Legal Corner

Workers' Compensation
Appellate court reverses self and finds public utility has workers' compensation immunity - Florida

In Tampa Electric Co. v. Gansner, the Second District Court of Appeal had held in October 2020 that the public utility company's obligation to maintain its facilities and equipment arose out of an administrative regulation and, therefore, was not the sort of obligation that could be "sublet" to a third party for purposes of the state's statutory employer statute. In a November 10, 2021 decision, it reversed itself and found that a state trial court had erred in determining that the public utility was not entitled to workers' compensation immunity.

Under Florida statutes, if a contractor sublets any part of its work to a subcontractor, all employees of the contractor and subcontractor are deemed to be employed in the same business. Tampa Electric had contracted with Zachry Industrial Inc to provide maintenance work at its Big Bend power station. When two workers sustained injuries, Zachry paid workers' compensation benefits. In the earlier case, Tampa Electric argued it was the statutory employer and protected by the exclusivity of workers' comp, but the trial court disagreed and the Second DCA affirmed.

Upon reexamination, the court noted that Tampa Electric would have immunity if it were a contractor that subcontracted work to Zachry. To be considered a contractor, Tampa's primary obligation in performing a job or providing a service had to arise out of a contract with a third party. The utility argued it has a contractual obligation to its customers to supply electricity and that obligation arises out of its tariff, which is a contract between the utility and its customers. The court found that the utility sublet to Zachry its implied obligation to maintain the equipment.

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State Supreme Court clarifies co-employee immunity statute - Missouri

In Brock v. Dunne, a worker suffered a serious injury to his thumb when a supervisor removed a safety guard from a laminating machine and directed the worker to clean the glue off the rollers because it was being applied too heavily. The worker used a rag that got caught and pulled the worker's thumb into the rollers, crushing it. A surgeon said the damage was permanent, would limit the use of his hand, and mean a lifelong restriction from heavy labor.

The worker received workers' comp benefits and filed a negligence claim against his supervisor, who died before trial. A jury returned a $1.05 million verdict in favor of the worker. Upon appeal, the court noted that the Workers' Compensation statute was amended in 2012 to provide workers with immunity from common-law negligence actions filed by coworkers for workplace accidents. It provides immunity to co-employees and employers except when the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.

The court found that for the exception to immunity to apply, the co-worker must act with the "conscience object" of increasing the risk of injury. Even though the safety guard was removed against the company's rules and the manufacturer's warnings, a divided court found it was not enough to demonstrate that the supervisor intended to increase the risk of injury.

Verizon worker to pay almost $20,000 in restitution for malingering - New York

A worker who suffered carpal tunnel and had two surgeries claimed she could only lift ten pounds and stopped going to the gym. However, video surveillance revealed that she was working out at the gym and lifting heavier weights. She agreed to plead guilty to a misdemeanor and pay $19,890 in restitution and was sentenced to a one-year conditional discharge.

Traveling employee doctrine adopted by high court - Pennsylvania

In Peters v. WCAB (Cintas Corp.), a uniform salesperson spent most of his time in the field. After his last call, he drove to the office for a happy hour with co-workers hosted by the employer. Following the event, he was in an auto accident on his way home. Lower courts denied his workers' comp claim, arguing he was not in the course and scope of employment when the accident occurred.

However, the Supreme Court disagreed and extended the Workers' Comp application of the "traveling employee" doctrine to include an employee's attendance at happy hours, holiday parties, and other social gatherings that are sponsored by the employer. Even if work was not discussed, the event benefited the employer by fostering relationships and improving morale.

The court noted that the employee was a "traveling employee" with no fixed place of employment but traveled throughout a sales territory, effectively eliminating the application of the "coming and going rule." There was conflicting testimony as to whether he was traveling from the party to his home when the accident occurred, therefore, the case was vacated and remanded. If he was driving from a non-work event, it would have constituted an abandonment of employment.

Employer's alleged interference with employee's right to sue third party for work-related injury nixes exclusive remedy - Pennsylvania

In Franczyk v. The Home Depot, Inc., the Superior Court found that a store employee could file a negligence lawsuit against an employer for the employer's alleged interference with the employee's right to sue a third-party tortfeasor for an injury occurring at work. The employee was attacked by a customer's dog and was diagnosed with cubital tunnel syndrome. Although the store had a policy prohibiting pets inside the store, it was not enforced.

The court concluded that the employer was estopped from claiming immunity under the Workers Compensation Act when the employer was responsible for the employee's inability to seek redress from the wrongdoer.