You Be the Judge

Is Worker’s Death by Lightning Strike Compensable?

An employee is killed by lightning outside his place of work. Is the employer obligated to pay survivors' benefits?
By: | May 2, 2014 • 2 min read

A worker for Shelby Industries asked his supervisor if he could leave work early to tend to some personal business. The worker was given permission, and he clocked out. He exited Shelby’s building but remained on its property to wait for his daughter to pick him up. A thunderstorm was approaching.

Three minutes after the worker clocked out, Shelby’s vice president heard a scream from the parking lot. The worker was found lying face down outside near a large oak tree, which was in the vicinity of a metal building. He had been struck by lightning. The worker died two days later from his injuries.

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The worker’s estate filed a claim for death and survivors’ benefits. Shelby denied the claim, arguing that the worker’s injury and death were not work-related.

The administrative law judge found that the estate was entitled to benefits, concluding that the claim was not barred by the coming and going rule. The ALJ found that the positional risk doctrine applied, explaining that a Federal Emergency Management Agency fact sheet stated that during a thunderstorm, one should avoid anything that would be considered a “natural lightning rod” such as a tall, isolated tree and “anything metal.” The court of appeals affirmed the ALJ’s award, reasoning that Shelby had no control over the lightning, but control over the instrumentality of the injury was not a determinative factor of whether a worker was entitled to benefits. Shelby appealed.

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How the court ruled: The court explained that in most lightning strike cases an increased risk test is applied to determine whether the injury is work-related. The court found that the ALJ properly found that the worker was placed in an area of increased risk due to the presence of a metal building and tall tree.

A is correct. In an unpublished decision, the Kentucky Supreme Court held that the worker’s estate was entitled to death and survivors’ benefits. Shelby Industries, LLC v. Estate of Larsh, No. 2012-SC-000031-WC (Ky. 03/20/14, unpublished).

B is incorrect. The court found that although Shelby did not have any control over the lightning, due to his employment, the worker ended up in an area that increased the likelihood of a lightning strike.

C is incorrect. The court found that the coming and going rule did not prohibit the estate from receiving benefits. The worker’s injury occurred on Shelby’s property. There was no evidence that the worker deviated from normal coming and going activities. He clocked out three minutes before he was struck by lightning while he was outside waiting for his daughter to pick him up. While the worker could have remained inside to wait for his daughter, the court found no evidence that his decision to go outside was a substantial deviation.

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

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]

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]