Navigation Work Comp and the Traveling Employee
(Transcript)
Cindy Speaker: Good afternoon and welcome to our show today. My name is Cindy Speaker, I have with me as my guest, attorney Bill Kovalcik of Michael J O’Connor and Associates. Bill thanks for being with us today.
Bill Kovalcik: Cindy you’re welcome, great to be here. Always good to see you and discuss Worker’s Comp.
Cindy Speaker: I appreciate that, well we’re going to talk a little today about the traveling employee, which is interesting not something you would normally think about, but let me start off with the first question here. Can you explain in what locations and under what circumstances Pennsylvania residents are covered and under Worker’s Compensation?
Bill Kovalcik: Right, this is a really complicated question, and I can tell you there are reams of cases and statues on this, statutes, no statues, anyway. I’m going to hit the basics, and the first thing to know is the concept of jurisdiction. Jurisdiction is a concept in every area of the law, and certainly in Worker’s Comp. What jurisdiction means, is that a court and the state has the right to hear that case.
That’s true with Pennsylvania Worker’s Comp. Now Pennsylvania has jurisdiction in every Worker’s Comp., case where the injury happens in Pennsylvania. That means Pennsylvania residents who work in PA get hurt in PA, we have jurisdiction. Non-Pennsylvania residents who happen to be here in the course and scope of their employment and are hurt here, also have a case in Pennsylvania.
Now they may have a case back where they live too as well, depending on their own states laws, but they certainly have one here.
Cindy Speaker: That’s interesting.
Bill Kovalcik: Yeah, there are multiple states sometimes that could hear a case, more than one. Now that’s an easy concept, and a lot of the times we see out of state employees get hurt here is in the trucking industry for one, they’re passing through coming up route 81, and there’s an accident. With the onset of fracking in Pennsylvania, we’ve seen a lot of people who were just here temporarily.
They’re from Oklahoma or Texas, and they’re just here to do a job, they get hurt, they go back to their house in San Antonio, and we’re representing them here in Pennsylvania. That’s a common thing that we see, but it gets way more complicated than that and here’s why, because it’s easy if the injury happened here to know that you have jurisdiction here, but what if didn’t happen here, okay?
What if it happened somewhere else? Now that’s what we call the extraterritorial provisions of the Pennsylvania Worker’s Compensation act. Now to have extraterritorial provisions you have to meet the requirements of the law, and what that means is if you don’t get hurt in Pennsylvania, you might still be covered, it just depends on the circumstances.
The provisions are basically this of the law, that the employment is number one, it could be principally localized in Pennsylvania. You work in Pennsylvania, now I like to use myself as an example. Say for instance, my work is here in Pennsylvania, it’s localized here, the offices we have are here, the cases I represent people in are all here, but occasionally we go out of state.
What if I go to New Jersey for a deposition? What if I go to California for a conference? I was in LA two years ago to speak at a conference, that is work, but I’m not in Pennsylvania. What if I fell down a flight of stairs in that conference center? As long as I was sober I’d be covered. Of course there are times when someone is out of the office, and they’re straying from their job, they’re not covered.
For instance intoxication, etc., but my work is here, so I’m covered in California, or in New Jersey, or wherever I go, depending on what I’m doing at the time of course, I can’t stray too far from the purpose of why I’m there.
Cindy Speaker: Are you covered by Pennsylvania Worker’s Comp. Laws, or California if that happens?
Bill Kovalcik: In that case again, there’s concurrent jurisdiction.
Cindy Speaker: Okay.
Bill Kovalcik: I could make a claim under California law if I wanted, but I’m going to come back to PA and make the claim here, more convenient, whatever, but that would be an example of concurrent jurisdiction.
Cindy Speaker: Okay.
Bill Kovalcik: What about if you have a job that is not principally localized in Pennsylvania? A lot of people have that, and these people are what we generally consider traveling employees.
Cindy Speaker: Right.
Bill Kovalcik: If the traveling employee gets hurt outside the state, well then what? A lot of these people are truck drivers, some are sales reps. I had a client who went all over the country setting up Dollar Stores, he was in a different state every month.
Cindy Speaker: Wow.
Bill Kovalcik: If in fact you can prove that you had a contract of hire in the state of Pennsylvania, and that means you got hired here, that can be very tricky. It’s easy if your company is in Bloomsburg, and you go in and they interview you, and they hire you in Bloomsburg. You sign some paperwork, that’s a contract of hire in Pennsylvania. However, we get other things, and this is a lot of trucking companies.
Say the headquarters for the trucking company is in Houston, you find out about it on the Internet. You type in an application, someone calls you from Houston and says, “Well, we like your application, you seem to have the appropriate experience. We’d probably like to hire you, but you have to come down to Houston for a road test and a DOT physical and meet the guys or whatever.”
You’re really not hired yet, you get on a plane, you go to Houston, that’s a contract of hire made in Texas. When I try to decide whether there’s Pennsylvania jurisdiction, we have to go through these fact specific things.
Cindy Speaker: Wow.
Bill Kovalcik: Say for instance you get hired on the Internet without the need to go anywhere and do a test. Then I’m going to argue and there’s case law to support this, that is a contract of hire made in Pennsylvania. Say you’re going to work for a California company, you don’t have to go out there, you just get hired on the Internet. You got hired from your office in your home, that’s in Pennsylvania, so that could be Pennsylvania jurisdiction, if there’s a contract of hire in Pennsylvania for work that is not localized in any state.
That’s the traveling employee, so you get hired to be an over the road trucker, you hit 20 states a week. Every state you’re in, you’re covered by Pennsylvania law.
Cindy Speaker: Okay.
Bill Kovalcik: You may also be covered by Indiana law.
Cindy Speaker: Okay.
Bill Kovalcik: You certainly are by Pennsylvania. Now there are some exceptions and changes to this, and it’s based primarily on … One of the things that we see often in the trucking industry, is the trucking companies want to control their Worker’s Comp., so they want it all to be in the state where they are. When you come to work for them they make you sign something that says every injury will be decided under the laws of Illinois.
Cindy Speaker: Okay.
Bill Kovalcik: Well, that is not enforceable in Illinois.
Cindy Speaker: Okay.
Bill Kovalcik: Often people will come to me after their claim has already been accepted in Illinois, and they’re getting benefits. They come to me and I say, “Well in Illinois you only get paid half as much as in Pennsylvania, and in Illinois they can stop your Comp., after six months without any notice.” Pennsylvania law is much better, there’s jurisdiction here, because you got hurt here.
It didn’t have to be in Illinois, they just want to control it, so then they file in Pennsylvania. The claim gets accepted, and that’s now takes over as the claim. That often happens in the trucking and other traveling employee instances.
Cindy Speaker: Let me understand that Bill, so only one state has jurisdiction, so in the scenario you mentioned you’re talking about Illinois and Pennsylvania, if the jurisdiction gets changed to Pennsylvania, so that the employee’s covered in Pennsylvania, then that Illinois claim goes away?
Bill Kovalcik: Right.
Cindy Speaker: Okay.
Bill Kovalcik: Most states you can’t get benefits from both at the same time. One at a time, that’s why people will come to me, and sometimes it’s confusing. They’ll say, “Well, I live in them Philadelphia, and I got hurt in Vermont, but my case has been accepted in West Virginia.” I know exactly what’s happening, they don’t, but I’ll say, “There’s a contract somewhere that you signed when you got hired saying all Worker’s Comp., cases will be processed through West Virginia, that doesn’t necessarily benefit you, so we’ll fix that.”
Cindy Speaker: How about that. Okay, so you know what it reminds me of? It reminds me of these arbitration clauses that we sign unknowingly and limit our rights.
Bill Kovalcik: Arbitration clauses are very common in other areas of law where you end up not even having access to the court.
Cindy Speaker: Yeah.
Bill Kovalcik: Yeah, they’re trying to control everything, but thankfully Pennsylvania law will determine that, that agreement is not binding on you. If you have all the other requirements of a Pennsylvania case, you can file it.
Cindy Speaker: Okay.
Bill Kovalcik: We’ve done that many times, so that’s basically extraterritorial jurisdiction. Keep in mind that, and I’ll touch on this later, but when we’re talking about you got hired in Pennsylvania for a job that is not localized in any one state, that includes overseas. We’ll talk about that later, but there’s another aspect, because there’s a lot of people who travel for their employment.
Cindy Speaker: Yes.
Bill Kovalcik: This isn’t necessarily a jurisdictional thing.
Cindy Speaker: The traveling employee is covered here?
Bill Kovalcik: Yeah, is the traveling employee covered? There’s a couple of aspects to this, because whether you’re inside of Pennsylvania, or outside of Pennsylvania, the question is at the time you are injured, are you in the course and scope of your employment? You have to be in the course and scope of your employment when you get hurt.
You can’t be at home thinking about going to work, in other words there are exceptions to that. Say you’re not at the workplace, but you’re doing something that is, “In furtherance of the employer’s interest.” There have been cases like this where someone’s up all night working on a report, and they fall down the steps while they’re carrying it, and they’re found to be in the course and scope of their employment, even though they’re in their basement.
There is a famous case where a police officer shot himself accidentally while cleaning his gun at home. That was in furtherance of his employment, he needs a clean gun. Right, so anyway, so the question of whether people who are traveling are covered, is one that we as attorneys would refer to as fact specific. That’s why there are so many cases to determine whether or not you are in the course and scope of your employment.
The facts are all different, some of them are bizarre. The things that people get into, so anyway there’s a couple principles that … We’ll start in 1977 with a case against U.S. Steele. It was determined that an employee, whether they’re on the premises or off the premises of the employment, but they’re actually engaged in the furtherance of the employer’s business, or they’re on the premises and they’re hurt by a condition of the premises, even though they may not be actively working, they’re covered.
This creates two different cases, where someone is off the premises, but they’re doing something in furtherance of the business.
Cindy Speaker: Okay.
Bill Kovalcik: Slip and fall cases, we get a lot of that. You’re done working, you’re going to your car, you slip and fall.
Cindy Speaker: Yeah.
Bill Kovalcik: You’re not really at work, but you’re on the premises and then the ice caused you to slip, so that’s also an accepted, or should be an accepted Worker’s Comp., case.
Cindy Speaker: Let me ask you about that if I could just, so you’re finished, you’re on the premises, you slip, would that be strictly Work Comp., or would it be a third party …
Bill Kovalcik: No, that is a good question, and the answer is it depends. Here’s why, third-party of course refers to cases where you can receive Worker’s Comp., and also sue someone who’s not your employer. In that case, there’s a possibility of both depending on the circumstances.
Say for instance your employer’s premises is on a leased plot of land, and the owner is XYZ Real Estate Corporation who’s responsible for cleaning the snow and ice. You’re still on the premises, because it’s within the lease, but this real estate company has undertaken legally the duty to clean those sidewalks and didn’t do it.
Cindy Speaker: Okay.
Bill Kovalcik: They’re liable potentially in a third part. We also get, and I remember having this case. A guy walking to his car, someone driving by in another car hits him. He’s got both a case against the driver and a Worker’s Comp. Case.
Cindy Speaker: Wow, all this as we get into this, you really need to have an attorney. There’s no way the average person could sort these things out.
Bill Kovalcik: That’s correct, and when I think about it, and when I get into it and I start reviewing these cases, I realize how complicated they are. Most of these cases only got finally accepted for the injured worker once all this testimony was put on. That’s of course one of the attorney’s jobs is to determine what the testimony needs to be, who needs to testify, what facts need to be, etc.
You’re right, that’s absolutely true. I was reviewing some cases, and they seem to be very interesting, so like cases where it was found that you were in furtherance of the business of the employer or not. I’m going to give you some examples. There was a case, and these were all cases that were found to be Worker’s Comp.
An employee is bitten by a dog, the dog is owned by a coworker, but the employee was outside smoking. That was found to be Worker’s Comp., of course that’s not clear. It’s not clear.
Cindy Speaker: Right.
Bill Kovalcik: What you’ll see that one of the threads going through these cases is momentary breaks from your regular day, or momentary diversions from serving the employer’s interest don’t take you out of the scope of employment.
Cindy Speaker: Okay.
Bill Kovalcik: A stationary employee was injured, when I say stationary, I mean non traveling in that case, but he was out at a salad bar and slipped and fell on some lettuce. However, it was found to be Worker’s Comp., because at that luncheon were clients. It was a working lunch, but that was in furtherance …
You get a lot, and for traveling employees you get a lot of this too. You’re a salesperson and you got a team, so you leave Harrisburg and you decide you’re going to go down to Baltimore and stay in a hotel, and then the next morning you’re going to meet clients. Well, what if you go to dinner and you have a few beers, and you and the guys get in the car and you pull out in front of someone, it’s not your fault, but there’s an accident, is that Work Comp.?
The general answer is yes. There’s a case that said that a motor vehicle accident after stopping for dinner while traveling from one site to another to drop off a coworker is in furtherance. You’re still at work, it’s covered, so momentary departures. You also get … Like there was a case where someone was injured traveling, but was in a bathroom.
That doesn’t necessarily, it wasn’t in furtherance of whatever business, but everybody has to use the bathroom, so that momentary departure doesn’t make you not at work.
Cindy Speaker: Yeah.
Bill Kovalcik: You get hurt in the bathroom at some rest stop, it still might be Comp. Don’t foreclose that idea, and again there was a case where someone worked and also had another office in his house. He fell down the steps trying to get to the bathroom. Well, it’s within the course and scope of his employment. Now this one case I find really interesting. I’d have to look into this in a little more detail.
An employee was being arrested for stealing from his employer, and he was injured by the police. That’s a work injury, okay?
Cindy Speaker: Wow.
Bill Kovalcik: That’s an interesting case.
Cindy Speaker: That’s quite a stretch.
Bill Kovalcik: I know.
Cindy Speaker: Overall are the Work Comp., laws in Pennsylvania pretty good as compared to other states?
Bill Kovalcik: Right, we’ll get into later some of the new developments trying to take away from that. Generally when we talk about Pennsylvania as compared to other states, and even lawyers in other states, will say to us that our law is superior, more protective. There are states that basically don’t have Worker’s Comp., anymore.
Cindy Speaker: Wow.
Bill Kovalcik: Here’s the grand bargain, you can’t sue your employer.
Cindy Speaker: Right.
Bill Kovalcik: You get the Worker’s Comp., protection, so if you take that Worker’s Comp., protection away, you can sue your employer for negligence.
Cindy Speaker: I see.
Bill Kovalcik: That’s much harder, because a person gets hurt in Pennsylvania, in three weeks they have a check in their hand. If you have to sue your employer, it could to be two years.
Cindy Speaker: Right.
Bill Kovalcik: That’s a whole other discussion.
Cindy Speaker: Interesting, yeah.
Bill Kovalcik: Right, right.
Cindy Speaker: What is this going and coming rule that I’ve heard about?
Bill Kovalcik: The going and coming rule also applies to whether you’re in furtherance of the business, or whether you’re a traveling employee. Going and coming refers to going to work and coming home from work. Now, generally for most of us who have a fixed place of work, once you leave and you get in your car and you’re gone, you’re no longer at work, you’re no longer covered by Worker’s Comp.
However, there are exceptions to that. Now one of the exceptions is you’re a traveling employee, okay? You have no real fixed place of work, and there’s a lot of people like this, most of them are truckers, okay? You have a contract with your employer, which includes transportation to and from work. In other words a lot of these people have a company car.
If you have a company car, when you get in it and you leave your driveway, you’re at work. If you have an accident 200 feet from your house, you’re covered, that’s different than most people, that’s an exception to the coming and going rule. The other exceptions include you on a special assignment for the employer, you’re doing something in furtherance of their business.
Morning comes, the boss calls you at home says, “Can you go by the bank and pick up 200 rolls of pennies, we need them for this weekend.” “Sure,” so as soon as you head to the bank you’re at work, even though technically it’s the going and coming rule, you’re not yet at work, but you’re furthering your employers business.
Cindy Speaker: Yeah, okay.
Bill Kovalcik: Say you weren’t instructed, you didn’t give an assignment, but you thought it would be a good idea to go by a coworker’s house to see if he was coming in today, and whether he had those tools that you need. You’re doing something in furtherance of your employment, even though you weren’t asked to do it. You could still be considered at work if there’s an accident of some type.
Cindy Speaker: Interesting, now what about if someone is injured in a foreign country? How does that …
Bill Kovalcik: The extraterritorial provisions of the Worker’s Comp. Act that we discussed before were, first of all there’s a contract of hire in Pennsylvania, and for work that’s either principally localized in Pennsylvania. Like we discussed before, people like me who work in Pennsylvania, as soon as I go to New Jersey, I’m still covered, okay?
Cindy Speaker: Yeah.
Bill Kovalcik: If the employment is not localized in any state, or is for employment overseas, they are still … When I say overseas, I mean Canada and anywhere else in the world.
Cindy Speaker: Right.
Bill Kovalcik: Anywhere outside the United States, if you make the contract of hire.
Cindy Speaker: Okay.
Bill Kovalcik: Now, this becomes really complicated and here’s why. That’s a general statement, and we don’t see a lot of these cases. The reason we don’t see a lot of them, is because there are other remedies. Say you work for a defense contractor, and it’s in Pennsylvania. You get hired to be an engineer, and they send you to Afghanistan.
You get hurt in an accident over there, technically you don’t have Pennsylvania jurisdiction, but there are other acts, and ones that we don’t really deal with all that often to protect you. There’s an act that covers defense contractors when they’re on military bases. A lot of military bases these days overseas or wherever are filled with private individuals.
A lot of the things the military used to do they now contract out.
Cindy Speaker: I see.
Bill Kovalcik: Even during the Iraq war the bases were full of military contractors from Pizza Hut and Burger King, Subway, that would set up pop-up restaurants for the troops.
Cindy Speaker: Oh yeah, right.
Bill Kovalcik: These military bases are full of civilians, so technically if they made a contract of hire in Pennsylvania, they could have Pennsylvania jurisdiction, but they may have other coverage. That’s true with people who were in the military as well.
Cindy Speaker: Yeah.
Bill Kovalcik: One of the other things you get is civilian people who were on ships, or who were not in the United States anymore, they’re on the high seas or whatever. There are laws to protect them, technically if they made a contract of hire in Philadelphia, and got on a ship and was headed to Africa, they would have coverage. There’s things like the Jones Act. The Jones Act protects people at sea, everybody if you get hurt.
The Longshoremen’s Act protects people basically closer to shore, but they could also be on the water. There’s protection, and those benefits are generally better, we don’t see them that often in the Comp., arena, but there is that jurisdiction. There’s another thing I came across and I thought was really interesting. It’s a Pennsylvania law that affects only Pennsylvania National Guardsmen.
There’s a whole separate set of compensation if you get hurt in the Pennsylvania National Guard. It’s just like Comp., but if you get hurt or killed, they have their own schedule of benefits.
Cindy Speaker: No, that’s okay, when that happens are they covered, do they get coverage under both situations, the National Guardsmen and Work Comp., or is it one or the other?
Bill Kovalcik: It’s considered exclusive, so they get only what … It’s called the military code of Pennsylvania, it’s under that. That’s all they’re entitled to, and I found that very interesting. I was reading it, and one of the exceptions to that coverage, is if they get hurt in service of the United States.
As you’ve seen before when there’s war or police action, they often call up the National Guard. The National Guard then … There were a lot of them in Iraq. If they get hurt during that conflict, they’re not covered under this law.
Cindy Speaker: Okay.
Bill Kovalcik: They’re covered of course under other federal laws, that’s why … We talked about this before about how anyone who is injured by an act of war is not covered under the Pennsylvania Worker’s Comp.
Cindy Speaker: Right. Great information, well Bill let me ask you this before we go, how about anything new going on in the law relative to Worker’s Compensation in Pennsylvania.
Bill Kovalcik: Well there is, and for a number of months now there’ve been several bills pending in the Pennsylvania General Assembly. One of the bills is called evidence-based medicine, that’s the subject. It replies to Worker’s Comp., cases. I’ve discussed this before, but just as a refresher, it is evidence-based medicine creates a formula.
That formula has to be used when someone is given a prescription. The doctors who treat injured workers must go by a formula now. They can only prescribe certain things in certain amounts for certain conditions. If they don’t do that, it’s not going to be paid by the Work Comp., carrier.
Cindy Speaker: Oh, wow.
Bill Kovalcik: Very contentious, and it recently passed by one or two votes. As I’m told, it’s currently on the Governor’s desk. I asked someone, “Was he going to sign it?” It’s not clear whether he is or not. One of the things that came out recently about this, and there was a debate about it, is because like a lot of politics some of these things are pushed quickly for financial interest.
Behind all this are companies, there’s always a company that can benefit from a government action, this is no exception. There’s two companies basically in the country that are involved with evidence-based medicine. If a state passes it, they have to hire one of these two companies to set up the system.
Cindy Speaker: Okay.
Bill Kovalcik: Create the formula, and update it, and service it. I guess it becomes a long-term government contract.
Cindy Speaker: Yeah.
Bill Kovalcik: Unfortunately one of these companies is owned by an insurance company, so talk about a conflict of interest.
Cindy Speaker: Right.
Bill Kovalcik: Insurance companies are going to create a formula whereby it is determined how much insurance companies have to pay.
Cindy Speaker: Oh my word.
Bill Kovalcik: That’s problematic.
Cindy Speaker: Yes.
Bill Kovalcik: It’s sitting on the Governor’s desk. What’s going to happen with that? We don’t know.
Cindy Speaker: Interesting.
Bill Kovalcik: The other thing about … I’m going to go to a seminar on this soon about medical marijuana in Pennsylvania, because this evidence-based medicine, I don’t know if it will even include that. That there will be somewhere on a schedule that you can give people medical marijuana for pain., I don’t know. Of course medical marijuana is now legal in Pennsylvania, and doctors can generally prescribe certain forms of it for certain conditions.
How will that change? I don’t know, because this whole idea of medical marijuana is a developing area for attorneys, and there are a lot of seminars to discuss.
Cindy Speaker: Okay, yeah, that’s interesting.
Bill Kovalcik: Yeah.
Cindy Speaker: Well Bill, listen, if somebody has questions specifically about Worker’s Compensation issues, how can they reach you at your office?
Bill Kovalcik: Right, we have an 800 number, and you can call that from anywhere in the state. It’s 1-800-518-4529, so that’s 1-800-518-4LAW. You’ll speak to someone, and you tell them your problem, and they’ll take the information and then you’ll get to speak to an attorney.
Cindy Speaker: Okay, and then we have I believe OConnorLaw.com.
Bill Kovalcik: Right, you can see us on the web at OConnorLaw.com. There’s a lot of information on there, some videos, some things to read, attorney profiles.
Cindy Speaker: Great, great, well Bill thanks for your time today, this is great information.
Bill Kovalcik: You’re welcome, good to see you, and take care.
Cindy Speaker: You too. To those of you that are watching, if you have questions or comments you can leave them right on this page. We’ll get back to you, answer your questions, and we appreciate you tuning in today. Thanks everybody, have a great day.
