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The exclusivity provision of the Pennsylvania Workers’ Compensation Act stops a plaintiff from making a claim against her employer for injuries allegedly caused by a private investigator conducting surveillance in connection with her original claim, a Philadelphia judge has ruled. “Any recourse for the use of surveillance in the workmen’s compensation proceeding can be obtained pursuant to the provisions of the Workmen’s Compensation Act,” Common Pleas Court Judge Alfred J. DiBona Jr. wrote in Spivak v. Affiliated Risk Control. In 1999, plaintiff Carolyn Spivak was injured while working at Pennsylvania Hospital. Spivak filed a workers’ compensation claim against the hospital, and the hospital decided to contest the claim. During litigation, the hospital hired Metro Private Investigators Inc. to evaluate Spivak. As part of the investigation, surveillance was conducted on Spivak. The hospital then tried to admit surveillance tapes for the workers’ compensation litigation, but the compensation referee refused to permit their admission. Spivak was then awarded compensation benefits that she continues to receive. The hospital and its insurer, Affiliated Risk Control, appealed the award. In April 2001, Spivak filed suit claiming that she was injured by the surveillance conducted by Metro Private Investigators and by the conduct of the defendants during the course of litigation. Metro Private Investigators, Affiliated Risk Control, Pennsylvania Hospital and its lawyers were named defendants in the suit. All the defendants filed preliminary objections to Spivak’s complaint, and Spivak then filed an amended complaint in July 2001, to which the defendants also filed objections. In October 2001, the common pleas court entered orders sustaining the defendants’ preliminary objections and dismissed Spivak’s amended complaint. Spivak then filed a second amended complaint in late October. Defendants then argued that Spivak’s claims were barred by the exclusivity provisions of the Pennsylvania Workers’ Compensation Act, that the claims were barred by the application of the absolute privilege doctrine and that Spivak’s individual claims were insufficient as a matter of law because she failed to set forth valid causes of action on each of her counts. In February 2002, the common pleas court sustained the preliminary objections and dismissed the second amended complaint. Spivak then appealed the decision. According to the opinion, all of Spivak’s claims were based upon conduct of the defendants that took place during the workers’ compensation proceeding. The defendants countered that the exclusivity provisions of the Workers’ Compensation Act, specifically � 481(a), barred her claims. DiBona turned to the supreme court’s ruling in Alston v. St. Paul Insurance Co., which held that the exclusivity clause of the Workers’ Compensation Act governs injuries that are related to the workplace in any way. The ruling, the high court said, “reflects the historical quid pro quo between an employer and employee whereby the employer assumes liability without fault for a work-related injury but is relieved of the possibility of a larger damage verdict in common law action.” The employee benefits from the speedy payment of compensation, the Alston court said, but forgoes recovery of some elements of damages. In turn, an employer’s liability, and the liability of its insurer, is exclusively governed by the Workers’ Compensation Act, the court said. “The workmen’s compensation system encompasses all disputes over coverage and the payment of benefits, whether they arise from actions taken by the employer, the employer’s insurance carrier, or the insurance carrier’s employees or agents,” the Alston court said. Spivak’s claims were, therefore, clearly barred by the exclusivity provisions of the act, DiBona said. “All of the allegations put forth by the plaintiff directly relate to the actions of the defendants in defending the workmen’s compensation proceedings. But for the plaintiff’s injury, there would be no workmen’s compensation proceedings and thus no surveillance of the plaintiff,” he wrote. Surveillance is commonplace, he reasoned, and is undertaken to verify and confirm the extent of injuries and disabilities sustained by claimants, and, in Spivak’s case, its use was reasonable and justifiable. “Any recourse for the use of surveillance in the workmen’s compensation proceeding can be obtained pursuant to the provisions of the Workmen’s Compensation Act,” DiBona wrote. All of Spivak’s claims presented in her second amended complaint related to the defendants’ conduct in the workers’ compensation proceedings, DiBona said, and the Worker’s Compensation Act provided the exclusive remedy for Spivak. DiBona also sided with the defendants on their argument that Spivak’s claims were barred under the absolute privilege doctrine. “As a general rule, there is no civil liability for statements made during the trial or argument, so long as the statements are pertinent … . Plaintiff premises her claims against the various defendants on conduct occurring and statements made during the workmen’s compensation proceedings,” DiBona said. The comments in question were also pertinent to the defense, he determined. Accordingly, the defendants were entitled to absolute privilege, he ruled. Because Spivak’s claims in the second amended complaint failed pursuant to the exclusivity provisions and the absolute privilege doctrine, DiBona did not address the defendents’ argument that Spivak’s counts did not set forth a valid cause of action.

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