The Law

Negligence Lawsuit Cannot Go Through After Workers’ Comp Award

One Department of Public Works worker found that he could not file a negligence claim against his employer after already receiving workers' compensation.
By: | September 14, 2018 • 2 min read

Victor Campos fell ill during his shift as a Department of Public Works (DPW) employee and decided to head home early to recover.

Campos was working on site at City Hall, and in order to clock out early, he had to return to the DPW to file proper paperwork with his supervisor. Unfortunately for Campos, another city worker, police officer Miguel Cruz, ran a red light and hit Campos’s vehicle on his way to the DPW. Campos filed for workers’ compensation a few weeks later.

He received workers’ comp benefits for the accident. Then, almost two years after the accident, Campos filed a negligence lawsuit against both the city and Cruz. A trial court, however, said the complaint was barred, because Campos already received benefits for his injury and therefore could not sue the others for damages.

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Campos brought the case to appellate court, arguing that he was not acting in the scope of his employment while driving back to the DPW. He said he decided to return to the DPW for his own sake to fill out the paperwork to go home.

He further argued the trial court was wrong in its assessment that his lawsuit was barred by already receiving workers’ comp benefits; he insisted a settlement of his claim did not bar a third-party claim against his employer.

“That plaintiff was not physically at his workplace when the accident occurred is thus of no moment,” said the court. “Indeed, as a DPW worker, plaintiff could have been working in any part of the City when he was involved in the accident.”

The appellate court reviewed the circumstances. They concluded, “[Campos] left [City Hall], not to go home, or to go to lunch, or to accomplish some personal errand. He left the City Hall location to go to the DPW office, to submit paperwork in order to take a half-day off.”

This, the court said, was in the scope of Campos’s employment. The employer’s protocol was to file paperwork if a worker were to leave early.

“That plaintiff was not physically at his workplace when the accident occurred is thus of no moment,” said the court. “Indeed, as a DPW worker, plaintiff could have been working in any part of the City when he was involved in the accident.”

As for Campos’s claim that a settlement did not bar a third-party claim against his employer, the court determined that since Campos received workers’ comp benefits, he could not pursue a negligence claim for damages resulting from the same accident.

Scorecard: Victor Campos cannot pursue a negligence claim against his employer, because he already received workers’ compensation.

Takeaway: When workers’ comp is awarded, negligence claims cannot be pursued for the same incident. Employers need to document each claim to eliminate any doubt in case an employee decides to take further legal action. &

Autumn Heisler is the digital producer and a staff writer at Risk & Insurance®. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

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