          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brenda M. Reichert,                       :
                          Petitioner      :
                                          :
                   v.                     :   No. 2080 C.D. 2014
                                          :   SUBMITTED: May 22, 2015
Workers’ Compensation Appeal              :
Board (Foxdale Village),                  :
                         Respondent       :



BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                              FILED: September 10, 2015


             Brenda M. Reichert (Claimant) petitions this court for review of the
order of the Workers’ Compensation Appeal Board (Board) affirming the decision
of the Workers’ Compensation Judge (WCJ) denying Claimant’s claim petition.
For the reasons that follow, we affirm.
             Claimant filed her petition on September 19, 2012, alleging that on
February 17, 2012, she sustained a work-related injury in the nature of a thoracic
strain and aggravation of a pre-existing degenerative condition and thoracic spine
while in the course and scope of her employment with Foxdale Village
(Employer). Employer filed a timely answer denying Claimant’s allegations and
asserting that, “Claimant was not working for us on February 17, 2012.”
Defendant’s Answer to Claim Petition, Reproduced Record (R.R.) at 8a.
             Before the WCJ, Claimant testified that she had been working for
nearly seventeen years for Employer as a certified nurse’s assistant (CNA), until
her family physician, Dr. Jeffrey H. Baker, took her out of work in August 2011,
for back pain unrelated to any work injury. Claimant testified that Dr. Baker
referred her to a back specialist, Dr. Evans, for further treatment. In January 2012,
Claimant felt that she was able to return to work and informed Dr. Evans at her
appointment on January 9, 2012. Dr. Evans recommended that Claimant see Dr.
Baker for a release to return to work. Claimant contacted Employer’s then-Human
Resource Director, Kurt Sayers, and informed him that she would be able to return
to work “part time and light duty” following her appointment with Dr. Baker
scheduled for January 20, 2012.            Hearing of November 9, 2012, Notes of
Testimony (N.T.), at 11. Claimant testified that Mr. Sayers then gave her a letter
for Dr. Baker, which she took with her to her appointment.1 Claimant stated that

   1
    Mr. Sayers’ letter of January 19, 2012, states in part:
               [Y]ou have been out on medical leave since August 2011. Recently,
          you indicated you (sic) that you may be able to return to work soon,
          although you were not sure if you could return to your full-time position.
          Please provide me with an update as soon as possible with regard to a
          definitive return to work date. If you would like to return on a limited
          basis, please provide us with your proposals and we will review against
          our needs to determine whether a part-time schedule can be arranged.
               We also write because, when you are able to return, you must have
          your doctor provide a fitness for duty certification. We enclose a copy of
          your job description. Please ensure your doctor’s certification addresses
          whether you are able to perform the essential functions of your job,
          including meeting the physical requirements of the position, and whether
          you can work without posing a direct threat to yourself or others,
          including our residents.
   Hearing of November 9, 2012, Claimant’s Exhibit C-3.



                                              2
Dr. Baker contacted Employer for clarification of the letter, after which he
recommended that Claimant complete a functional capacity evaluation (FCE).
Claimant testified she informed Employer that same day and was told by Mr.
Sayers that Employer would pay for the test. Claimant completed the FCE on
February 17, 2012, and testified that she “was in so much pain at the end of the
test” that she “could hardly move that whole weekend.”         Id. N.T. at 18, 27.
Claimant rated her level of pain as a “ten” when she first went off work in August,
down to a “two or three” by January when she spoke with Employer about
returning to work, and then up to a “[t]en plus” after undergoing the FCE. Id. at
17. Claimant testified that after she took the FCE, she did not feel that she could
return to work even on a limited basis.
             Dr. Jeffrey H. Baker testified by deposition that he had been treating
Claimant “since the middle of 2011 for a musculoskeletal problem on the right side
of her chest, or thorax area.” Deposition of Dr. Baker, January 29, 2013, at 9. Dr.
Baker testified that when Claimant came in for an appointment in January 2012,
she had a letter from Employer stating that in order for Claimant to return to work,
Dr. Baker would need to provide a fitness for duty certification, and enclosed her
job description. Dr. Baker testified that because she had been out of work for so
long, he did not “feel comfortable” certifying Claimant’s return to work without
referring her for an FCE. Id. at 11. After receiving the results of Claimant’s FCE,
Dr. Baker testified that, “[a]t that time, 28 of March [2012], I felt because the
functional capacity test said she could tolerate work that I thought she should be
able to go back.” Id. at 15.




                                          3
               The WCJ determined that Moberg v. Workers’ Compensation Appeal
Board (Twining Village), 995 A.2d 385 (Pa. Cmwlth. 2010),2 was controlling, and
concluded that “having a functional capacity evaluation as a pre-condition of return
to work following a period of non-work-related disability is not in the course and
scope of employment under the Act,” and thus, dismissed Claimant’s claim
petition. WCJ’s Decision, July 15, 2013, at 2. Claimant appealed the WCJ’s
decision to the Board, which affirmed. The Board agreed with the WCJ and
concluded that Moberg indeed controlled, and that it “stands for the proposition
that merely satisfying the prerequisites of working for the employer, does not place
a claimant in the course and scope of employment.” Board’s Opinion, November
4, 2014, at 3. The Board further concluded that Claimant “could not establish she
sustained her injury while ‘actually engaged in the furtherance of the business or
affairs’ of [Employer].” Id. at 3.



    2
       In Moberg, claimant filed a claim petition alleging she sustained an injury in the course
and scope of her employment with employer. Claimant asserted that as a condition of
employment, she was required to undergo a tuberculin test. After undergoing the test, she had an
adverse reaction, fainted and struck her head. At the ensuing hearing before the WCJ,
employer’s witness testified that employer only sent people for the test that it considered
successful applicants it intended to hire and while it ultimately did hire claimant, she explained
that an applicant had to complete the two-step tuberculin test in order to be considered hired.
Claimant testified that prior to the day of the test, she was told that she was hired but that she had
to undergo the test before she could start working and that she believed she also signed an
employment agreement with employer. The WCJ, affirmed by the Board, concluded that
claimant had not established that there was an employer/employee relationship at the time she
sustained her injury, finding that claimant was still going through the hiring process. On appeal
to this court, we concluded that the evidence credited by the WCJ supported the finding that
claimant was not an employee but rather an applicant going through the application process. The
fact that claimant was eventually hired by employer was not dispositive because she may not
have been hired had she failed any of employer’s other requirements for employment, which we
explained were not just mere formalities but pre-requisites to hire.



                                                  4
               On appeal to this court, Claimant contends that the Board erred in
finding that she was not in the course and scope of her employment 3 at the time of
her injury. Claimant asserts that Moberg is distinguishable and thus does not
control the outcome of this case.
               In a claim petition, the burden of proving all of the necessary elements
to support an award rests with the claimant. Inglis House v. Workmen’s Comp.
Appeal Bd. (Reedy), 634 A.2d 592 (Pa. 1993). The claimant must prove that her
injury was sustained during the course and scope of her employment and is
causally related thereto. U.S. Airways v. Workers’ Comp. Appeal Bd. (Dixon), 764
A.2d 635, 640 (Pa. Cmwlth. 2000). Furthermore, a claimant must prove that an
employer/employee relationship exists in order to be entitled to benefits under the
Workers’ Compensation Act4 (“Act”). Universal Am-Can, Ltd. v. Workers’ Comp.
Appeal Bd. (Minteer), 762 A.2d 328, 330 (Pa. 2000).                               Whether an
employer/employee relationship exists is a question of law over which we have
plenary review. Id. at 331.
               Claimant avers that while Moberg may stand for the proposition that
merely satisfying the prerequisites of working for an employer does not place a
claimant in the course and scope of employment, both the WCJ and the Board
failed to note a critical distinction in her case. Specifically, Claimant argues that
unlike the claimant in Moberg who was an applicant for employment at the time of
her injury, she (Claimant) was an employee, albeit, an employee who was out on


    3
       Pursuant to Section 301(c) of the Workers’ Compensation Act (“Act”), Act of June 2,
1915, P.L. 736, as amended, 77 P.S. § 411(1), the “term ‘injury’ and ‘personal injury,’ as used in
this act, shall be construed to mean an injury to an employe, regardless of his previous physical
condition . . . arising in the course of his employment and related thereto . . .”
     4
       Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 – 1041.4, 2501-2708.



                                                5
long-term medical disability at the time of the alleged work-related injury, who
was “simply following [Employer’s] instructions to return to employment by
having a mandated physical evaluation (FCE).” Claimant’s Brief at 9. Claimant
asserts that her situation is more analogous to the facts in Taylor v. Ewing, 70 A.2d
456 (Pa. Super. 1950), in which the employer therein directed his employee to go
to his home and mow his lawn and while mowing the lawn, the employee was
injured. Although grass cutting was not part of his regular duties at the car
dealership, the court reasoned that “[i]f it had not been for claimant’s employment
in [employer’s] business, he would not have been in the place where he was
injured, at which time he was working under the direction and control of
[employer] and in consequence of the relationship of employer and employe.” Id.
at 457. Likewise, Claimant asserts that she only participated in the activity which
injured her (the FCE) “because the employer required that her physician complete
a Fitness for Duties Certification and Dr. Baker felt that he could not do so without
an FCE.” Claimant’s Brief at 14. Thus, she continues, “’but for’ her job with
[Employer] she would not have been in a position to participate in the FCE.” Id.
(Emphasis omitted). Claimant argues therefore, that having established that she
was injured during the course and scope of her employment, she is entitled to
workers’ compensation benefits. We disagree.
             Section 301(c)(1) of the Act, states in pertinent part:

             The term “injury arising in the course of his
             employment,” as used in this article, . . . shall include all
             . . . injuries sustained while the employe is actually
             engaged in the furtherance of the business or affairs of
             the employer, whether on the employer’s premises or
             elsewhere, and shall include all injuries caused by the
             condition of the premises . . . sustained by the employe,
             who, though not so engaged, is injured upon the premises


                                          6
              occupied by or under the control of the employer, . . . the
              employe’s presence thereon being required by the nature
              of his employment.

77 P.S. § 411(1). Here, there is no dispute that Claimant was neither injured on
Employer’s premises nor on premises occupied by it or controlled by it. Nor does
Claimant appear to argue that she was actually engaged in Employer’s business
when she participated in the FCE. 5 Rather, it appears that Claimant is arguing that
in order to determine whether she was in the course of employment, the proper
question is whether Employer ordered or directed the conduct involved. Taylor, 70
A.2d 456, 457 (Pa. Super. 1950) [relying on Krchmar v. Oakland Beach Company,
38 A.2d 710, 712 (Pa. Super. 1944)]. In other words, even though she was not
injured on Employer’s premises and she was not furthering Employer’s business,
because “[Employer] mandated the FCE for her to return to work” and she was
injured while participating in the FCE, she was in the “course of employment” and
thus entitled to an award of benefits. Claimant’s Brief at 13.
              Here, while both the WCJ and the Board recognized that an
employment relationship existed prior to the commencement of Claimant’s non-
work-related disability, case law also makes clear that “an employment
relationship must be maintained by the parties.” Moberg, 995 A.2d 385, 390
(citation omitted). For example, in Hepp v. Workmen’s Compensation Appeal
Board (B.P. Oil Company), 447 A.2d 337, 339 (Pa. Cmwlth. 1982) (emphasis


    5
      An employee not engaged in the furtherance of the business or affairs of the employer
must satisfy three conditions under the Act in order for her injury to be in the course of
employment: 1) the injury occurred on employer’s premises, 2) the employee’s presence thereon
was required by the nature of her employment, and 3) the injury was caused by the condition of
the premises or by the operation of the employer’s business thereon. Dana Corp. v. Workmen’s
Comp. Appeal Bd. (Gearhart), 548 A.2d 669, 670 (Pa. Cmwlth. 1988) (emphasis added).



                                              7
omitted), we determined that claimant was not injured while furthering his
employer’s business and was not acting in the course and scope of his employment
because he was injured “following receipt of notice that he was no longer
employed . . . .” Then, in Little v. Workers’ Compensation Appeal Board (B&L
Ford/Chevrolet), 23 A.3d 637, 644-45 (Pa. Cmwlth. 2011), we held that an injury
that “relates to a final act that is only work-related insofar as the event alters the
employment relationship (such as the termination in this case), . . . does not arise in
the course of employment.”         Moreover, just as the furloughed employee’s
employment relationship is held in abeyance due to the employer’s lack of funds or
work, Kelly v. Workers’ Compensation Appeal Board (US Airways Group, Inc.),
992 A.2d 845, 853 (Pa. 2010), the employer-employee relationship between a
claimant out on non-work related long term disability and his or her employer is
held in abeyance due to his or her non-work related long-term disability. However,
whether a claimant out on non-work disability maintains an employment
relationship into the future depends, in certain cases such as this one, on whether
the claimant can successfully satisfy Employer’s requirements for return to
employment.
             In the matter sub judice, Claimant, who had been out on non-work
related long-term disability for a prolonged period of time, may have indicated her
desire to return to work, but it was not a foregone conclusion that Employer would
be able to provide her with employment, either in her former position or in an
alternative position if there are restrictions which may attach due to the medical
condition for which she was absent from work. In such a case, as with new
applicants, the employer may require the individual to fulfill certain requirements
before becoming employed and returning to work, such as obtaining a fitness for



                                          8
duty certification, as did Employer herein, and while these requirements are
managerial decisions over which the individual has no control, we do not believe
that fulfilling those requirements as a pre-condition of renewed employment places
the Claimant in the course and scope of employment. Requiring a claimant who
has been out of work on medical leave for a significant period of time to obtain a
fitness for duty certification before returning to work is not the same as an
employer directing his employee to go to employer’s home and mow his lawn, as
occurred in Taylor. Significantly, Claimant did not have to take the FCE if she did
not wish to return to work. Indeed, as Employer points out, it required only that
she obtain a fitness for duty certification from her primary care physician and that
it was her doctor who ordered the FCE because he was uncomfortable certifying
her without one. This does not mean that Employer either directed or mandated
Claimant’s participation in the FCE, but only that it did have certain prerequisites
for employment that Claimant needed to complete in order to return to work.
Moreover, the fact that Claimant was an employee prior to commencing her non-
work long term disability is not dispositive, because Claimant may not have
returned to employment if she was unable to complete any of Employer’s other
pre-requisites for employment.6 Hence, an injury that arises while participating in
a pre-requisite for employment is only work-related insofar as the event has the
potential to alter the employment relationship by allowing the Claimant to return to
employment, but it does not arise in the course of employment.


    6
      In Moberg, 995 A.2d 385, 390 (footnote omitted), we noted that claimant “may have ended
up not getting the job had she failed the tuberculin test, the drug test, or unsuccessfully
completed any of Employer’s other requirements for employment.” See also, Employer’s
January 19, 2012 Letter to Claimant from its then-Human Resource Director, Kurt Sayers,
outlining those requirements. Claimant’s Exhibit C-3, n. 1, infra.



                                             9
Accordingly, we affirm the order of the Board.



                         _____________________________________
                         BONNIE BRIGANCE LEADBETTER,
                         Judge




                           10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brenda M. Reichert,                     :
                       Petitioner       :
                                        :
                 v.                     :     No. 2080 C.D. 2014
                                        :
Workers’ Compensation Appeal            :
Board (Foxdale Village),                :
                         Respondent     :


                                    ORDER


           AND NOW, this 10th day of September, 2015, the order of the
Workers’ Compensation Appeal Board in the above-captioned matter is hereby
AFFIRMED.



                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
