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In a victory and defeat for employees injured off the work site, the Pennsylvania Commonwealth Court has issued two key rulings interpreting what constitutes activities performed in the course of employment in workers’ compensation litigation. First, in Sekulski v. Workers’ Compensation Appeal Board (Indy Associates), PICS Case No. 03-0927 (Pa. Commw. June 18, 2003) Leadbetter, J. (9 pages), the court denied benefits to claimant David Sekulski after he was attacked by unknown assailants while he was on call with his company, Indy Associates, but not actively engaged in a work-related activity. The court said an employee on call is not operating in the course of employment unless he is engaged in work-related activities at the time of injury. “To hold otherwise,” the three-judge panel said, “would impose liability on an employer for the safety of its employees 24 hours a day regardless of whether the employee is actually furthering its business or affairs when injured.” The second case examined the “coming and going” rule in the context of a weekend business meeting. In Village Auto Body v. Workers’ Compensation Appeal Board (Eggert), PICS Case No. 03-0953 (Pa. Commw. June 19, 2003) Leavitt, J. (10 pages), the court affirmed the award of death benefits to the family of a man killed in a motorcycle accident on his way home from a weekend business meeting with his employer, who was also his father. The company, Village Auto Body, had argued that the decedent, David G. Eggert, was engaged in an extended social visit, rather than a business meeting, with his father, Peter Eggert, and several other family members. But the court determined that despite the social aspect of the visit, the meeting was initiated to talk business. As such, it constituted an exception to the coming and going rule, as David Eggert was on a special mission for his employer at the time of the accident. “Even as decedent left the house, he and [Richard] Eggert discussed business,” the three-judge panel wrote. “Because the nature of the visit remained oriented to business, we conclude that decedent did not deviate from the special mission.” The court, however, denied the claims of David Eggert’s wife, Linda Eggert, for medical and psychological expenses. On that issue, the court found that Section 307 of the Workers’ Compensation Act, while providing employee’s families with wage loss benefits and reimbursement for burial expenses, is silent on expenses with regard to survivor medical expenses. Thus, the court held, medical and psychological expenses, incurred by the deceased’s family, are not reimbursable. Patrick R. Vitullo of Clemens & Vitullo in Plymouth Meeting — counsel for Linda Eggert, the wife of David Eggert �- said the ruling was fair and on point, providing employees and employers with a clearer understanding of the coming and going rule. Specifically, Vitullo said, the case makes an important distinction between situations in which an incidental business discussion might take place, such as at an office party, and situations in which a meeting is called specifically for business purposes. “Here the specific mission was clear on the last business date of the week before the weekend of his death,” Vitullo said. “It fell clearly within the parameters of the special mission exception. � “This was not a case where there was an incidental discussion of business but rather there was a business purpose to the meeting that was already set forth between employer and employee. [The court's ruling] does clarify that issue because it can be a very ambiguous or difficult issue when you try to prove a special mission case. This gives it a little cohesion in the case law.” Joel I. Herzfeld of Rawle & Henderson in Philadelphia, counsel for Village Auto Body, was unavailable for comment at press time. WEEKEND BUSINESS In considering the case in Village Auto Body, the court looked first to Section 301(c)(1) of the Workers’ Compensation Act, which provides that in order for an injury to be compensable, it must be incurred in the course of employment. With that in mind, the three-judge panel, including Judges Doris A. Smith-Ribner, Mary Hannah Leavitt and Senior Judge Charles P. Mirarchi Jr., concluded that David Eggert was on a special mission for his employer when he stopped by his father’s home on a Sunday in July 2000 to discuss business. Richard Eggert, the owner of the Village Auto Body, was planning to take a couple days off when he sat down with his son the weekend before to discuss some projects that needed to be completed in his absence, Leavitt wrote for the court. After spending about 30 to 45 minutes talking business, David and Richard Eggert were joined by several other family members for a social visit, including Linda Eggert, her children and David Eggert’s grandmother. On his way home, David Eggert was involved in a fatal collision on his motorcycle, Leavitt said. Concluding that David Eggert was on a special mission for the Village Auto Body, a workers’ compensation judge awarded Linda Eggert death benefits and held the employer liable for compensation of psychological services and medications, Leavitt said. On appeal, the Workers’ Compensation Appeal Board affirmed the award of death benefits but reversed on the award of psychological and medical expenses. On appeal to the Commonwealth Court, Village Auto Body argued that David and Richard Eggert were engaged in an extended social visit, rather than a business meeting, before the motorcycle accident occurred. To support this assertion, the employer cited Brown v. Workmen’s Compensation Appeal Board (Linken Employment Nursing Services), 588 A.2d 1014 (Pa. Commw. 1991), in which the court refused to find a special mission exception when a claimant was struck by a car after leaving a company Christmas party. “We reasoned that the claimant was not required to attend the party and her attendance was not necessary to further employer’s interest in completing a job assignment,” Leavitt wrote. “Here, however, decedent was required to meet with [Richard] Eggert over the weekend to discuss jobs in the shop that had to be completed during Eggert’s absence. Further, the meeting, at the time and place of employer’s choosing, was necessary to discuss business matters. Under the Brown principles, decedent was on a special mission for employer when he met with [Richard] Eggert.” The Village Auto Body also relied on Carr v. Workmen’s Compensation Appeal Board (May Department Store), 671 A.2d 780 (Pa. Commw. 1996), in which the court ruled that an employee’s injury was not work-related because it occurred several hours after she left an out-of-town work conference to go sightseeing and drinking. Again, the court drew a distinction. In Carr, Leavitt wrote, “this court reasoned that the claimant was no longer furthering the business of her employer at the time of injury because her sightseeing (and drinking) in Boston was not required, and it did not further employer’s business. “Here, decedent continued to further the business of employer even after the formal meeting. Although decedent socialized with the family, he also continued to discuss business matters with [Richard] Eggert.” After determining that Linda Eggert was entitled to the death benefits, the court turned to a second issue of first impression �- whether death benefits for an employee killed in the course of employment includes the medical and psychological expenses of his surviving family. While counsel for Linda Eggert argued that “compensation” has been interpreted through the Workers’ Compensation Act to encompass medical expenses, the court noted it has never said categorically that the word has this meaning in every section of the act. In Section 307, which provides for the type of compensation payments available to survivors of a family member killed in a work-related death, there is no mention of medical expenses to a surviving spouse or children.Accordingly, the court said, such benefits are not allowed. ON CALL In Sekulski, the court denied workers’ compensation benefits to claimant David Sekulski, who was beaten and robbed by unknown assailants while on call with his employer, Indy Associates, in December 1998, according to the court opinion. Again, at issue in this case was what constitutes a compensable injury under Section 301(c)(1) of the Workers’ Compensation Act. Sekulski had argued that because he was on call, which required him to carry a beeper and remain within 15 minutes of the apartment complex where he worked as a maintenance man, he should be able to receive compensation for his injuries. A three judge panel, including President Judge James Gardner Colins, Judge Bonnie Brigance Leadbetter and Senior Judge Joseph F. McCloskey, did not agree. The panel concluded that only injuries sustained while in the course of employment are compensable. Being on call with an employer is simply not enough, the court held. In his initial claim, Sekulski said he could not remember if he had been paged by an apartment tenant when he was attacked on his way home from a bowling alley. But according to the testimony of the property manager and other maintenance workers, Sekulski had not been paged when the attack occurred. Thus, a WCJ denied all benefits, concluding that Sekulski’s injuries were not sustained in the course of employment. The WCAB affirmed. On appeal to the Commonwealth Court, Sekulski argued that he was furthering the affairs of his employer simply by being on call, carrying a pager and remaining within the vicinity of the apartment building. In support of this assertion, he cited Keiter v. Workmen’s Compensation Appeal Board (Avondale Borough), 654 A.2d 629 (Pa. Commw. 1995), in which the claimant, a volunteer fireman, was injured during a lunch break while he was on call with his borough fire company to provide New Year’s Eve party goers a safe ride home. But, the court said, the circumstances of that case differed significantly from Sekulski. “Since the claimant’s commanding officer had approved the lunch break [in Keiter] and the claimant kept his communication equipment with him and remained within close proximity to the firehouse while on break,” Leadbetter wrote for the court, “this court held that claimant was in the course of employment when he sustained his injuries. … Unlike Keiter, claimant’s injury [in Sekulski] did not occur during a work shift and employer did not direct, authorize or approve of claimant’s non-work-related activities while ‘on call.’” The court also distinguished another case cited by Sekulski, involving an electrician who was on call with his employer when he was involved in an automobile accident. In City of Philadelphia v. Workers’ Compensation Appeal Board (Stewart), 728 A.2d 431 (Pa. Commw. 1999), the electrician-claimant was contacted while on call by another employee to discuss an electrical problem. “When the claimant learned that his suggestions had not worked,” Leadbetter wrote, “he was under the mistaken belief that he had been asked to come to work. On the way to work, the claimant was involved in an automobile accident, which caused disability.” Applying the coming and going rule in the City of Philadelphia case, the court concluded that the claimant was within the special assignment exception to the rule. This was not the case in Sekulski, the court said. “The cases relied upon by [Sekulski],” Leadbetter wrote, “as well as our own research, do not support the proposition that an employee is in the course of employment if he sustains an injury while he is �on call’ and reachable by employer but engaged in non-work-related activities off of the employer’s premises.” Accordingly, the court affirmed the WCAB’s denial of all benefits. Richard L. Orloski of Allentown, counsel for Sekulski, said he is preparing a petition for allocatur to the state Supreme Court. He declined further comment. Paul C. Cipriani Jr., counsel for Indy Associates, could not be reached for comment at press time.

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