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Moberg v. Workers' Compensation Appeal Board

March 17, 2010


The opinion of the court was delivered by: Jim Flaherty, Senior Judge


AND NOW, this 25th day of May, 2010, it is ORDERED that the above-captioned opinion filed March 17, 2010, shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.



Kathleen Moberg (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) denying her Claim Petition. We affirm.

Claimant filed Claim Petition against Twining Village (Employer), a retirement community, alleging she sustained an injury in the course and scope of her employment on April 12, 2006. Claimant asserted that as a condition of employment, she was required to have a tuberculin test. She alleged that after undergoing the test, she had an adverse reaction. She fainted and fell to the floor. Claimant sought payment of resultant medical bills.

Claimant testified that she applied to be a server in the dining room operated by Employer. She stated that on April 12, 2006, after applying for the job, she reported to Employer's outpatient room to receive a tuberculin test. She explained that taking the tuberculin test was a condition to working for Employer. She added, "[i]t was one of the procedures that I had to go through before I could get hired." Reproduced Record (R.R.) at 18a. According to Claimant, the nurse performed the test in her forearm and then left the room. Claimant then passed out and struck her head. She received medical treatment that day including undergoing a CAT scan.

Claimant verified that Employer ultimately did hire her approximately one month after the test. On cross-examination, she agreed she was not Employer's employee as of April 12, 2006. She added, however, that she was told she was hired prior to that date, but before she could start working she had to submit to the tuberculin test. Claimant believed she signed an employment agreement with Employer prior to the syncope episode. She did not have a copy of any such agreement. Claimant did not recall if that agreement contained a start date, but noted her start date was conditioned upon the end of her school year. She acknowledged she received no pay for any work on April 12, 2006.

Employer presented the testimony of Denise M. Miller, its Executive Director, who is responsible for all operations of the retirement community. She explained that in order to become one of Employer's employees, one must complete an I-9 form, submit vehicle information, undergo a background check, submit to a drug test, and sign a job description. Ms. Miller agreed a tuberculin test is also required for every employee who is working in a healthcare environment "on hire." R.R. at 52a. The test is done on Employer's premises. It is a two step-process where in the first step, a skin test is done. The skin is viewed forty-eight hours later to see if there is a negative reaction. If there is none, the same process is repeated seven to ten days later. According to Ms. Miller, both steps need to be completed before you can start working for Employer. She explained "all of the testing needs to be done in order to be considered hired." Id. at 55a. She elaborated by stating, "[w]e are not permitted to allow any applicant to start work without the two-step [tuberculin test]. It is clearly stated in the regulations that we have to follow." Id. at 56a. Ms. Miller added that in regards to drug testing, Employer has no control over the timeframe regarding its completion as it is done off site and it is up to the applicant to be diligent in getting it completed.

Ms. Miller indicated Employer does not use employment contracts. Claimant, per Ms. Miller, was not an employee as of April 12, 2006. She acknowledged Claimant was hired on subsequently. She further agreed upon questioning by the WCJ that the only people sent for tuberculin tests are successful candidates that are anticipated to be hired by Employer.

Employer further presented the testimony of Dariel A. Kirk, supervisor for the outpatient department in the independent living section, who administered the tuberculin test on April 12, 2006. She agreed that on that date, the first step of the test was administered. Ms. Kirk indicated that the test is part of the process of being hired by Employer. On cross-examination, Ms. Kirk agreed that only patients and employees obtain medical care and/or services at the outpatient department.

By a decision circulated December 30, 2008, the WCJ denied Claimant's Claim Petition. She concluded Claimant failed to meet her burden of establishing that there was an employer/employee relationship at the time Claimant sustained her injury. The WCJ found Claimant was a mere applicant at the time of her injury. The WCJ noted that although Claimant expressed that she entered into an employment contract before the date of injury, she failed to submit any contract into the record to corroborate that testimony. She further concluded Claimant gave inconsistent statements by stating first that she was hired before submitting to the tuberculin test, but later admitting that she was not an employee as of April 12, 2006 and that she understood further steps needed to be taken before she could be hired. The WCJ credited the testimony of Ms. Miller and Ms. Kirk that Claimant was a job applicant at the time of her injury, that there was no contract for employment, that she received no salary for work performed on April 12, 2006, and that she had not completed all prerequisites to be hired as of that date.

The Board affirmed on August 21, 2009 deferring to the WCJ's fact-finding ability the WCJ's credibility determinations. This appeal followed.*fn1

Claimant argues on appeal that the WCJ erred in denying her Claim Petition. She contends the record supports a finding that she was in the course and scope of her employment at the time of her injury on April 12, 2006. The crux of Claimant's argument is that Claimant was hired for all intents and purposes prior to April 12, 2006 and that ...

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