteer were unemployed and didn’t have wages to lose, Cohen said that the volunteer should receive the state’s average weekly wage figure calculated by the Worker’s Compensation Board. “Considering the world we live in right now, it seems like the right thing to do.” In the past, volunteer workers have filed workers’ compensation claims against the municipal agency they assisted. But two cases decided by the Pennsylvania Commonwealth Court in March 1992 offered conflicting results with the same reasoning. Under Pennsylvania case law, an individual who “spontaneously injects himself into an emergency situation” is a volunteer who is not eligible for workers’ compensation benefits. An individual who responds to a request for emergency assistance on behalf of an employer constitutes an employee eligible for workers’ compensation benefits. But that distinction can be a close call. In Haines v. WCAB, the court denied compensation to a citizen who assisted a deputy sheriff in subduing an escaped prisoner. The court said the volunteer did not become a “county employee” for purposes of workers’ compensation and could not receive benefits for his injuries. But in Borough of Phoenixville v. WCAB, the court allowed compensation to a volunteer who spontaneously helped a firefighter by running up an embankment to tell him how fast a fire was spreading to a row of homes on the next street. What accounted for Haines’ denial? In both cases, the volunteers offered to assist first. Haines asked the officer if he needed help, and the deputy replied that he could “use a hand.” The prisoner was kicking and striking the deputy, and Haines helped subdue the prisoner picking up the prisoner’s feet and placing them under his arms. In so doing, Haines injured his left elbow. In Phoenixville, the claimant, spotting smoke at the end of the street in a residential area, went to the scene where Phoenixville Hook and Ladder Co. No.1 was fighting a brush fire. The claimant asked the fireman if he needed any help and the fireman said yes. But the fireman then directed the volunteer to run up the embankment to tell him how fast the fire was spreading. While climbing it, the volunteer fell, sustaining compound fractures in his leg. The difference in Phoenixville, according to the court, was that although the claimant spontaneously offered help, he “did not render assistance to the fireman in a spontaneous manner of claimant’s own choosing.” Instead, the court said, the claimant was “subject to the direction and control of the fireman at the scene,” and was therefore able to collect benefits. Kenneth F. DeMarco, who started the workers’ compensation department at Philadelphia’s Post & Schell in 1979 and is now a partner at the firm, said that making the distinction between benefits eligibility and ineligibility in such circumstances is a matter of degree. In the case of the World Trade Center bombing, DeMarco said, “To the extent that there is knowledge of the government entity and there is direction given by them, there could be liability. “If they weren’t turning the volunteers away, if they were giving them tools to use and if there was a routine established, like an eight-hour shift — the more of a permanent nature there is, the greater the possibility is that there will be liability on the government entity.” Conversely, DeMarco said, it would be inappropriate for a volunteer who “jumps in for one or two hours” to be eligible for benefits. “I would have a problem with that, because it’s so hard to prove. What would prevent someone with a fraudulent intent from making a claim? Someone who already has a broken leg saying ‘Yes, I was there and I broke my leg.’ How could you possibly defend against it? “You need guidelines. There has to be some kind of line-drawing. Otherwise, it could be a free-for-all.”

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