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What's Hot in Workers' Comp

Injuries sustained by claimant in a motor vehicle accident that occurred on the drive home from work were compensable through the employment contract exception to the “going and coming rule.”

John Bark v. Sooner Steel LLC (WCAB); 540 C.D. 2021; filed March 21, 2022; by Judge Ceisler

May 1, 2022

by Francis X. Wickersham

In this case, the claimant had worked for four years as a seasonal laborer for the employer, installing rebar for in-ground swimming pools. The employer was the sole owner of the business. In March of 2018, while returning home from the employer’s job site in Rio Grande, New Jersey, the claimant sustained injuries in a motor vehicle accident. Later, the claimant filed a claim petition, and the employer denied the allegations raised in the petition. 

At the Workers’ Compensation Judge level, the parties entered into a Stipulation wherein they agreed to the nature of the injuries sustained by the claimant and agreed that, if it was found the claimant was in the course and scope of his employment at the time of the accident, the injuries would be compensable and the claimant would be entitled to payment of benefits.

According to the claimant’s testimony, he was picked up from his house in Pennsylvania by the owner’s son and then driven to the job site in New Jersey in one of the employer’s trucks. After work, they drove back to Pennsylvania in the employer’s truck. The claimant said they were stopped by a police officer on the Atlantic City Expressway and cited for having an obstructed rearview mirror. A very short time thereafter, the motor vehicle accident occurred, and the claimant woke up in the hospital. The claimant said that he did not have a written employment contract with the employer. He further said that he did not personally drive an employer-owned vehicle and was not promised a ride to work. The claimant received a percentage of the amount for each job as his pay. 

The owner’s son testified that he drove to Pennsylvania to pick up the claimant at the owner’s direction because they needed additional help for the New Jersey job. He typically picked the claimant up at his home in one of the employer’s trucks and then drove to the employer’s work site. He did not drive anyone else to the employer’s job sites and did not operate the employer’s vehicles outside of work. The owner testified that the claimant’s pay for the work he performed at the New Jersey job site included additional pay for travel time and advised that employees were regularly paid for travel time, depending on the “zone” of the job site. Payment would not be made for travel to a job site in Zone 1. However, the New Jersey job was in Zone 4 or Zone 5. 

The Workers’ Compensation Judge dismissed the claim petition, finding the claimant had no contract, written or oral, promising him transportation to and from work. He further found the claimant had a fixed place of employment and did not find that the claimant was on a special assignment. He concluded the claimant was not in the course of employment at the time of the accident. The claimant appealed to the Workers’ Compensation Appeal Board, which affirmed. 

On appeal to the Commonwealth Court, the claimant argued that he was in the course of employment at the time of the accident because he had “an oral employment contract” that included transportation to and from job sites; he had no fixed place of employment; and he was on a special mission. The Commonwealth Court concurred, specifically with respect to the contract including transportation to and from work, and reversed the Board. Noting that an oral agreement could be considered when making the determination, the court said that to satisfy this exception to the “going and coming rule,” the claimant must prove that any travel allowance paid by the employer is related to the actual expense and time involved in the claimant’s commute and must prove that the employer provided or controlled the means of his commute. The court said that, although the claimant did not have a written employment contract, this was not a dispositive fact. The claimant was in an employer-owned vehicle at the time of the motor vehicle accident and the owner testified that employees received extra compensation for travel to any job located outside Zone 1. The zones were based on the distance in miles from the owner’s home. The testimony of the owner and his son established that the employer provided the means for the claimant’s commute when the owner directed his son to pick up the claimant at his home and drive him to the New Jersey job site in the employer’s truck.
 

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Firm Highlights

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.