View From the Bench

Workers’ Comp Docket

Significant workers' compensation legal decisions from around the country.
By: | May 12, 2017 • 11 min read

Obtaining Job Under False Name Doesn’t Preclude Benefits

Mera-Hernandez v. U.S.D. 233, No. 112,760 (Kan. 03/24/17)

Ruling: The Kansas Supreme Court upheld the Court of Appeals’ determination that a school custodian was eligible for workers’ compensation benefits despite the fact that she obtained the job using a false name and identification documents.

What it means: Because workers’ compensation laws frequently provide the exclusive remedy for a worker injured on the job, many states, including Kansas, liberally construe the term “employee” when determining eligibility for coverage.

Here, Kansas’ broad definition of employee, which essentially includes anyone who has entered into an employment arrangement with an employer, made an employer responsible for benefits.

Summary: A school custodian’s use of a false name and identification documents to obtain employment with a Kansas school district did not let the district off the hook for workers’ compensation benefits when the custodian injured her back.


Because the custodian fell within the broad definition of “employee” set forth in Kansas’ Workers’ Compensation Act, the district could not exclude her from coverage, the Kansas Supreme Court ruled. It upheld the state Court of Appeals’ decision, which in turn affirmed a determination by the state Workers’ Compensation Board that the custodian was entitled to benefits for her work-related back injury.

The district asserted that because the custodian’s fraudulent conduct induced it to hire her, her employment contract was void from the beginning. Without an employment contract, it argued, she could not recover any benefits under the state’s workers’ compensation system.

Noting that the district’s argument “has been rejected at every level to this point,” the court explained that the definition of “employee” “should be liberally construed to bring workers within the provisions of the Act.”

Under the workers’ compensation law, an employee is “any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer,” the court added. As the custodian fit the broad definition of employee, she was entitled to coverage.

The court also pointed out that in another case it declined to “read a public policy exception based on immigration status into the Act.” Instead determining that because the employee met the statutory definition of employee, she was covered.

Finally, it observed, the state legislature amended the act in 2011 but did not alter the definition of ‘employee.’”

Expert Testimony Connects Employee’s Cancer to Workplace Mercury Exposure

Paradise Valley Unified School District, et al. v. Industrial Commission of Arizona, et al., No. 1 CA-IC 16-0020 (Ariz. Ct. App. 03/28/17)

Ruling: The Arizona Court of Appeals upheld an administrative law judge’s finding that a school district technician’s bladder cancer was caused by exposure to mercury from crushed light bulbs. He was therefore entitled to workers’ compensation benefits for his industrial injury.

What it means: Employers in Arizona should ensure that workers who handle toxic materials are provided with adequate safety equipment, and comply with user manual instructions, as well as applicable state and federal safety regulations.

Summary: A technician for a school district was the primary operator of a “bulb-eater machine” his school district purchased. The machine was used to crush and dispose of all fluorescent bulbs that burned out in the district. The technician testified that he crushed approximately 20,000 bulbs over the course of his employment.

Four years after he started using the machine, he was diagnosed with an aggressive form of bladder cancer. He sought workers’ compensation benefits for his condition. An administrative law judge ruled in his favor, and the district appealed. The Arizona Court of Appeals held that he was entitled to benefits.

The court explained that to secure benefits, the technician had to show not only that his injury arose of his employment, but that industrial exposure to mercury caused him to develop cancer.

He satisfied the first element, legal causation, by demonstrating that operating the machine over a period of years inside a closed warehouse was part of his job duties, the court noted.

According to the ALJ, the court continued, the technician “was exposed to mercury vapor from broken and exploding fluorescent tubes and in fact was covered with dust containing mercury while performing his work.”

As to the second element, medical causation, the court highlighted the testimony of one of the technician’s treating physicians. He testified that the technician was “fairly young” to have bladder cancer and that he lacked any of the “usual risk factors, such as smoking, second-hand smoke, or a genetic predisposition.”

An expert witness added that the paper mask the technician used “did not provide the level of filtration necessary to protect against mercury exposure.” Based on the totality of the evidence, the court held that the technician was entitled to workers’ compensation benefits.

Board Must Take Second Look at Softball Injury After Applying Incorrect Standard

Morris James LLP v. Weller, No. N16A-05-006 FWW (Del. Super. Ct. 03/16/17)

Ruling: The Delaware Superior Court reversed a decision by the Industrial Accident Board finding that a paralegal’s injury during a softball game was compensable and sent the case back to apply the correct standard.

What it means: In Delaware, a worker’s injury during a recreational activity not sponsored by the employer is compensable if it occurred on the employer’s premises, the employer required participation, or the employer derived a substantial benefit beyond the intangible value of improvement in employee health and morale.

Summary: A group of a law firm’s employees decided to form a softball team to compete in the Wilmington Lawyers’ Softball League. The firm paid for the team’s jerseys, bats, and meals after each game.


A bankruptcy paralegal previously managed the team and worked on softball-related activities at work. He left work early to get a cooler and buy beverages for the game.

During the game, the paralegal was running around the bases when his Achilles tendon ruptured. The controller of the law firm suggested that he file a workers’ compensation claim. The law firm’s carrier denied the claim.

Later, the Industrial Accident Board determined that the paralegal’s injury occurred within the course and scope of his employment. The law firm argued that the board applied the incorrect standard. The Delaware Superior reversed the board’s decision and sent the case back for it to apply the correct standard.

The board found that the Wilmington Lawyers’ Softball League, not the law firm, sponsored the softball games. The court found that the board applied factors that apply to a company-sponsored recreational event.

The court said that a different standard applies when a recreational event is not sponsored by an employer. A worker’s injury during a recreational activity not sponsored by the employer is compensable if it occurred on the employer’s premises, the employer required participation, or the employer derived a substantial benefit beyond the intangible value of improvement in employee health and morale.

The court pointed out that only one of the factors must be satisfied to support a finding that an injury is compensable. Also, the third factor requires an employer to derive a “substantial benefit” form the activity.

The court said that in the context of a recreational event, such as a softball game, a direct benefit to an employer includes business advertising, publicity, and monetary gain.

School Employee Scores Benefits for Wipeout During Senior Prank Day

Field v. Pinckneyville Community H.S. Dist. 101, 25 ILWCLB 12 (Ill. W.C. Comm. 2016)

Ruling: The Illinois Workers’ Compensation Commission awarded a teacher permanent partial disability benefits based on 35 percent loss of use of the left leg and medical expenses of $80,791 for injuries sustained while walking from her vehicle to the building where she worked.

What it means: In Illinois, when a teacher parks in an area that is much farther away than the normal area because students are participating in a senior prank day by blocking teachers from parking in their customary parking spaces, the prank day is implicitly approved by the school administrators, and the blocking of the teachers from parking in their customary parking spaces is a known activity, the teacher was within the scope of her employment.

Summary: A high school art teacher testified she was en route to her employer when she found the entrances to the school parking lot were blocked off by vehicles as part of a senior prank day. Therefore, she parked next to the football practice field, which was across a side street that bordered the school.

As she walked across the morning grass, she fell and fractured her lower left leg. The grass was not flat but had a slight decline from the sidewalk to the parking lot. The arbitrator found the teacher’s accident arose out of and in the course of her employment and awarded benefits.

The arbitrator noted that although the teacher parked in a spot that was much farther away from her customary parking space, it was the most direct route from her car to the school doors.

The school tradition of Senior Prank Day was not a school-sponsored event, but it was implicitly approved by the school administrators, and the blocking of the teachers from parking in their customary parking spaces was a known activity.

Accordingly, the teacher was within the scope of her employment when she parked across the street from the school.

After she parked, the teacher took the most direct route from her car to the school doors while maintaining a distance from the students, their music, and their vehicles.

The teacher testified that although she was not scared of the students, she was focused on their activities and desired to avoid close contact. She was not sure whether she slipped on the morning grass or tripped in an unseen hole.

Under these circumstances, she, as a teacher and therefore an intended target of the prank, experienced an increased risk of harm than that of the general public. Furthermore, her choice of route across the mowed grass and away from the students and vehicles was reasonable.

Upon review, the commission affirmed and adopted the decision of the arbitrator.

Suit for Injuries Resulting From Stroke at Work Moves Forward

Baiguen v. Harrah’s Las Vegas, LLC d/b/a Harrah’s Casino Hotel, et al., No. 70204 (Nev. Ct. App. 02/28/17)

Ruling: The Nevada Court of Appeals reversed a grant of summary judgment to an employer on a worker’s suit. The evidence did not show that the worker’s injuries arose from his employment.

What it means: In Nevada, a worker’s injury arose from his employment when there is a causal connection between the injury and the nature of the work or workplace.

Summary: A worker for Harrah’s Casino Hotel suffered a stroke sometime between driving to work and prior to the start of his shift. His coworkers saw him exhibiting signs of distress in the parking lot and the clocking-in area before work, but nobody realized that his condition was as serious as a stroke.


A group of coworkers drove him home, where he remained unattended for two days and eventually suffered permanent injuries. The worker sued Harrah’s for negligence, claiming that its failure to render him timely medical aid reduced his chances of avoiding permanent harm from the stroke. Harrah’s sought summary judgment, arguing that the worker’s sole remedy was workers’ compensation.

The District Court granted summary judgment to Harrah’s, finding that the suit was barred by the exclusive remedy of the workers’ compensation law. The Nevada Court of Appeals reversed.

The court found that the worker’s injury occurred during the course of employment. He was on the premises of his place of employment and was proceeding to work when he experienced the stroke.

The court found that the facts of the case raised a question regarding whether the risk of the worker’s injuries were personal and neutral. The court determined that the worker’s injuries did not arise from his employment.

If the risk was personal, he would have suffered the stroke regardless of his employment. If the risk was neutral, the record did not show that his work duties or the working conditions increased the risk of the stroke.

Clerk’s Claim For Depression Not Barred

Wilson v. Charleston County School District, No. 5475 (S.C. Ct. App. 03/22/17)

Ruling: The South Carolina Court of Appeals held that a clerk’s change of condition claim was not barred by the doctrine of res judicata and was filed within the 12-month deadline.

What it means: In South Carolina, a change of condition claim for depression is not barred by res judicata when the depression was not raised in the worker’s initial claim.

Summary: A data clerk for a school district was a bystander to a fight between two students. The students inadvertently pushed into her and pinned her against a marble countertop, which resulted in injuries to her neck and back.

The clerk received workers’ compensation benefits. Later, she filed a claim alleging a change of condition, asserting that her back injury was affecting her mental health. The clerk had been diagnosed with endogenous depression.

The school district argued that the claim was barred by the doctrine of res judicata and was not timely filed. The South Carolina Court of Appeals held that the clerk’s change of condition claim was not barred by the doctrine of res judicata and was filed within the 12-month deadline.

The doctrine of res judicata ensures that no one is sued twice for the same cause of action. Here, the clerk experienced prior episodes of depression following her husband’s death and an episode related to anxiety.

However, she said that she did not experience significant depression until pain from her back injury increased significantly. No doctor opined that she had work-related depression before the initial hearing.

The court found that the evidence showed that the clerk’s psychological condition worsened after the initial hearing and before she filed her claim alleging the change of condition. The clerk did not raise the issue of depression in her initial hearing. At that time, it had not progressed to endogenous depression. Therefore, the claim was not barred.

The court also found that the clerk satisfied the requirement that a claim be filed within a 12-month deadline. She filed the notice of claim alleging a change of condition within 12 months of her last payment of compensation.

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

Employment Practices


Sexual harassment is a growing concern for corporate America. Risk managers can pave the way to top-down culture change.
By: | March 5, 2018 • 12 min read

The #MeToo and #TimesUp movements opened up Pandora’s Box, launching countless public scandals and accusations. The stories that continue to emerge paint an unflattering picture of corporate America and the culture of sexual harassment that has permeated it for decades.


“The clock has run out on sexual assault, harassment and inequality in the workplace. It’s time to do something about it,” reads the official tagline of Time’s Up, one of the most vocal groups demanding change.

The GoFundMe campaign that supports the Time’s Up Legal Defense Fund raised more than $16.7 million in less than a month, making it the most successful GoFundMe initiative on record.

Funds will be used to help victims of sexual harassment and assault bring legal action against harassers, as well as provide public relations consultation to manage any media attention such suits might attract.

The problem was never really a secret.

In surveys conducted since 1980 by the U.S. Merit Systems Protection Board, 40 percent of women and 15 percent of men consistently reported being sexually harassed at work.

In a sweeping meta-analysis of 25 years’ worth of research data, published in “Personnel Psychology,” an average of 25 percent of women reported experiencing sexual harassment at work. When respondents were given clear definitions of harassing behavior, that figure shot up to 60 percent.

The current climate is just now pushing awareness to the forefront. It was reported last November that law firms in the nation’s capital are seeing a spike in inquiries about sexual harassment cases.

Laura Coppola, regional head of commercial management liability in North America, Allianz Global Corporate & Specialty

In addition, the Equal Employment Opportunity Commission (EEOC) website is seeing visits to its harassment web page double.

There’s no question the costs to businesses can be staggering. Twenty-First Century Fox reportedly incurred $50 million in costs tied to the settlement of sexual harassment and discrimination allegations in its Fox News division, as well as a $90 million settlement of shareholder claims arising from sexual harassment scandals.

In June, the company disclosed in a regulatory filing that it had $224 million in costs during the fiscal year related to “management and employee transitions and restructuring” at business units, including the group that houses Fox News.

If time is indeed up, it won’t just impact Hollywood, Silicon Valley or Capitol Hill. It will impact every workplace, in every industry.

“It affects everybody,” said Marie-France Gelot, senior vice president and insurance & claims counsel for Lockton’s Northeast Claims Advisory Group.

“I think anybody in corporate America — at some point — has seen it or been aware of it or been around it.”

“This particular phenomenon is certainly at a much wider scope than we’ve seen in the last decade or so,” said Laura Coppola, regional head of commercial management liability in North America, Allianz Global Corporate & Specialty.

“This is going to touch many industries, many segments, and many people.”

Employers are beginning to wonder if their workplace could be next.

“I think if you’d been asking [insureds] a year ago, ‘Are you interested in hearing about sexual harassment prevention?’ I think the answer would have been, ‘No, we’re good, we’ve got it,’ ” said Bob Graham, vice president, HUB International Limited.

“But I think now everyone’s saying ‘Sure, yes, we’d like to hear something.’ ”

Leading the Conversation

As American workplaces come under increasing scrutiny, the time is ripe for a large-scale pivot in the way employers manage risks related to sexual harassment.

The co-chairs of the EEOC’s select task force on the study of harassment in the workplace expressed it aptly in 2016:

“With legal liability long ago established, with reputational harm from harassment well known, with an entire cottage industry of workplace compliance and training adopted and encouraged for 30 years, why does so much harassment persist and take place in so many of our workplaces? And, most important of all, what can be done to prevent it? After 30 years — is there something we’ve been missing?”

Experts in the management liability field unanimously told Risk & Insurance® these issues should be elevated to the board level and the C-suite.

“Just as cyber liability shifted rapidly from an IT discussion to a board level discussion, so too will the harassment and discrimination discussion go beyond HR and be elevated to the highest levels,” said Coppola. It will become a corporate-wide, enterprise-wide conversation.

“It’s going to take some time to get to that board level, but it’s going to have to happen,” said Paul King, national practice leader, management and professional services, USI Insurance Services.

“Risk management and HR cannot go down parallel paths, not understanding one another. Not anymore. There’s too much at stake.” — Paul King, national practice leader, management and professional services, USI Insurance Services

Risk managers, said Kelly Thoerig, U.S. employment practices liability coverage leader, Marsh, are well suited to lead this conversation, which means actively partnering with human resources, the legal department, the general counsel’s office and outside counsel.


“Just like the quarterback depends on the offensive line, on receivers, on the running backs, it’s not a one-man show,” said King. “This can’t be the risk manager operating in a vacuum; they have to be liaising with multiple parts of the organization.”

Added King, “Risk management and HR cannot go down parallel paths, not understanding one another. Not anymore. There’s too much at stake.”

Connecting with outside counsel can also be of great benefit to risk managers, said Coppola.

“[They can] provide a very independent objective view of what they see in the overall market and how their knowledge of the individual client’s best practices can be improved and enhanced to ensure that they are protecting employees and the organization.”

Brokers and carriers also may be able to offer insights and services. Unfortunately, that piece is often lost because risk management and HR are siloed.

“The [knowledge of the] services that come with the insurance policy end up with the policy — in a drawer in the risk manager’s office,” said Tom Hams, employment practice liability insurance leader, Aon.

“HR doesn’t know that they exist. Even if they’re just online blogs or something like that, they could be more meaningful to the HR department than they are to risk management.

“So it’s important to make sure that companies are aware they’ve got those tools and — more importantly — to share them internally.”

Expediting Cultural Change

The X factor that underpins every aspect of these efforts is culture, experts agreed.

“It’s not so much ‘does the company have best-in-class policies and procedures in place;’ I think many of them do. I think that a significant change needed is doing a full overhaul of corporate culture, and that’s no small feat,” said Gelot.

Paul King, national practice leader, management and professional services, USI Insurance Services

True culture change can only come from the top level. But that isn’t likely to happen unless everyone at the top understands what the scope of the exposure could be if it’s not addressed appropriately on the front end. And for that, money talks, said Thoerig, who will be presenting on the topic at RIMS 2018 in San Antonio.

“Nothing is more instructive than real tangible claims examples and settlement amounts. Arm yourself with … recent, relevant claims examples specific to the industry and the jurisdictions the company operates in.”

In addition, said King, HR and legal should be regularly feeding claims information to risk managers to share at quarterly meetings of the board and give specific updates around these issues.

Armed with that level of intelligence, top brass can set the goals that will drive all anti-harassment efforts, said experts, putting an emphasis on identifying and correcting behavior that could potentially expose a company to liability.

Better Training and Reporting 

The best anti-harassment programs are multilayered, said Hams, with each facet carefully tailored to suit the employee population, the industry and the organization’s goals. A clearly defined policy is essential, stating that harassment will not be tolerated and neither will retaliation against those who report it.

The policy should be clear that employees are expected to report harassment or unacceptable behavior. Hams said he’s seen companies go so far as to state employees who don’t speak up are in violation of the policy.

“At least it should give them pause to stop and think about what they might have seen before they click the button or sign the document,” he said.

Companies should consider how uncomfortable employees may be about speaking up. An open-door policy is a start.

But there should also be multiple reporting points throughout the organization, said Hams, and an anonymous hotline for those reluctant to bring the matter up with anyone in their chain of command, and a multilingual hotline as well.

An effective training plan will have multiple moving parts and should touch every level of the organization from the executive suite to managers and supervisors to the rank and file. Comprehensive training is especially critical for the managers and supervisors who might receive or investigate complaints.

Many large employers already have training programs that can be considered best-in-class. Small to midsized employers, however, may still be using the cookie-cutter compliance-centric training that has dominated the field for decades.

The goal of this training is to hit all the bases related to Title VII of the Civil Rights Act, ticking off a list of acts or speech that would be considered illegal and affirming the company will not tolerate illegal behavior.

Overwhelmingly though, this type of training misses the mark. Studies have shown that this one-size-fits-all training is ineffective, especially when it’s a rote check-the-box exercise. Employees get the message their employer doesn’t take the subject too seriously.

Worse, it can even aggravate tensions, creating more discriminatory behavior from men who avoid working with women just to eliminate the chance of being accused of anything.

One study even found that men were more likely to place blame on the victim of sexual abuse after they’d received that type of anti-harassment training.

Even at best, compliance-centric training will still fail, because it only addresses behaviors that violate the law. But there is a broad array of behavior that — while not quite illegal — shouldn’t be tolerated.

When this kind of activity is allowed to flourish unchecked, the environment becomes increasingly toxic for those on the receiving end. It also tells employees that the company will tolerate harassment as long as it’s not overly egregious. In that case, it’s just a matter of time before the company is faced with a serious claim.

“Nothing is more instructive than real tangible claims examples and settlement amounts. Arm yourself with … recent, relevant claims examples specific to the industry and the jurisdictions the company operates in.” — Kelly Thoerig, U.S. employment practices liability coverage leader, Marsh

In its 2016 report, the EEOC’s harassment task force recommended changing tactics, exploring alternative training models such as respect-based civility training — what some call professionalism training.


The theory is “if you train them to act in a professional manner, these things tend not to happen at all,” said Hams.

The EEOC also suggested bystander intervention training, which is designed to empower employees to intervene when they witness harassing behavior.

Experts agreed whatever training programs or modules a company chooses, it’s important the training material reflect the workforce and be continuous and regularly refreshed.

A certification scheme also should be put in place to ensure the training is hitting the mark. While the law does not yet require companies to prove the effectiveness of their programs, some suggest it’s only a matter of time before the courts catch up to the problem.

What’s more, said Coppola, it’s simply the right thing to do for companies that want to confirm they’ve created a culture where all employees can expect to be treated professionally.

Zero Tolerance

Gelot and others believe a zero-tolerance policy should be a key component of an effective anti-harassment program.

“There are many companies that have Harvey Weinsteins and Matt Lauers and Kevin Spaceys working in their midst and those people are tolerated. Employees know about them — it’s not a secret.”

Bob Graham, vice president, HUB International Limited

Particularly when the harasser is a high-level executive, companies may wrestle with the decision to look the other way or lose a key rainmaker. In a zero-tolerance environment — one that starts at the top — the decision would be clear.

“What we saw with Matt Lauer and Charlie Rose — they were terminated immediately as the accusations came out. That’s zero tolerance. That’s sending a message to all of the employees within the company that this is completely unacceptable, we won’t tolerate it, and [it] clearly sends a message to the public at large.”

Employers should promote a workplace culture where all forms of harassment and discrimination are unacceptable and reportable, said Gelot. That’s the only way to take the fear and the stigma out of reporting.

That said, the EEOC offers a word of caution on zero-tolerance policies applied militantly without regard for common sense. Employers should hash out the specifics of which acts merit immediate termination versus a warning.

Overzealous application of the zero-tolerance doctrine can backfire if an employee fears her coworker’s children will go hungry if she reports his lewd or sexist jokes.

Creating a Dialogue

As with managing any other exposure that touches everyone, robust sharing of ideas and best practices has the power to improve the risk profile of entire industry sectors.

Facebook raised eyebrows in December, making public its sexual harassment policy in full.

“I hope in sharing it we will start a discussion, both to help smaller companies thinking about this for the first time, and to improve our own practices by learning from other companies,” wrote Lori Goler, Facebook’s global VP of people, about the company’s bold move.


That level of disclosure is making some risk professionals uncomfortable. But others acknowledge the wisdom of it.

“Any time you can share best practices that’s probably a great idea, because no one has all the answers … or at least not all the right answers,” said Graham.

“There’s a reason they did that, and I think it’s for all the right, positive reasons. They want to drive the momentum that is going to reduce or even eliminate what we have seen in corporate America over the last 50-plus years. They want to lead by example, they want to be the model and rightly so,” added Coppola.

“I think we are at a perfect time in our economic environment that allows the evolution of equality in our workplace.”

Part of that should involve making the workplace more egalitarian, said Gelot, and figuring out “how to make female employees not feel ostracized by a ‘boys’ club’ atmosphere, and actively championing the ascension of women into senior rolls.”

“We can’t focus on the past,” said Coppola. “But we can work very hard collectively as a community, and within the insurance industry specifically, to move forward.” &

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