View From the Bench

Workers’ Comp Docket

Significant workers' compensation legal decisions from around the country.
By: | February 6, 2017 • 12 min read

Marijuana Use Doesn’t Prevent Award of TTD Benefits

State ex rel. Cordell v. Pallet Co., Inc., et al., No. 2015-0163 (Ohio 12/29/16)

Ruling: The Ohio Supreme Court held that a worker was entitled to temporary total disability benefits.

What it means: In Ohio, when a worker is terminated after a workplace injury for conduct prior to and unrelated to the workplace injury, his termination does not amount to a voluntary abandonment of employment that will preclude temporary total disability compensation when: 1) the discovery of the dischargeable offense occurred because of the injury; and 2) at the time of the termination, the worker was medically incapable of returning to work as a result of the injury.

Summary: A worker for Pallet Co. was injured in the course and scope of his employment when he fell between a dock and a truck, fracturing his leg. At the hospital, the worker’s urine was collected and sent for a toxicology screening. The worker sought workers’ compensation benefits the day after the accident. Subsequently, the worker’s toxicology results showed that he tested positive for marijuana metabolites. He was terminated that day for violating Pallet’s drug-free workplace policy. The Ohio Supreme Court held that the worker was entitled to temporary total disability benefits.

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The court explained that the worker’s marijuana use was not the proximate cause of his injury. Also, when he was terminated, he had not returned to work, he had not been released by his doctor to return to work, he had not reached maximum medical improvement, and he was physically incapable of returning to work.

The court also concluded that the worker’s termination did not amount to a voluntary abandonment of his employment because he was medically incapable of returning to work when he was terminated. Also, the court explained that this case involved the violation of a work rule before the injury that was discovered as a result of the injury.

Dissenting judges opined that the worker voluntarily abandoned his employment when he used an illegal controlled substance in violation of Pallet’s drug-free workplace policy. A dissenting judge said that the worker’s misconduct severed the causal connection between the injury and the wage loss.

Unpaid Intern’s Benefits Based on Assumed Wage

Rehfeld v. Sedgwick Claims Management Services, No. A157406 (Or. Ct. App. 01/05/17)

Ruling: The Oregon Court of Appeals sent the case back to the Workers’ Compensation Board for a determination of an intern’s temporary disability benefits.

What it means: In Oregon, for workers who have no wages, benefits must be calculated on the “assumed wage” on which the employer’s premium is based.

Summary: An intern’s work for Wend Magazine involved graphic design, selling advertising, and modeling sports clothing for photo shoots. The intern was unpaid in part and paid in part on commission for advertising sales. After working one month for Wend, she was injured when she fell and broke her wrist while modeling skateboard clothing for a photo shoot. At the time of her injury, the intern had not finalized any advertising sales and had not earned a commission. Because of Wend’s noncomplying status, the Workers’ Compensation Board was unable to determine a weekly wage for the intern. The intern argued that her benefits should be based on the minimum wage. The board concluded that she was entitled to the statutory minimum benefit of $50. The Oregon Court of Appeals reversed and sent the case back to the board.

For workers like the intern who have no wages, benefits must be calculated on the assumed wage on which the employer’s premium is based. The intern did not have an assumed wage because Wend was a noncomplying employer. The court explained that a compensable injury to a worker employed by a noncomplying employer is compensable to the same extent as if the employer had complied with the law. Had Wend complied, the intern’s benefits would have been calculated using the assumed rate on which Wend’s premium was based.

The court sent the case back to the board to determine the intern’s temporary disability benefits based on the assumed wage on which Wend’s premium would have been had it provided insurance.

Employee Awarded Comp for Injury in Public Street in Front of His Home

Balloli v. New Haven Police Department, et al., No. SC 19584 (Conn. 12/27/16)

Ruling: The Connecticut Supreme Court held that a police officer’s back injury was compensable.

What it means: In Connecticut, a police officer’s injury in a public street while on his way to work is within the course of his employment.

Summary: A police officer for the New Haven Police Department moved his vehicle out of his driveway so that his son could move another vehicle out of the driveway. The officer parked his vehicle in the street directly in front of his house. About 30 minutes later, the office walked to his car to drive to work. While standing in the street, he dropped his keys, which landed under his vehicle. The officer squatted down and twisted to pick up his keys, injuring his lumbar spine. The officer filed a workers’ compensation claim. The Connecticut Supreme Court held that his injury was compensable.

The court explained that for a police officer, “in the course of employment” encompasses his departure from his place of abode to duty, his duty, and his return to his place of abode after duty. The legislature provided examples to help define the term “place of abode,” including areas related to where an individual resides such as walkways, breezeways, yards, and driveways. The court noted that this list did not include public areas adjacent to a person’s property such as sidewalks or streets. The court found that construing “place of abode” to include a public street would frustrate the remedial purpose of the law.

The court concluded that when the officer dropped his keys in the street and was injured, he was acting within the course of his employment. The fact that he had left his driveway and entered the public street on his way to duty was sufficient to establish that he was covered. It was not necessary to demonstrate that he entered his vehicle or started his engine.

A dissenting judge opined that the officer’s place of abode extended to the street where his vehicle was parked.

Time Limitation on Claim Doesn’t Allow Worker to Sue Employer

Hendrix v. Alcoa, Inc., No. CV-15-558 (Ark. 12/15/16)

Ruling: The Arkansas Supreme Court held that an estate’s wrongful death suit against a deceased worker’s employer should be dismissed.

What it means: In Arkansas, a worker can sue his employer when there is no remedy under the workers’ compensation law. The time limitation on filing a workers’ compensation claim does not equate to the absence of a remedy.

Summary: A former worker for Alcoa was diagnosed with mesothelioma, an asbestos-related cancer 17 years after he stopped working for the employer. He filed a claim against Alcoa for workers’ compensation benefits, alleging that he was exposed to asbestos during the course of his employment. The administrative law judge found that the claim was time-barred because it was not filed within three years of the last date of injurious exposure. Subsequently, the worker died. His estate sued Alcoa. In a case of first impression, the Arkansas Supreme Court dismissed the suit.

The estate asserted that because the statute of limitations extinguished the worker’s remedy under the workers’ compensation law before it accrued, the exclusive remedy provision did not apply. The court rejected the argument. The court explained that a worker can sue an employer only if the workers’ compensation law provides no remedy for the worker’s condition. The workers’ compensation law covers occupational diseases, including asbestos-related claims. The court found that the temporal limitation on recovery did not equate to the absence of a remedy under the workers’ compensation law.

The court also explained that it could not have been the legislature’s intent to absolve an employer of liability for workers’ compensation after a period of time only to subject the employer to liability in a suit after that period ended. The court noted that its result “smack[ed] of unfairness,” particularly when it was well-known that mesothelioma has a long latency period. However, any inequity must be addressed by the legislature.

Dissenting judges opined that the majority deprived the estate of the opportunity to pursue its only remedy. The dissent also said that the majority’s holding deprived workers whose injuries and disease do not manifest during the three-year statute of limitations of a remedy, essentially allowing employers to escape liability.

Unexplained Death Presumption Doesn’t Extend to Worker Who Survived

Turner v. SAIIA Construction, et al., No. 5458 (S.C. Ct. App. 12/07/16)

Ruling: The South Carolina Court of Appeals held that an operator was not entitled to benefits for the injuries he sustained from an unexplained fall.

What it means: In South Carolina, the unexplained death presumption does not apply in cases where the worker survives the injury but had no memory of the events leading up to the injury.

Summary: A heavy equipment operator for SAIIA Construction was found lying on his back next to his dump truck. The operator said that he had no memory of the accident or how it happened. A few weeks before the accident, the operator sought medical care for his lower back. Two days before the accident, he complained to his supervisor that he did not feel well. The operator filed a workers’ compensation claim alleging an injury to his back, head, and thoracic spine. The South Carolina Court of Appeals held that the operator was not entitled to benefits.

The operator argued that the unexplained death presumption applied. The presumption applies when one found charged with the performance of a duty and injured while performing such duty or found injuries where his duty required him to be is injured in the course of his employment. The court declined to apply the presumption in cases where the worker survived the injury but had no memory of the events leading up to the injury. Even if the court extended the presumption, SAIIA rebutted the presumption with evidence that the operator had recent nonwork-related preexisting back conditions.

The court also found that the injury was not a compensable unexplained fall. The operator failed to establish a causal connection between his unexplained fall and his employment. The court noted that it could not determine what he was doing at the time of the incident. Although he was at work when he fell, no evidence showed that his employment contributed to the cause of the fall.

Downsized Injured Worker Was Not Victim of Discrimination

Tirk v. Dubrook, Inc., No. 16-1402 (3d Cir. 12/27/16, unpublished)

Ruling: In an unpublished decision, the 3d U.S. Circuit Court of Appeals affirmed a District Court decision granting summary judgment to an employer on an employee’s claims under ADA Title I. The 3d Circuit held that the employee’s discrimination claim failed because he showed neither causation nor pretext.

What it means: Absent evidence “unduly suggestive” of discrimination, a temporal gap of one month between a protected activity and termination does not sufficiently demonstrate a causal connection.

Summary: A maintenance worker injured his left knee several times over the course of three years. Each time, he missed several weeks of work and was put on medical restrictions, which the company accommodated. After one of the injuries, he filed a workers’ compensation claim. He injured his knee again when he fell from a ladder at work. He filed an accident report but missed no work time. He was put on temporary medical restrictions, which the company honored. One month later, the worker and two other employees were terminated for “economic reasons as part of a reduction in force.” Existing employees took over his responsibilities, and the company did not replace him. The worker sued under the ADA. In an unpublished decision, the 3d Circuit held that he showed neither causation nor pretext.

The worker argued that the company discriminated against him because of a perceived disability and that its stated reasons for terminating him were pretext. The 3d Circuit concluded that the worker failed to make a prima facie showing of causation. Although only one month transpired between the filing of his accident report and his termination, “a temporal gap of one month alone [does not] sufficiently demonstrate a causal connection.” Also, there was no basis to believe that the temporal gap was “unduly suggestive” of discrimination, given the worker’s history of knee injuries, time off from work related to those injuries, and medical work restrictions. He faced no repercussions because of prior injuries or for filing a workers’ comp claim and provided no explanation for why the most recent injury — which required no time off work and minimal work restrictions — created a perception of disability resulting in termination.

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The worker also failed to show that the company’s reasons for his termination were pretextual. He did not dispute that the company faced economic problems, that other employees assumed his responsibilities, and that he was never replaced. Rather, he argued that the company’s reasons were pretextual because three months after the RIF it partially replaced one of the other two employees. The court concluded that the company’s partial replacement three months later of another employee provided no basis to disbelieve the company’s stated reasons for terminating the worker.

Trip, Fall at Holiday Party Isn’t Covered by Comp

Lennon v. N.C. Judicial Department, et al., No. COA16-476 (N.C. Ct. App. 12/06/16, unpublished)

Ruling: In an unpublished decision, the North Carolina Court of Appeals held that a clerk’s injury at a holiday party was not compensable.

What it means: In North Carolina, an injury arising out of a recreational activity will not be compensable when the employer did not require attendance at the activity.

Summary: A deputy clerk of court in the accounting division for the Harnett County Clerk of Court planned the annual office holiday party with her division. A group of attorneys sponsored the party by paying for the venue and the food. The clerk helped design the invitations and assisted with securing catering and planning the program. She also volunteered to serve as the emcee for the event, which was to be held in the evening after work. All employees were invited to attend. Regardless of whether they attended, employees were expected to contribute $13 to pay for a gift for the clerk of court and for cleaning up after the party. On the night of the party, the clerk was entering the party venue when she tripped and fell, suffering injuries. She sought workers’ compensation benefits. The North Carolina Court of Appeals held that she was not entitled to benefits.

The clerk argued that she was required to attend the party. The court disagreed, pointing out that coworkers testified that attendance was not required. The clerk volunteered to emcee the party, the only activity that necessitated her attendance.

The court concluded that the injury did not arise out of and in the course of the clerk’s employment. The court explained that the party was not sponsored by the employer, attendance was not required, no degree of encouragement existed, the employer did not finance the occasion, the employees did not regard the event as a benefit or entitlement, and the event did not provide the employer with a benefit except for improving employee morale.

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]

More from Risk & Insurance

More from Risk & Insurance

Risk Report: Hospitality

Bridging the Protection Gap

When travelers stay home, hospitality companies recoup lost income through customized, data-defined policies.
By: | October 12, 2017 • 9 min read

In the wake of a hurricane, earthquake, pandemic, terror attack, or any event that causes carnage on a grand scale, affected areas usually are subject to a large “protection gap” – the difference between insured loss and total economic loss. Depending on the type of damage, the gap can be enormous, leaving companies and communities scrambling to obtain the funds needed for a quick recovery.

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RMS estimates that Hurricane Harvey’s rampage through Texas could cause as much as $90 billion in total economic damage. The modeling firm also stated that “[National Flood Insurance Program] penetration rates are as low as 20 percent in the Houston area, and thus most of the losses will be uninsured.”

In addition to uninsured losses from physical damage, many businesses in unaffected surrounding areas will suffer non-physical contingent business interruption losses. The hospitality industry is particularly susceptible to this exposure, and its losses often fall into the protection gap.

Natural catastrophes and other major events that compromise travelers’ safety have prolonged impacts on tourism and hospitality. Even if they suffer no physical damage, any hotel or resort will lose business as travelers avoid the area.

“The hospitality industry is reliant on people moving freely. If people don’t feel safe, they won’t travel. And that cuts off the lifeblood of the industry,” said Christian Ryan, U.S. Hospitality and Gaming Practice Leader, Marsh.

Christian Ryan
U.S. Hospitality and Gaming Practice Leader, Marsh

“People are going away from the devastation, not toward it,” said Evan Glassman, president and CEO, New Paradigm Underwriters.

Drops in revenue resulting from decreased occupancy and average daily room rate can sometimes be difficult to trace back to a major event when a hotel suffered no physical harm. Traditional business interruption policies require physical damage as a coverage condition. Even contingent business interruption coverages might only kick in if a hotel’s direct suppliers were taken offline by physical damage.

If everyone remains untouched and intact, though, it’s near impossible to demonstrate how much of a business downturn was caused by the hurricane three states away.

“Hospitality companies are concerned that their traditional insurance policies only cover business interruption resulting from physical damage,” said Bob Nusslein, head of Innovative Risk Solutions for the Americas, Swiss Re Corporate Solutions.

“These companies have large uninsured exposure from events which do not cause physical damage to their assets, yet result in reduced income.”

Power of Parametrics

Parametric insurance is designed specifically to bridge the protection gap and address historically uninsured or underinsured risks.

Parametric coverage is defined and triggered by the characteristics of an event, rather than characteristics of the loss. Triggers are custom-built based on an insured’s unique location and exposures, as well as their budget and risk tolerance.

“Triggers typically include a combination of the occurrence of a given event and a reduction in occupancy rates or RevPar for the specific hotel assets,” Nusslein said. Though sometimes the parameters of an event — like measures of storm intensity — are enough to trigger a payout on their own.

For hurricane coverage, for example, one policy trigger might be the designation of a Category 3-5 storm within a 100-mile radius of the location. Another trigger might be a 20 percent drop in RevPAR, or revenue per available room. If both parameters are met, a pre-determined payout amount would be administered. No investigations or claims adjustment necessary.

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The same type of coverage could apply in less severe situations where traditional insurance just doesn’t respond. Event or entertainment companies, for example, often operate at the whim of Mother Nature. While they may not be forced to cancel a production due to inclement weather, they will nevertheless take a hit to the bottom line if fewer patrons show up.

Christian Phillips, focus group leader for Beazley’s Weatherguard parametric products, said that as little as a quarter- to a half-inch of rain over a four- to five-hour period is enough to prevent people from coming to an event, or to leave early.

“That’s a persistent rainfall that will wear down people’s patience,” he said.

“A rule of thumb for parametric weather coverage, if you’re looking to protect loss of revenue when your event has not actually been cancelled, you will probably lose up to 20 to 30 percent of your revenue in bad weather. That depends on the client and the type of event, but that’s the standard we’ve realized from historical claims data.”

The industry is now drawing on data to establish these rules of thumb for more serious losses sustained by hospitality companies after major events.

“Until recently the insurance industry has not created products to address these non-physical damage business interruption exposures. The industry is now collaborating with big data companies to access data, which in turn, allows us to structure new products,” Nusslein said.

Data-Driven Triggers

Insurers source data from weather organizations that track temperature, rainfall, wind speeds and snowfall, among other perils, by the hour and sometimes by the minute. Parametric triggers are determined based on historical storm data, which indicates how likely a given location is to be hit.

“We try to get a minimum of 30 years of hourly data for those perils for a given location,” Phillips said.

“Global weather is changing, though, so we focus particularly on the last five to 10 years. From that we can build a policy that fits the exposure that we see in the data, and we use the data to price it correctly.”

New Paradigm Underwriters collects their own wind speed data via a network of anemometers that stretch from Corpus Christi, Texas, all the way to Massachusetts, and works with modeling firms like RMS to gather additional underwriting information.

The hospitality industry is reliant on people moving freely. If people don’t feel safe, they won’t travel. And that cuts off the lifeblood of the industry.– Christian Ryan, U.S. Hospitality and Gaming Practice Leader, Marsh

While severe weather is the most common event of concern, parametric cover can also apply to terrorism and pandemic risks.

“We offer a terror attack quote on every one of our event policies because everyone asks for it,” said Beazley’s Phillips.

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“We didn’t do it 10 years ago, but that’s the world we live in today.”

An attack could lead to civil unrest, fire or any number of things outside an insured’s control. It would likely disrupt travel over a wide geographic region.

“A terrorist event could cause wide area devastation and loss of attraction, which results in lost income for hospitality companies,” Nusslein said.

Disease outbreaks also dampen travel and tourism. Zika, which was most common in South America and the Caribbean, still prevented people from traveling to south Florida.

“Occupancy went down significantly in that region,” Marsh’s Ryan said.

“If there is a pandemic across the U.S., a parametric coverage would make sense. All travel within and inbound to the U.S. would go down, and parametric policies could protect hotel revenues in non-impacted areas. Official statements from the CDC such as evacuation orders or warnings could qualify as a trigger.”

Less data exists around terror attacks and pandemics than for weather, though hotels are taking steps to collect information around their exposure.

“It’s hard to quantify how an infectious disease outbreak will impact business, but we and clients are using big data to track travel patterns,” Ryan said.

Hospitality Metrics

Any data collected has to be verified, or “cleaned.”

“We only deal with entities that will clean the data so we know the historical data we’re getting is accurate,” Phillips said.

“There are mountains of data out there, but it’s unusable if it’s not clean.”

Parametric underwriters also tap into the insured’s historical data around occupancy and room rates to estimate the losses it may suffer from decreased revenue.

Bob Nusslein, head of Innovative Risk Solutions for the Americas, Swiss Re Corporate Solutions.

“The hospitality industry uses two key metrics to measure loss of business income. These include occupancy rate and revenue per available room, or RevPAR. These are the traditional measurements of business health,” Swiss Re’s Nusslein said.  RevPAR is calculated by multiplying a hotel’s average daily room rate (ADR) by its occupancy rate.

“The hotel industry has been contributing its data on occupancy, RevPAR, room supply and demand, and historical data on geographical and seasonal trends to independent data aggregators for many years. It has done an exceptional job of aggregating business data to measure performance downturns from routine economic fluctuations and from major ‘Black Swan’ events, like the 9/11 terrorist attacks, the 2008 financial crisis or the 2009 SARS epidemic.”

Claims history can also provide an understanding of how much revenue a hotel or an event company has lost in the past due to any type of business interruption. Business performance metrics combined with claims data determine an appropriate payout amount.

Like coverage triggers, payouts from parametric policies are specifically defined and pre-determined based on data and statistical evidence.

This is the key benefit of parametric coverage: triggers are hit, payment is made. With minimal or no adjustment process, claims are paid quickly, enabling insureds to begin recovery immediately.

Applying Parametric Payments

For hotels with no physical damage, but significant drops in occupancy and revenue, funds from a parametric policy can help bridge the income gap until business picks up again, covering expenses related to regular maintenance, utilities and marketing.

Because payment is not tied to a specific type or level of loss, it can be applied wherever insureds need it, so long as it doesn’t advance them to a better financial position than they enjoyed prior to the loss.

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Parametric policies can be designed to fill in where an insured has not yet met their deductible on a separate traditional policy. Or it could function as excess coverage. Or it could cover exposures excluded by other policies, or for which there is no insurance option at all. Completely bespoke, parametric coverages are a function of each client’s individual exposures, risk tolerance and budget.

“Parametric insurance enables underwriting of risks that are outside tolerance levels from a traditional standpoint,” NPU’s Glassman said.

The non-physical business interruption risks faced by the hospitality industry match that description pretty closely.

“Hotels are a good fit for parametric insurance because they have a guaranteed loss from a business income standpoint when there is a major storm coming,” Glassman said.

While only a handful of carriers currently offer a form of parametric coverage, the abundance of available data and advancement in data collection and analytical tools will likely fuel its popularity.

Companies can maximize the benefits of parametric coverages by building them as supplements to traditional business interruption or event cancellation policies. Both New Paradigm Underwriters and Beazley either work with other property insurers or create hybrid products in-house to combine the best of both worlds and assemble a comprehensive risk transfer solution. &

Katie Siegel is an associate editor at Risk & Insurance®. She can be reached at [email protected]