View From the Bench

Workers’ Comp Docket

A round-up of key workers' comp decisions from around the country.
By: | February 16, 2014 • 10 min read
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Driver’s injury during attempt to rescue cat from warehouse is compensable

English v. Compass Group USA, Inc. d/b/a Canteen Vending Services, No. E2012-02732-WC-R3-WC (Tenn. 12/09/13, unpublished)

Ruling: In an unpublished decision, the Tennessee Supreme Court held that a driver’s injury while attempting to remove a cat from the employer’s building was compensable.

What it means: In Tennessee, under the mutual benefit test, if a worker’s deviation from her job duties is for the benefit of the employer, an injury during the deviation arises out of her employment.

Summary: A route driver who serviced snack machines heard a distressed cat at her employer’s warehouse. She wanted to get the cat out of the building, but she was unable to locate a ladder. She stacked crates of soft drinks and climbed the stack of drinks. When she attempted to climb down, the crates collapsed and she fell, injuring her ankle. The driver sought workers’ compensation benefits. The Tennessee Supreme Court held that she was entitled to benefits.

The employer argued that the driver’s injury arose from a personal mission unrelated to her job duties. The court found that the driver’s injury arose out of her employment because her actions in removing the cat provided a benefit to the employer.

The district manager said that the cat’s presence in the building was likely a violation of food safety regulations. The cat could have contaminated food products or damaged equipment. Although the driver was motivated by her personal concerns for the cat, she also had concerns about the employer’s business.

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The court also rejected the employer’s argument that the driver’s claim was barred because she willfully violated its safety rule requiring workers to use ladders for climbing. The driver was aware of the rule and knew it was a safety violation to climb on crates. However, the court found that she had a “valid excuse” for violating the rule. She said she looked for a ladder but was unable to locate one. The ladder she was required to use was inaccessible because it was in the maintenance area to which only maintenance workers had a key. The driver was unable to comply with the rule through no fault of her own. The court found that her conduct was negligent but not willful.

First insurer’s payments did not alter second insurer’s liability for claim

Bolduc’s Case, No. 12-P-1764 (Mass. App. Ct. 12/04/13)

Ruling: The Massachusetts Appellate Court held that an employer’s second insurer was liable for a worker’s benefits.

What it means: In Massachusetts, the insurer covering the risk at the time of the most recent injury causally related to the disability is liable for benefits.

Summary: A worker suffered a compensable back injury. The employer’s workers’ compensation insurer paid the claim. Later, the worker injured his back at work again. The employer had a second insurer at the time of that injury. The first insurer treated the claim as a recurrence of the first injury and resumed payment of benefits. Later, the administrative judge found that the second injury was a new injury and not a recurrence of the first injury. The insurers disputed liability. The Massachusetts Appellate Court held that the second insurer was liable for the worker’s benefits.

The successive insurer rule provides that the insurer covering the risk at the time of the most recent injury causally related to the disability must pay the entire compensation. The second insurer argued that the rule was inapplicable because the first insurer accepted the claim by voluntarily paying the worker. The court rejected these arguments, explaining that the fact that the first insurer initially evaluated the claim as a recurrence did not alter the liability of the second insurer. The court also noted that once the first insurer paid the claim as a recurrence claim, it would not have been permitted to suspend its payments without further order of the Industrial Accident Reviewing Board. The first insurer’s assumption of payment did not constitute a waiver of its right to contest coverage with respect to the second insurer.

The second insurer also argued that the first insurer and the worker agreed that the first insurer was responsible. The court found that the first insurer’s decision to pay compensation was not a binding agreement that the first insurer was responsible for the injury.

Manager fails to prove robbery was abnormal working condition

Murphy v. Ace Check Cashing Inc., 28 PAWCLR 207 (Pa. W.C.A.B. 2013)

Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s decision finding that a manager, who was confronted by an assailant with a gun during a robbery of the employer’s business, failed to establish that her psychological injury was due to an abnormal working condition.

What it means: In Pennsylvania, to recover benefits for a psychic injury, the worker must show that she suffered a psychic injury and that the “injury is other than a subjective reaction to normal working conditions.”

gun resizeSummary: The board affirmed the WCJ’s finding that a general manager of a check cashing business, who was confronted by an assailant with a gun during a robbery, failed to establish that her psychological injury was due to an abnormal working condition. The evidence showed that the manager had training in anticipation of a robbery and that there had been previous robberies, including a robbery where the manager’s son-in-law was murdered. Therefore, an armed robbery was foreseeable or could have been anticipated, thus taking the armed robbery out of the realm of an abnormal working condition for the manager’s job. As a result, the WCJ did not err in finding the manager failed to establish her injury occurred as a result of an abnormal working condition.

The board also found that the WCJ correctly declined to treat the case as a physical/mental injury because the manager failed to establish she was physically injured during the robbery.

Player fails to score California jurisdiction for cumulative injury

Federal Insurance Co. v. Workers’ Compensation Appeals Board, No. B249201 (Cal. Ct. App. 12/03/13)

Ruling: The California Court of Appeal held that it did not have jurisdiction over a player’s claim based on a cumulative injury.

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What it means: In California, the Division of Workers’ Compensation has jurisdiction of claims involving injuries that occurred outside of California where the injured worker was a resident of the state at the time of the injury and the contract of hire was made in the state.

Summary: A professional basketball player sustained knee injuries. She received workers’ compensation benefits in Connecticut for a knee injury. Later, she filed a workers’ compensation claim in California, alleging a cumulative injury. The player had never lived in California or played for a team based on California. In one season, she played 34 games, one of which was in California. She had signed her contract in New Jersey. The player’s employer and its insurer argued that California did not have jurisdiction over her claim. The California Court of Appeal held that it did not have jurisdiction.

The court explained that if an employer or insurer is subject to workers’ compensation law of a state that does not have a sufficient connection to the matter, they are deprived of due process. The player argued that because her injuries were cumulative, the single game she played in California contributed to her injuries and disability. The court disagreed, finding that the effects of participating in one of 34 games did not amount to a cumulative injury warranting California jurisdiction. The court found that the player’s disability did not arise when she played one game in California but when she retired. The court also pointed out that the player continued to play games after she played the one California game.

The court found that the places of the player’s injuries, employment relationship, employment contract, and residence did not have any relationship to California.

Clerk injured in altercation with coworker wins benefits

Thompson v. York Chrysler, No. 93A02-1302-EX-153 (Ind. Ct. App. 11/26/13)

Ruling: The Indiana Court of Appeals held that a clerk was entitled to benefits for his injuries arising out of a workplace assault by a coworker.

What it means: In Indiana, an injury from an assault by a coworker can be compensable. However, the worker who was the aggressor in a fight is not entitled to compensation.

Summary: A parts clerk for a car dealership had a preexisting cardiac condition. A service technician went to the parts department to obtain a part. After the clerk told him it was unavailable, the technician began verbally attacking him, which the clerk believed affected his heart. The clerk obtained authorization to leave work early and walked through the shop to his truck. The technician approached him again and continued the altercation. The clerk claimed that the technician placed his hands on the clerk’s chest and knocked him down. The clerk sought treatment at a hospital and eight months later sought counseling for a psychological injury. He sought benefits. The Indiana Court of Appeals held that he was entitled to benefits.

The court concluded that the clerk’s injuries occurred in the course of his employment. At all of the relevant times, he was “within his period of employment.” The court found no evidence that the shop was not a reasonable place for the clerk to be as he was leaving work. The physical interaction stemmed from the work-related verbal altercation.

The court also found that the clerk’s injuries arose out of his employment. The court explained that the confrontation between the clerk and the technician stemmed from their work relationship.

Also, evidence that the technician started the verbal rampage indicated that the technician was the initial aggressor. An injury from an assault by a coworker can be compensable. However, compensation cannot be awarded to the worker who is the aggressor of the altercation. Because the clerk was not the aggressor, he was entitled to compensation.

Worker’s injury while performing humanitarian act is compensable

Auction Empire, L.L.C. v. Industrial Commission of Arizona, No. 1 CA-IC 13-0017 (Ariz. Ct. App. 11/26/13, unpublished)

Ruling: In an unpublished decision, the Arizona Court of Appeals held that a sign holder was entitled to benefits for his injuries.

What it means: In Arizona, a worker’s injury while performing a humanitarian act can be compensable if the origin of the risk is neutral.

Summary: A sidewalk sign holder was given a six-foot sign and the location of the street corner where he would stand. While standing on the street corner, he observed a car stalled in the middle of the intersection. The sign holder was concerned that the car or its driver would get hit, so he proceeded into the intersection to help the driver move the vehicle out of the road. He was struck by a car and sustained serious injuries. He sought workers’ compensation benefits. The Arizona Court of Appeals held that he was entitled to benefits.

The administrative law judge said it was “natural and probable” that the sign holder would stop and help move the driver’s vehicle to safety. The ALJ also found the sign holder’s conduct was “reasonable under the circumstances” even without consent from the employer. The court rejected the employer’s argument that the sign holder did not act in a reasonable manner, pointing out that he perceived that an emergency existed.

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The court also rejected the employer’s argument that the positional risk doctrine did not render it liable for the sign holder’s injuries. The court found that the origin of the risk was not personal. The accident occurred during the sign holder’s work hours and in a place where he could reasonably have been expected to be. His employment placed him at a time and place where he could come into contact with a stalled vehicle. The court said that being struck by a vehicle running a red light while performing a humanitarian act is neither work-related nor wholly personal, so the origin of the risk was neutral.

Driver’s violation of safety rules topples widow’s claim for benefits

Carten v. MBI, No. W2012-01507-SC-WCM-WC (Tenn. 11/14/13, unpublished)

Ruling: In an unpublished decision, the Tennessee Supreme Court held that a driver’s widow was not entitled to death benefits.

What it means: In Tennessee, death benefits will not be awarded when the worker’s death was a result of his “willful misconduct” or “willful failure to use a safety device.”

Summary: A front-end loader accidentally pushed a truck driver and a large pile of trash into the trailer of a truck. The driver died of “traumatic asphyxiation.” His widow sought workers’ compensation death benefits. The employer alleged that the widow was precluded from receiving death benefits because the driver’s death resulted from his willful misconduct and his willful refusal to use a safety device. The Tennessee Supreme Court held that the widow was not entitled to death benefits.

The employer’s work rules required drivers to wear a hard hat and a yellow safety vest. The rules prohibited workers from scavenging items from the waste. Workers were also forbidden from crossing the tipping floor. The driver had worn a “ball-type hat” and a dark jacket over his safety vest. He had walked across the tipping floor and asked others if they wanted a cowboy hat. The widow conceded that the driver had actual notice of the safety rules, understood the danger in violating the rules, and lacked a valid excuse for violating the rules.

The parties disputed whether the employer proved a “bona fide enforcement” of its safety rules. A number of workers indicated that drivers regularly scavenged on the tipping floor and were never disciplined. The majority of the workers were aware that scavenging or being on the tipping floor was prohibited and could result in discipline.

A manager said that he had reprimanded third-party workers for scavenging. Another supervisor said that when he saw workers on the tipping floor, he instructed them to leave the floor. The court concluded that the employer established that the driver’s death was the result of his willful misconduct and willful failure to use a safety device.

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]

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The R&I Editorial Team can be reached at [email protected]