While workers' compensation coverage is generally mandatory for most employers under the Pennsylvania Workers' Compensation Act, there are certain classes of employers who are exempted from providing workers' compensation insurance. One of these exemptions applies to domestic servants, such as nannies and in-home caregivers, where coverage is optional. In order for a person engaged in domestic services to receive benefits under the act, the employer must either purchase coverage or make an application with and be approved by the Department of Labor and Industry prior to an injury, to come within the provisions of the act. Also, as a general rule, whether or not work constitutes domestic service under the act is a question of law which must be decided on a case-by-case basis.

Last month the domestic service exception to the Workers' Compensation Act came before the Commonwealth Court in a reported decision, providing a perfect opportunity to revisit the issue. In Van Leer v. Workers' Compensation Appeal Board (Hudson), No. 1127 C.D. 2018, the issue was whether the claimant's duties as a caretaker for a woman suffering with dementia fell within the domestic service exception. In the course of taking care of the woman with dementia, the claimant sustained serious injuries to her face and head, among other body parts. In a claim petition which was bifurcated on the issue of the domestic service exception, the workers' compensation judge found that the claimant was, in fact, a “domestic servant” and was therefore, not covered by the Workers' Compensation Act. Consequently, the WCJ denied the claim petition. The board affirmed the WCJ's decision.

On appeal to the Commonwealth Court, the claimant argued that her duties as a caretaker do not fall within the domestic service exception and that precedent defines domestic service as to include the general needs of a household resident and not the specialized and particular medial needs of an individual. The court noted that there is little case law on this issue of whether the claimant's duties as a caretaker for a woman suffering from dementia fall within the domestic  service exception, so it endeavored to conduct its own analysis.

The court began by going back to 1939 in a Court of Common Pleas case taken form the Pennsylvania District and County Reporter series of Vaughn v. McFadden, which held that all workers who were engaged in “domestic services performed in a private home” were excluded from coverage under the act. The claimant's duties in Vaughn, were much more clearly domestic in nature, as the claimant there admitted that “there really were no duties” and that she was just sort of a constant companion. A few years later, in Jack v. Belin's Estate, the Pennsylvania Superior Court found that the issue turned not so much on where the activities took place (i.e., inside a home), but on the notion that the work was being done to serve the needs of the household and not a commercial enterprise. As an example, a cook who lives on the premises and serves the family is a domestic servant. The same cook who is hired by the family to sell baked goods to the community would not be.

Turning to actual Commonwealth Court precedent, the first time noted by the court that the issue came before it was the 1988 case if Viola v. Workers' Compensation Appeal Board, where the claimant was employed on a permanent basis to care for a woman who was confined to a wheelchair. The duties included giving medication to the woman, feeding and bathing her. The court found that the claimant in Viola was not engaged in domestic service since all of the claimant's job duties pertained to one individual and not the general needs of the household. Moreover, the duties were likened more to a nurse's aid and not household duties. The next instance of a Commonwealth Court decision addressing domestic servitude was the 1993 case of Dutrow v. Workers' Compensation Appeal Board (Heckard's Catering). In Dutrow, the claimant was serving largely as a babysitter, which the court found did not come under the coverage of the act.

Returning to Van Leer, the claimant argued that her work was more akin to a nurse's aide, a position that would be covered by the act, as opposed to a constant companion or a babysitter. The board in Van Leer actually suggested that the only difference between the claimant's job duties and those of a babysitter is the age of the person being watched. The Commonwealth Court accepted this argument and went through the claimant's own testimony as to what she did for the woman. Essentially, other than providing medication, the court noted that she did not provide any type of medical care. Based on the record below, the court held that the claimant's duties as a caretaker for a woman suffering from “mild dementia” falls within the domestic service exception of the act, and is therefore, not covered.

While the Commonwealth Court's decision is very fact specific and signals a need to focus a similarly situated claimant's testimony on quasi-medical care, the holding is quite problematic. Were the claimant's job duties any different from those of a CNA or home health aide who would undoubtedly be covered by the act? Had the claimant worked for a company that offered similar services to home-bound individuals, would coverage even be questioned? When deciding to take a case which involves a home-care worker with a potential domestic service exception defense, one would do well to read Van Leer to ensure the requisite facts are present to warrant coverage.

Christian Petrucci, of the Law Offices of Christian Petrucci, concentrates his practice in the areas of workers' compensation and Social Security disability. He also counsels injured workers in matters involving employment discrimination and unemployment compensation benefits.