The Law

A Ranch Hand Was Mauled and Killed by a Bull. The Lack of WC Benefits Left His Family Fighting in Court

One rancher failed to provide workers' compensation for the family of a deceased employee, so the family turned to the legal system.
By: | September 28, 2018 • 2 min read

At a ranch in Fayette County, Texas, ranch hand Raul Amparo Zuniga Ortiz Jr. was tasked with moving a herd of 20 cattle from one pasture to another. Within the herd were one calf and one bull.

What was considered a typical task for Zuniga soon took a turn for the worse. The bull charged Zuniga, fatally wounding him. Zuniga’s family was devastated. Making the tragedy worse, the ranch owners, Conway and Marlene Waak, did not carry workers’ compensation insurance for their employees.

The Zunigas took the Waaks to court.

The family sought to recover damages for Zuniga’s personal injuries and death, asserting wrongful death and survival claims in the suit’s petition. They claimed negligence on the Waaks’ part, because the ranch owners failed to provide proper safety equipment and coverage.

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The Waaks filed a partial motion for summary judgment, arguing the incident fell under and was protected by the Farm Animal Activities Act (FAAA). This act provides liability for injuries arising out of certain farm activities in the form of a waiver of liability.

The FAAA also states it does not apply to employees. The Waaks used this to form their case, and, in turn, argued Zuniga was only an independent contractor.
Zuniga’s family countered, holding to the fact that Zuniga was indeed a “farm and ranch hand” under the employment of the Waaks.

A trial judge granted summary judgment to the Waaks, bringing the case to appellate court. Despite the Waaks’ continued claims that Zuniga and two of the other ranch hands were independent contractors, the appellate court reversed the trial court’s decision and remanded the case. In its research, the court found that in addition to Zuniga, the Waaks employed three other ranch hands at the same time and did not provide workers’ compensation to any of them. Under the Texas Workers’ Compensation Act, the Waaks were not required to provide such benefits if they had less than three workers. But together, they had four.

Scorecard: The Zuniga family’s case will proceed to court, due to questions bearing on Zuniga’s scope of employment and the Waaks’ duty of ordinary care as employers.

Takeaway: Businesses, especially in industries where strenuous work is part of the job, should invest in workers’ compensation insurance. Protecting employees is part of an employer’s due diligence.

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]