You Be the Judge

Is Fall During Horseplay Compensable?

A man working outdoors injured himself falling from a tree. The court was left to decide whether the injury fell within the scope of his employment.
By: | January 9, 2017 • 3 min read

A pipe fitter for Fabricated Pipe worked to assemble pipe parts into larger systems based on isometric drawings. He also occasionally assisted coworkers with moving pipe, cleaning the work yard, or loading and unloading trucks.

The man and some coworkers were cleaning up the work yard. They took a break, and the pipe fitters sat in the shade of a tree and began sending text messages. The coworkers were talking near a water cooler about six feet away.

The pipe fitter said that some coworkers started throwing clumps of dirt at him to aggravate him. The pipe fitters walked to the water cooler, and the men continued talking. Their conversation turned to the subject of climbing trees and about how they climbed trees as children.

The pipe fitter said that two coworkers started to climb the tree. He said a coworker told him to climb the tree. The pipe fitter climbed the tree to a height of approximately 25 feet.

A coworker said that they yelled for the pipe fitter to come down because the tree was shaking, but the pipe fitter denied hearing anyone tell him to come down. The pipe fitter began to shake the tree from side to side. The tree snapped, and the pipe fitter fell 25 feet to the ground.

The pipe fitter was diagnosed with five broke ribs and a spinal cord injury. He sought workers’ compensation benefits. The administrative judge found that he suffered a compensable injury.

Advertisement




The Workers’ Compensation Commission reversed, finding that the pipe fitter’s fall and injuries did not occur within the scope and course of employment. The pipe fitter appealed.

Was the commission correct in finding that the pipe fitter’s injury was not compensable?

  • A. No. The pipe fitter’s tree climbing was mere horseplay during a lull in his work duties, not a deviation from his employment.
  • B. Yes. The pipe fitter deviated from the course of employment when he climbed the tree.
  • C. No. The nature of the pipe fitter’s employment invited some horseplay during lulls in the workday.

How the Court Ruled

A is incorrect. The court found that the pipe fitter’s tree climbing was a deviation from the course of his employment.

C is incorrect. The court found that although the nature of the pipe fitter’s employment may have invited some horseplay during lulls in the workday, Fabricated Pipe also had a policy against unsafe activities and horseplay.

B is correct. In Haney v. Fabricated Pipe, Inc., et al., No. 2015-WC-01321-COA (Miss. Ct. App. 11/08/16), the Mississippi Court of Appeals held that the pipe fitter’s injury was not within the course and scope of his employment.

The court held that the pipe fitter’s tree climbing was a serious and complete deviation from the course of his employment. The court explained that his action was serious enough that his coworkers became alarmed and called for him to climb down.

Also, the deviation was complete, as none of his duties could have been “commingled” with tree climbing. There was no evidence that such conduct had been an accepted part of the employment.

The court pointed out that 25 feet in the air the pipe fitter was not “present and ready” to further Fabricated Pipe’s business. The court also noted that falling out of a tree was not a risk inherent to the pipe fitter’s employment.

Editor’s note: This feature is not intended as instructional material nor to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

2017 RIMS

Resilience in Face of Cyber

New cyber model platforms will help insurers better manage aggregation risk within their books of business.
By: | April 26, 2017 • 3 min read

As insurers become increasingly concerned about the aggregation of cyber risk exposures in their portfolios, new tools are being developed to help them better assess and manage those exposures.

One of those tools, a comprehensive cyber risk modeling application for the insurance and reinsurance markets, was announced on April 24 by AIR Worldwide.

Advertisement




Last year at RIMS, AIR announced the release of the industry’s first open source deterministic cyber risk scenario, subsequently releasing a series of scenarios throughout the year, and offering the service to insurers on a consulting basis.

Its latest release, ARC– Analytics of Risk from Cyber — continues that work by offering the modeling platform for license to insurance clients for internal use rather than on a consulting basis. ARC is separate from AIR’s Touchstone platform, allowing for more flexibility in the rapidly changing cyber environment.

ARC allows insurers to get a better picture of their exposures across an entire book of business, with the help of a comprehensive industry exposure database that combines data from multiple public and commercial sources.

Scott Stransky, assistant vice president and principal scientist, AIR Worldwide

The recent attacks on Dyn and Amazon Web Services (AWS) provide perfect examples of how the ARC platform can be used to enhance the industry’s resilience, said Scott Stransky, assistant vice president and principal scientist for AIR Worldwide.

Stransky noted that insurers don’t necessarily have visibility into which of their insureds use Dyn, Amazon Web Services, Rackspace, or other common internet services providers.

In the Dyn and AWS events, there was little insured loss because the downtime fell largely just under policy waiting periods.

But,” said Stransky, “it got our clients thinking, well it happened for a few hours – could it happen for longer? And what does that do to us if it does? … This is really where our model can be very helpful.”

The purpose of having this model is to make the world more resilient … that’s really the goal.” Scott Stransky, assistant vice president and principal scientist, AIR Worldwide

AIR has run the Dyn incident through its model, with the parameters of a single day of downtime impacting the Fortune 1000. Then it did the same with the AWS event.

When we run Fortune 1000 for Dyn for one day, we get a half a billion dollars of loss,” said Stransky. “Taking it one step further – we’ve run the same exercise for AWS for one day, through the Fortune 1000 only, and the losses are about $3 billion.”

So once you expand it out to millions of businesses, the losses would be much higher,” he added.

The ARC platform allows insurers to assess cyber exposures including “silent cyber,” across the spectrum of business, be it D&O, E&O, general liability or property. There are 18 scenarios that can be modeled, with the capability to adjust variables broadly for a better handle on events of varying severity and scope.

Looking ahead, AIR is taking a closer look at what Stransky calls “silent silent cyber,” the complex indirect and difficult to assess or insure potential impacts of any given cyber event.

Stransky cites the 2014 hack of the National Weather Service website as an example. For several days after the hack, no satellite weather imagery was available to be fed into weather models.

Imagine there was a hurricane happening during the time there was no weather service imagery,” he said. “[So] the models wouldn’t have been as accurate; people wouldn’t have had as much advance warning; they wouldn’t have evacuated as quickly or boarded up their homes.”

It’s possible that the losses would be significantly higher in such a scenario, but there would be no way to quantify how much of it could be attributed to the cyber attack and how much was strictly the result of the hurricane itself.

It’s very, very indirect,” said Stransky, citing the recent hack of the Dallas tornado sirens as another example. Not only did the situation jam up the 911 system, potentially exacerbating any number of crisis events, but such a false alarm could lead to increased losses in the future.

The next time if there’s a real tornado, people make think, ‘Oh, its just some hack,’ ” he said. “So if there’s a real tornado, who knows what’s going to happen.”

Advertisement




Modeling for “silent silent cyber” remains elusive. But platforms like ARC are a step in the right direction for ensuring the continued health and strength of the insurance industry in the face of the ever-changing specter of cyber exposure.

Because we have this model, insurers are now able to manage the risks better, to be more resilient against cyber attacks, to really understand their portfolios,” said Stransky. “So when it does happen, they’ll be able to respond, they’ll be able to pay out the claims properly, they’ll be prepared.

The purpose of having this model is to make the world more resilient … that’s really the goal.”

Additional stories from RIMS 2017:

Blockchain Pros and Cons

If barriers to implementation are brought down, blockchain offers potential for financial institutions.

Embrace the Internet of Things

Risk managers can use IoT for data analytics and other risk mitigation needs, but connected devices also offer a multitude of exposures.

Feeling Unprepared to Deal With Risks

Damage to brand and reputation ranked as the top risk concern of risk managers throughout the world.

Reviewing Medical Marijuana Claims

Liberty Mutual appears to be the first carrier to create a workflow process for evaluating medical marijuana expense reimbursement requests.

Cyber Threat Will Get More Difficult

Companies should focus on response, resiliency and recovery when it comes to cyber risks.

RIMS Conference Held in Birthplace of Insurance in US

Carriers continue their vital role of helping insureds mitigate risks and promote safety.

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]