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A commonwealth employee injured on the job cannot collect workers’ compensation benefits from his employing agency and still reserve the right to sue a separate state agency over his injuries, a Commonwealth Court panel has ruled in a case of first impression. Kincel v. Commonwealth of Pennsylvania Department of Transportation stems from injuries State Trooper Gerald Kincel received while investigating a car accident on Route 81 in July 2000. As he did so, part of the road collapsed, and he fell into a 9-foot-deep hole, receiving injuries to his left knee, right ribs and left wrist, according to the panel’s opinion. Kincel later claimed the weak spot in the road had been created by a PennDOT subcontractor, and that PennDOT had been aware of the problem for months before his accident occurred. In reversing a Luzerne County, Pa., judge’s decision in the case, the Commonwealth Court concluded that PennDOT and the state police do not represent “separate enterprises” for the purposes of the exclusivity provisions of the Workers’ Compensation Act. “Because the commonwealth is a single legal entity,” Judge Mary Hannah Leavitt wrote, “we believe it would take very clear language to effect the result that each agency is a separate employer. … Any damages recovered by Kincel in his tort action against PennDOT would be paid from the state treasury, which, as PennDOT demonstrated, is also the ultimate source of funding for Kincel’s workers’ compensation benefits.” Leavitt was joined by Judge Bernard L. McGinley and Senior Judge James J. Flaherty. In response to Kincel’s complaint, PennDOT moved for summary judgment, arguing that Kincel’s claim was barred by §303 of the WCA, which renders benefits a claimant’s sole means of recovery for injuries. “The trial court denied PennDOT’s summary judgment motion, reasoning that each of the commonwealth’s governmental agencies is an employer independent of the commonwealth itself and that PennDOT is neither Kincel’s employer nor his statutory employer,” Leavitt wrote. “The trial court’s analysis is flawed,” she continued later. “While it may be true that Kincel is not assigned to PennDOT, the real issue is whether Kincel is an employee of the commonwealth.” The state police commissioner is appointed by the governor, and the salary levels of the troopers are subject to the governor’s approval, Leavitt noted. In addition, troopers’ paychecks are drawn from the state treasury, and their pensions come from the state employees’ retirement system. “It is beyond peradventure that all state troopers, including Kincel, are employees of the commonwealth who ultimately serve at the behest of the governor,” Leavitt wrote. The panel rejected Kincel’s argument that the state Supreme Court’s 1999 decision in Tork-Hiis v. Commonwealth is controlling in his case. In that case, Pennsylvania’s high court — reversing a Commonwealth Court panel’s previous holding — ruled that the commonwealth and its agencies are distinct legal entities. But Tork-Hiis related to sovereign immunity statutes, while Kincel concerns workers’ comp law, Leavitt wrote. “That the commonwealth and its various agencies are distinct entities for purposes of waiver of sovereign immunity does not mean that they are distinct in other contexts,” Leavitt wrote. “Such is the case for workers’compensation. The definition of ‘employer’ in the [WCA] does not distinguish the various agencies of the commonwealth from the commonwealth itself. Rather, the [WCA] defines ‘employer’ as ‘the commonwealth and all governmental agencies created by it.’ The Legislature could have provided that each agency is a separate employer for purposes of the [WCA], but it did not.” Accepting Kincel’s argument would “upset the delicate balance” the WCA strikes between insulating employers from liability and guaranteeing injured workers benefits. Kincel’s attorney, Neil O’Donnell of the O’Donnell Law Offices in Wilkes-Barre, said his client is considering his appellate options. Kincel, a Moosic resident, has returned to regular duty, but continues to have problems with his left knee, O’Donnell said. O’Donnell noted that the Supreme Court reversed the Commonwealth Court in Tork-Hiis. “That is certainly one of the considerations that we will account for in deciding whether or not to seek review,” he said. Kincel still has a viable action against the PennDOT subcontractor in the case, he added. Deputy Attorney General Michael Giannetta of the torts litigation section in Scranton, who represented PennDOT in the matter, said he had uncovered cases with similar fact patterns, but none that had reached the appellate level. Had the panel decided in Kincel’s favor, Giannetta said, “the negative effect would have been that the commonwealth would not have been treated the same as a private employer under the Workers’ Compensation Act.”

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