Settlement of Comp Claim Bars Subsequent Civil Action Against Employer on “Third Party Attack” Theory

Where a residential counselor at a Pennsylvania inpatient psychiatric facility sought and successfully secured a $40,000 settlement from her employer in a workers’ compensation proceeding in connection with injuries she sustained when she was attacked by a facility resident, she could not subsequently maintain a civil action against the employer for its alleged failure to have safety procedures, equipment and a building design sufficient to protect the counselor from “potentially violent patients,” held the Superior Court of Pennsylvania [Grabowski v. Carelink Cmty. Support Servs., Inc., 2020 Pa. Super. LEXIS 189 (Mar. 9, 2020)]. She contended the civil action was not barred by exclusivity because it fell within the Pennsylvania Act’s “personal animus” or “third party attack” exception, but the trial court granted the employer’s motion on the pleadings and the appellate court affirmed.

Background

The counselor was injured at the employer’s facility when she was attacked by a resident whom she was assisting. Later, she entered into a compromise and release agreement with the employer pursuant to which she was paid a lump sum of $40,000 in addition to benefits she had already received. The C & R contained a broad release.

Subsequently, the counselor filed a negligence action against her employer alleging that it was liable for the attack because it did not have safety procedures, equipment and a building design sufficient to protect her from “potentially violent patients.” In her complaint, however, she alleged, inter alia, that she had been attacked “while working in the course and scope of her employment” and that the attacker did so without leave or notice or provocation.

Third Party Attack Exclusion

Addressing the employer’s contention that her civil action was barred by the exclusive remedy provisions of the Pennsylvania Act, she contended that her claim came within the “personal animus” or “third party attack” exclusion. She cited several decisions in which judgments awarding personal injury damages had been allowed against an employer where the attacker had exhibited personal animus against the employee and the injuries were the proximate result of the employer’s failure to maintain adequate security.

Employee May Not Have it Both Ways

The appellate court stressed that an employee could not have it both ways. Either an injury was work-related and the employee was entitled only to workers' compensation benefits or it fell within the exception and the employee’s sole remedy was a common law action. The employee could not recover under both theories.

Passive vs. Active Pursuit of Claim

The appellate court acknowledged that mere passive receipt of workers’ compensation benefits for an injury did not bar an employee from suing her employer for negligence. Here, however, the counselor’s actions were not passive. Her settlement amounted to final adjudication in the workers’ compensation proceeding. She was estopped from claiming that the personal animus/third party attack exception applied.

No Showing of Personal Animus

The court added that even if the counselor’s action against her employer was not barred by estoppel, her arguments failed on the merits. She was required to show, not merely that there was an intentional assault, but that the victim was attacked for purely personal reasons that were not related to her employment. Citing earlier precedent, the court held where an employee is the victim of a sudden attack by a non-co-worker for unknown reasons and the attack occurred while the employee was performing her job, the personal animus/third party attack exception did not apply.