eNotes: Workers’ Compensation – July 2021

SIGNIFICANT CASE SUMMARIES

PA CASE SUMMARIES

Jack Lehr Electric v. Unemployment Comp. Bd. of Review
Commonwealth Court of Pennsylvania
No. 913 C.D. 2020

Decided: June 8, 2021

In a published opinion, the Commonwealth Court held that an employee that tested positive for marijuana was eligible for unemployment benefits because he had acquired a medical marijuana card beforehand, he disclosed such information to the Employer, he was not under the influence of marijuana during working hours, and the Employer’s Drug Policy contained an exemption for proper use of prescription medications.

Background

The Claimant, employed as a warehouse assistant, was terminated after failing a drug test administered under the Employer’s Drug Policy. As part of his duties, the Claimant had to operate vehicles, equipment, and climb ladders. Before being randomly selected for drug testing, the Claimant had informed the Employer of his medical marijuana patient identification card. The Claimant credibly testified that he did not take marijuana during work hours and that he was not under the influence of marijuana at the time of testing. Upon testing, the Claimant’s results were positive for marijuana, and he was discharged.

The Claimant applied for unemployment benefits. The Referee denied benefits explaining that the Claimant was ineligible under Section 402(e.1). Section 402(e.1) mandates ineligibility for unemployment benefits when the discharge from employment is due to a failure to pass a drug test conducted pursuant to the Employer’s policy. On appeal, the Unemployment Compensation Board of Review (UCBR) reversed. The Employer appealed to the Commonwealth Court.

Holding

On appeal to the Commonwealth Court, the Employer argued that the time that the Claimant ingested the marijuana was irrelevant because the drug remained detectable upon testing. The Employer also argued that the existence of the medical marijuana card does negate the fact that the Claimant failed the drug test.

Using a substantial evidence analysis, the Court held that the record contained enough evidence to support the UCBR’s holding that the Employer failed to demonstrate that the Claimant violated its Drug Policy. Specifically, the Employer’s Drug Policy prohibited employees from working while taking prescription medications and required employees to report such medications. The Employer’s Drug Policy also created an exemption for the proper use of prescription medications but explicitly prohibited any use of marijuana during working hours or immediately before working hours.

The Court noted that the Claimant had reported his prescription for marijuana and that he did not use marijuana during working hours. Additionally, the Employer had conceded by stipulation that the Claimant was not under the influence of marijuana at the time of testing. Lastly, the test results did not establish that the Claimant consumed marijuana immediately before work or that he was impaired on the day of the test. The Court held that neither the evidence on record nor the Claimant’s positive marijuana test established a violation of the Employer’s Drug Policy. Therefore, the Court affirmed the UCBR’s holding that the Claimant was not ineligible for unemployment benefits.

Takeaway

In an era of medical marijuana identification cards, particular importance should be given to drafting the Employer’s Drug Policy. This Court’s holding demonstrates that a positive marijuana test result, by itself, will not be enough to disqualify an employee from receiving unemployment benefits.

Questions about this case can be directed to Marjorie Moreno at (717) 237-7155 or mmoreno@tthlaw.com.

Stewart v. WCAB (Bravo Group Services, Inc.)
Commonwealth Court of Pennsylvania
No. 812 C.D. 2020

Decided: July 2, 2021

An employee was deemed in the course and scope of employment when he fell while walking from a shuttle (not operated by the employer) to the steps outside the front door of the employer’s building.

Background

On each day he worked, the claimant used public transportation to commute to a nearby station, then took a shuttle operated by Glaxo Smith Kline to the Glaxo Smith Kline building in King of Prussia, Pennsylvania. The claimant worked as a janitor for Bravo Group (Employer), which provided janitorial services to Smith Kline. On March 22, 2018, as he was exiting the shuttle van in front of the Smith Kline building before his shift, the claimant fell and fractured his foot. The shuttle service was not owned or controlled by Employer, and the claimant was not compensated for travel or required to use the shuttle. The claimant filed a claim petition seeking benefits for his injury. The Workers’ Compensation Judge (WCJ) denied the claim petition, concluding that the shuttle was not part of Employer’s “Premises” and the claimant was not in the course and scope of employment at the time of injury. The claimant appealed to the Workers’ Compensation Appeal Board (WCAB). The WCAB affirmed the WCJ on the grounds that the claimant was injured while commuting to work using a third party shuttle service, taking the injury out of the scope of employment under the “coming and going” rule. The claimant appealed to the Commonwealth Court.

Holding

The Commonwealth Court reversed the WCAB. The Court recognized that an employee injured on the employer’s premises may bring the matter within the course and scope of employment. Accordingly, the three-prong test in WCAB (Slaugenhaupt) v. United States Steel Corp., 376 A.2d 271 (Pa. Cmmw. Ct. 1977) applied: (1) whether the site of the accident was “so connected with the employer’s business or operating premises as to form an integral part thereof;” (2) whether the employer required the claimant to be present on the premises; and (3) whether the injury was caused by the condition of the premises. The Court held that the first element was satisfied because the accident occurred a few feet from the front entrance, which was a reasonable means to access the premises. The claimant was in the front entrance area directly because of his employment, as he was entering the building less than thirty minutes before his shift. Thus the second Slaugenhaupt prong was satisfied. Finally, although the claimant tripped over his own feet and hit the shuttle steps as he fell, he landed on the ground in front of the entrance. The Court held that, because the impact onto the ground “played some role in the causative chain,” the third Slaugenhaupt prong was met. Accordingly, the Court held that the claimant had proven that he sustained injuries in the course of employment.

Takeaway

This case demonstrates how courts can broadly interpret the “course and scope of employment” requirement to include areas like parking lots, public streets, and common areas. Given the fact sensitive nature of this inquiry, it is important to consult with an experienced workers’ compensation attorney to determine whether an injury like the one in Stewart is compensable.

Any questions regarding this case can be addressed to John T. Morgan, Esquire, at jmorgan@tthlaw.com or (267) 861-7595.

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VA CASE SUMMARY

Merck & Co., Inc. v. Vincent
Supreme Court of Virginia
858 S.E.2d 190

Decided: May 27, 2021

The Supreme Court of Virginia clarified the compensable consequence doctrine to conclude that when a second limb is permanently disabled as a result of a compensable consequence, the second accident does not count as “the same accident” for purposes of permanent total disability.

Background

Claimant injured his neck and left arm in 2009, and received an award. After Claimant began treating for his original injuries, he fell down stairs at his home and injured his left knee. The fall was medically attributed to dizziness caused by prescribed medication, and so he was awarded benefits for his left knee as a compensable consequence of the earlier accident. In 2017, Claimant sought permanent total disability. The employer challenged, arguing that the two injuries had not occurred “in the same accident” as required by § 65.2-503(C), and therefore he was not entitled to permanent total disability benefits. The Deputy Commissioner awarded permanent total disability benefits, and the Court of Appeals affirmed. The employer appealed.

Holding

The Supreme Court of Virginia reversed, adopting a plain reading of § 65.2-503(C). Even though in some contexts, a compensable consequence is treated the same as though it had happened in the original accident, the plain language of the statute indicates permanent total disability is only awarded for the loss of two limbs “in the same accident.” As proof for this supposition, the Supreme Court relied on Amoco Foam Products Co. v. Johnson, 257 Va. 29 (1999). In Amoco Foam, a compensable injury begat a second injury as a compensable consequence. When a third injury was only causally connected to the second injury, and not the first one, the third injury was not compensable. The third injury is too attenuated from the original injury to be compensable under that doctrine. Here, too, the second permanently disabled limb is too attenuated from the initial accident for purposes of permanent total disability.

Takeaway

This decision will limit extended exposure in compensable consequences cases, cutting off the possibility of permanent total disability when only one limb was permanently disabled in the initial accident. However, the Supreme Court’s ruling relied so heavily on the interpretation of the statute that the General Assembly may introduce legislation to overrule this decision if it so chooses.

Any questions regarding this case can be addressed to Michael S. Bliley, Esquire, at mbliley@tthlaw.com or (571) 464-0435.