truck
(CANDACE WEST / COPYRIGHT 2012)

A health care company was not barred from arguing in a workers’ compensation action that a former employee was acting outside the course of his employment, even though the company had admitted in a previous civil action that the former employee had been acting in the course of his employment, the Commonwealth Court has ruled.

In its Aug. 11 decision in Marazas v. Workers’ Compensation Appeal Board, a three-judge panel of the court ruled that judicial estoppel did not bar the health care company’s arguments because the previous admission was not dispositive of the civil action.

Judge Robert Simpson, who wrote the court’s unanimous opinion, said that because the former employee had voluntarily withdrawn the civil action, judicial estoppel could not apply.

Despite that, Simpson found that the delivery driver in the case had been acting in the course of his employment, and Simpson reinstated a decision from the workers’ compensation judge granting him recovery.

According to Simpson, Paul Marazas, who drove delivery trucks for Vitas Healthcare Corp., reported for work on the company’s premises to receive his daily itinerary. After reviewing his list of assigned stops, he advised his manager that he was tired because he’d spent the weekend on-call. He requested to have some of the stops removed, but the manager refused. Marazas then stated he could not continue under those conditions, and turned in his keys and phone to the manager, indicating he quit, Simpson said.

The manager told Marazas that he needed to remove his personal belongings from the truck, and pursuant to company policy, the manager accompanied Marazas. According to Simpson, Marazas tripped over a pallet jack while walking to the warehouse on the premises after he had removed his items from the truck as directed.

Marazas filed a civil suit in the Delaware County Court of Common Pleas, seeking damages as a business invitee, Simpson said. Marazas later withdrew that action after Vitas Healthcare pleaded that he was in the scope of employment at the time of his injury. He then filed a workers’ compensation claim petition, alleging work-related injuries to his ankle, knee and back.

A workers’ compensation judge held a series of hearings where Marazas and a witness testified. The judge found him credible, and awarded him benefits from November 2005 through July 2008, Simpson said.

Vitas appealed, arguing that Marazas terminated his employment prior to sustaining the injury, so the injury could not be covered under the act. The board vacated and remanded the order, telling the judge to examine whether Marazas was acting within the scope of his employment.

On remand, the judge admitted the complaint Marazas filed in Delaware County, as well as Vitas’ answer and new matter. In the pleadings, Vitas had admitted that Marazas was its employee, and workers’ compensation was the sole remedy.

The judge ruled that although Marazas had quit before he sustained his injury, he had been acting in the scope of his employment because he was acting in Vitas’ interest at the time. The judge adopted her earlier decision in full.

Vitas appealed again, and the board again reversed the judge.

Relying on the Commonwealth Court’s 2011 decision in Little v. Workers’ Compensation Appeal Board, the board held Marazas wasn’t within the scope of his employment at the time because he quit before he fell.

Marazas appealed to the Commonwealth Court and contended Vitas was judicially estopped from arguing he was not an employee because the company had admitted that he was acting in the scope of employment in the civil suit. The parties also disputed whether Marazas was acting in the scope of his employment.

Simpson found that the company had admitted in verified filings that Marazas was acting in the scope of his employment, and that the position was inconsistent with the company’s later arguments.

Simpson noted that, according to the state Superior Court’s 1969 decision in Ham v. Gouge, the inconsistent decision needed to have persuaded a decision-maker for the judicial estoppel doctrine to apply.

“Here, as in Ham, there was no legal compulsion requiring claimant’s withdrawal. Employer cannot be estopped from taking a position contrary to the one it never established,” Simpson said.

Simpson also noted that Marazas was acting under the instructions of the manager, and held that he was therefore under the employer’s control at the time. He also noted that employees can be found to be within the scope of employment, even when not furthering a boss’ interest, and deferred to the workers’ compensation judge’s findings.

“Although claimant quit before he was injured, he was still within the scope of employment because he was acting at employer’s direction, and thus furthering employer’s interests,” Simpson said.

Vitas Healthcare’s attorney, Janet Huff of Moosic, Pa., said that she disagreed with the ruling and filed for reargument in the case.

Marazas’ attorney, George Walker of Larry Pitt & Associates.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 18-page opinion in Marazas v. Workers’ Compensation Appeal Board, PICS No. 14-1322, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •