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08/27/97 JUANITA FRY v. ATLANTIC STATES INSURANCE

August 27, 1997

JUANITA FRY, APPELLANT
v.
ATLANTIC STATES INSURANCE COMPANY, DONEGAL MUTUAL INSURANCE COMPANY, AND FISH NET, INC., T/A THAT FISH PLACE, APPELLEES



Appeal from the Order entered December 12, 1996 In the Court of Common Pleas of Lancaster County, Civil, No. 1263 of 1996. Before GEORGELIS, J.

Before: Mcewen, P.j., Cavanaugh, J. And Montemuro, J.* Opinion BY Montemuro, J. McEwen, P.j. files a Concurring Statement.

The opinion of the court was delivered by: Montemuro

OPINION BY MONTEMURO, J.:

Filed August 27, 1997

This is an appeal from an order sustaining Appellees' preliminary objections and dismissing Appellant's complaint in a matter involving the exclusivity provision of the Workers Compensation Act ("WCA"), 77 Pa.C.S. § 481(a). *fn1

Appellant, an employee of Fish Net, Inc. t/a That Fish Place, injured her back in March of 1994 when a chair on which she was seated collapsed, and began receiving workers compensation benefits. In November, after treating with her employer's physician, among others, without alleviation of her symptoms, lumbar disc surgery was recommended. However, because Appellee insurers refused to authorize the operation until Appellant had submitted to examination by their physician, which did not occur until February of 1995, the surgery was not performed until April of 1995.

Appellant brought suit in August of 1996, alleging that she was unable to recover fully, having suffered permanent nerve damage as a result of the delay in the surgery. The complaint asserted bad faith as to each of the Appellees for allegedly excessive delay in permitting her to undergo the recommended surgery, and sought punitive damages. Appellees responded with preliminary objections in the nature of a demurrer, contending that Appellant's remedies were limited to those recoverable under the WCA, and that her suit was barred by the Act's exclusivity provision. The trial court agreed, and this appeal followed, raising the sole issue of whether our Supreme Court's decision in Martin v. Lancaster Battery Co., 530 Pa. 11, 606 A.2d 444 (1992), permits recovery under the circumstances of this case. For the reasons which follow, we affirm.

We first note that

in an appeal from an order sustaining preliminary objections in the nature of a demurrer, the appellate court applies the same standard employed by the trial court; all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where doubt exists as to whether a demurrer should be sustained, it should be resolved in favor or overruling the demurrer.

Santiago v. Pennsylvania National Mutual Casualty Insurance Co., 418 Pa. Super. 178, 184, 613 A.2d 1235, 1238 (1992) (citations omitted).

Appellant's argument is predicated on the notion that the Court in Martin, supra, created an exception to the exclusivity clause of the WCA permitting redress "for injuries incurred by an employee where intentional acts on the part of the employer caused a delay in medical care which aggravated a work related injury." (Appellant's Brief at 6). The corollary to this premise is that because the exclusivity clause does not apply, Appellant is entitled to recover under the provisions of "the bad faith act," 42 Pa.C.S. § 8371, *fn2 which allows for the award of damages, and, especially punitive damages, in an action arising from a insurance policy against an insurer which has acted in bad faith against the insured.

In Martin, the employer withheld and deliberately falsified the results of certain federally mandated blood tests to conceal from the plaintiff his lead toxicity levels. Martin, 530 Pa. at 13-14, 606 A.2d at 445-46. The delay in discovery caused by the employer's conduct exacerbated the plaintiff's condition far beyond what it would have been with prompt treatment. Id. at 14, 606 A.2d at 446. Martin sued on grounds of fraudulent misrepresentation, and the Supreme Court ruled that the Pennsylvania legislature "could not have intended to insulate employers from liability for the type of flagrant misconduct at issue herein by limiting liability to coverage provided by the Workman's Compensation Act." 530 Pa. at 17-18, 606 A.2d at 448.

Appellant argues that the only distinctions to be drawn between her own case and Martin are that the primary defendant here is the employer's insurance carrier rather than the employer, and that she has alleged no fraudulent misrepresentation. While the first of these is indeed no distinction at all, the second represents a critical difference; the Court observed of Martin that he was not seeking damages for the work-related condition itself, which would be covered under the Act, but rather for "fraudulent misrepresentation on the part of his employer as causing the delay which aggravated a work-related injury." Id. at 17, 606 A.2d at 447.

This Court has, on several occasions, interpreted Martin to stand for the proposition that only suits for deliberate conduct, specifically fraudulent misrepresentation, which aggravates a work-related condition are permitted prior to or in lieu of the adjudication of such conduct under the provisions of the WCA. See Hammerstein v. Lindsay, 440 Pa. Super. 350, 359 n.5, 655 A.2d 597, 602 n.5 (1995) ("The holding of Martin is limited to situations where the employer has engaged in fraudulent misrepresentation."); Grant v. GAF Corp., 415 Pa. Super. 137, 155, 608 A.2d 1047, 1056 (1992) ("Where an employee alleges fraudulent misconduct on the part of an employer which causes aggravation of a work-related injury, the employee is not barred from pursuing a common law claim against the employer"). In Santiago v. Pennsylvania National Mutual Casualty Insurance Co., supra, we found that Martin is germane where the employer has "concealed, altered or intentionally misrepresented information related to the work-related injury which results in [its] aggravation." Santiago, 418 Pa. Super. at 190, 613 A.2d at 1241. As Appellant freely concedes, no fraudulent conduct occurred or is alleged here, and thus provided no catalyst for the alleged aggravation of her injury; thus, ...


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