To those of you who were able to attend the KKAL Labor and Employment Law Seminar in April 2013, we offer a hearty “thank you”.  Since that time, there have been several noteworthy Workers’ Compensation cases, which we wanted to bring to your attention:

1.    Brewer v. WCAB (Commonwealth Court):

This case reaffirms the inability of an injured employee to obtain WC disability benefits, following termination for a positive post-accident drug test.  The employee was working as a packer, when he sustained low back injuries after being struck by a forklift.  The employee was sent to the WC panel physicians where he was treated and drug tested.  The drug test results were positive for marijuana and cocaine and the employee was terminated.  The employer filed a timely Notice of Compensation Denial, admitting the lumbar injury but denying any disability (i.e. Block 4 denial).

The testimony established that the employer had a “zero tolerance drug policy,” resulting in immediate discharge for a positive drug test.  The policy also provided for post-accident testing.  The policy was provided to all employees when hired and “but for” the positive testing, the injured employee in this case would have been given light duty work within his restrictions.

On appeal, the employee argued unsuccessfully, that a Notice of Ability to Return to Work should have been filed by the employer, in the context of an admitted injury. The Court held, however, that the burden was on the employee, in a family: Claim Petition, to establish the nature and extent of any alleged disability. The NOA form is only necessary in a subsequent suspension or modification scenario.

Claimant next alleged that the employer failed to offer medical evidence to substantiate the positive test, or the requisite “chain of custody” testimony to support the positive results.  Unfortunately for Claimant, he had previously confessed to the HR Director that he used drugs three days prior to the test, when confronted by telephone with the positive results.  This admission by Claimant, provided an exception to the evidentiary hearsay rule and supplied adequate corroboration of the drug test results.  We would caution employers, however, that absent an admission of illegal drug use by the employee, testimony from the “medical review officer” responsible for the drug testing program will usually be required.

2.    Fitchett v. WCAB (Commonwealth Court):

In this case, the WC Judge found that Claimant, an instructional aide for the School District of Philadelphia, had voluntarily withdrawn from the work force, thereby justifying a suspension of WC wage loss benefits.  The employee sustained low back and neck injuries as a result of a student attack.  Several years later the employer offered two IME physician opinions to establish a full recovery from the subject injuries.  In the alternative, the employer requested (and was ultimately granted) a suspension of benefits, based upon Claimant’s “voluntary withdrawal from the workforce”.

Although the WC Judge rejected employer’s full recovery medical evidence, he found as credible, testimony that Claimant had applied for and was receiving both pension benefits and social security retirement benefits and had not looked for any work since her injury in 2001.

The Judge rejected, as not credible, the employee’s statements that she retired because of her injuries and that she would not have sought pension and social security benefits, had she not been injured.

3.    Bowman v. Sunoco (Supreme Court):

The Supreme Court in Bowman held that an employer may require its employees, at the time of hire, to sign a waiver whereby the employee agrees not to sue customers of the employer, if they are injured on the customer’s premises.  This case may provide a competitive advantage to employers such as Temporary Service Agencies or Professional Employer Organizations (“POEs”) who provide personnel to various clients, or even to a food manufacturing plant that employs delivery drivers to get its products to specific customers.

Traditionally, such clients or customers of the employer may ask for a Service Agreement with indemnification language to protect them from lawsuits.  This case goes a step further and allows the employer to take the initiative to protect its clients or customers, by obtaining a lawsuit waiver from its employees.  The employee may still exercise his or her rights under the Workers’ Compensation Act, but would be constrained from dragging the employer’s customers or clients into Court on a negligence or premises liability theory.  The logic in Bowman should also extend to existing employees, who agree to sign a waiver in exchange for valid “consideration” even after the initial date of hire.

If you need help drafting such a waiver or reviewing a Service Agreement, please do not hesitate to contact us!

We hope you find this issue of KKAL’s Labor & Employment Law Watch helpful and informative.  Please understand that the Law Watch is designed to provide information about current developments and required actions and does not constitute legal advice.

If you have questions or concerns about any of these recent cases, or if we can be of assistance on similar cases you may be handling, please do not hesitate to contact Paul Clouser (717-392-4895) or Denise Elliot (717-392-5594), or email us at the following addresses:


Workers’ Compensation Law Group

(717) 392-1100

Paul D. Clouser                          

Denise E. Elliott                          

© 2013 Kegel Kelin Almy & Lord LLP.  All Right Reserved.

All Rights Reserved.  These materials may not be reproduced in any way without the written permission of Kegel Kelin Almy & Lord LLP.  This publication is designed to provide general information on the topics presented.  IF legal or other professional advice is required, the services of a professional should be sought.