Posts Tagged ‘course and scope’

In Harm’s Way: A Non-Compensable Fall

Monday, November 28th, 2011

Geoffrey Hampton worked as a laborer for Intech Contracting LLC. Hampton, an insulin dependent diabetic, was working with a crew on September 9, 2009, repairing a bridge in Muhlenberg KY. Hampton suddenly uttered a profanity and walked to the edge of the bridge. He climbed over a 4 foot barrier and fell 60 feet, suffering permanent injuries.
Hampton has no memory of the incident. His co-workers testified that he had been complaining about not feeling well; that he had taken a snack of sweets to adjust his blood sugar; and that the fall did not appear to be an act of suicide.
Hampton was certainly “in the course and scope” of employment, but the question for the courts was whether his injuries arose “out of” employment. The Appeals Court found that his idiopathic condition – diabetes – was the likely cause of his actions and that his extensive injuries did not arise “out of” employment. As a result, Hampton was unable to collect workers comp.
It’s important to note that Hampton’s employer took specific steps on that fateful evening to remove Hampton from harm’s way:
– When he requested time for a break to adjust his blood sugar, they immediately consented.
[NOTE: Hampton had inadvertently left his insulin at the hotel room.]
– When Hampton complained about not feeling well toward the end of the shift, he was told to sit in the truck. He left the truck and walked toward the bridge rail on his own.
Not All Risk is Work-Related
The court noted that Hampton’s diabetes was not under control, which certainly raises the issue as to whether it was safe for him to perform this kind of work; if the employer had awareness of the medical condition, they should have required a note from Hampton’s doctor that it was safe for him to perform the essential job duties.
The court implies that there were circumstances where an injury might have been compensable: for example, if Hampton had been working near the edge of the bridge and had experienced a black out due to hypoglycemia, he would likely have been eligible for comp benefits. However, if it could be proven that the black out was the result of his own negligence in attending to his illness, perhaps the claim would still have been denied.
But Hampton was sitting in a truck, safe and secure, with no unusual risks or exposures. He was clearly out of harm’s way. There is no way of knowing why he did what he did, but it is clear that work had nothing to do with it. When he went over the rail of the Muhlenberg bridge, he gave no thought to the workers comp safety net that usually covers his every working moment. The findings of the court are both harsh and fair. For Geoffrey Hampton, the fateful date of 9/09/09 will resonate every moment of his diminished life.

Compensable Sex, Down Under?

Thursday, July 28th, 2011

When employees travel overnight for their employers, workers comp may expand into 24 hour coverage. Work put you on the road; comp covers you while you are working.
An unnamed (for soon to be evident reasons) woman in Australia has filed a workers comp claim for injuries incurred during sexual activity while on a business trip. She was having sex with a man (not that that matters) when a glass light fitting came away from the wall above the bed. The light struck her in the face, leaving her with injuries to her nose, mouth and a tooth, as well as “a consequent psychiatric injury”. The relative positions of the man, the woman and the light are not detailed in either of two newspaper articles, one in the Sydney Morning Herald and the other in the Herald Sun.
The woman’s lawyers argue that being injured while having sex “during an interval or interlude within an overall period or episode of work” was no different to being hurt while carrying out other recreational activities – some recreational activities evidently being “higher risk” than others.
Course and Scope
But Australia’s ComCare, which says the woman was having sex with “an acquaintance, who had no connection with her work”, will argue “neither legal authority nor common sense” could lead to a finding that the injury was sustained during the course of her employment. This implies, of course, that had the man been a work acquaintance, the injury might have been compensable. Hmmm. The devil, as always, is in the (salacious) details.
From the American litigation perspective, it might seem more logical to sue the hotel or the light manufacturer. But as Australia’s comp law – unlike the American statutes – does allow compensation for pain and suffering, a liability claim might not add anything to the potential payout.
In the final analysis, this incident stands as a stark example of the dangers of mixing business and pleasure. In her expansive notion of the “course and scope of employment,” the anonymous claimant has literally brought the workers comp system into the (hotel) bedroom, where it rarely resides. We await with great interest the final resolution of this intriguing case from down under.

Risk, compensability, mousing elbow, medical costs, and other news briefs

Wednesday, May 18th, 2011

Cavalcade of Risk – Emily Holbrook is hosting the 131st edition of Cavalcade of Risk at one of our favorite risk-related blogs, Risk Management Monitor. Check it out!
Compensability issues – In disputes as to whether an employee’s injury or illness is eligible for benefits, courts look at the issues of whether the injury arose in the course and scope of employment. Roberto Ceniceros posts that while course and scope have generally been regarded as a single doctrine, that may be changing with the challenges posed by an increasingly mobile work force. See his blog post: “Course and scope” separated.
Safety for the solitary worker – Speaking of a mobile work force, do you have workers who work alone? Solitary work poses unique safety challenges. See Safety Daily Advisor’s tips for keeping solo workers safe.
Claims IT systems webinar – Health Strategy Associates has an upcoming webinar that may be of interest to some of our readers: the results of HSA’s First Annual Survey of Workers Comp Claims IT Systems. If the sponsoring organization’s name isn’t familiar to you, it’s our fellow blogger and friend Joe Paduda’s firm – he’s sponsoring the seminar in conjunction with colleague Sandy Blunt. If this interests you, act now – the webinar is scheduled for tomorrow!
Mining safety, one year later – On last week’s anniversary of the West Virginia Big Branch mine disaster that claimed 29 lives, the looks at progress – or lack of progress – in enhancing miner safety: Families of dead miners feel let down by Washington. The story reports that in the past year, a safety bill has failed and the backlog of safety cases has grown.
Top HR issuesWorkforce covers the top 10 HR concerns as reported by the Employers Resource Association. These issues are compiled from the more than 8,000 hotline calls made by the organization’s membership of 1,300 companies in Ohio, Kentucky and Indiana.
Mousing elbow – As we incorporate more and more devices in our work-world, technology-related maladies seem to multiply. Greg LaRochelle of the MEMIC Safety Blog talks about Mousing Elbow and how to prevent it. See also Blackberry Thumb, Cell Phone Elbow, IPod Ear. Also, see our ergo tips for setting up a workstation.
Medical costs – Can making physicians aware of the costs for procedures help to curtail costs? Katherine Hobson of WSJ’s Health Blog reports on an interesting research project that showed a decrease in expenditures for routine lab tests when physicians were made aware of the overall costs for such procedures: “Cosimi tells the Health Blog the study represents “a good first step, just to show that there’s a problem, and a potential solution.” The goal would be to establish guidelines for proper testing. And he says it’s not just blood work that could benefit from this kind of approach. At his own transplant unit, he noticed changes in prescribing behavior simply by posting the very different costs of two similar antibiotics.”
Hidden costs – We all know the health risks of smoking and that smoking can contribute to comorbidities that hinder worker recovery. But there are lesser known risks that can contribute to claim costs, In PropertyCasualty360, Zack Craft of Total Medical Solutions talks about how smoking can damage sensitive medical equipment too, and a factor that adjusters should consider.
Wage & hour violations? There’s an app for that – If you feel like your employees are tracking you, they may well be. Employment attorney Michael Fox posts about the Department of Labor’s new timesheet i-phone app, which is intended to help employees track the hours they work and the wages they are owed. The DOL says that, “This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.”

Pot Smoking with Bears: Stupidity is (Still) Compensable

Friday, April 1st, 2011

We last encountered Brock Hopkins back in June of 2010, when he had secured workers comp benefits for severe injuries incurred while feeding bears. He was a bit stoned at the time. Russell Kilpatrick, owner of Great Bear Adventures in Montana, contended that Hopkins was a volunteer. Judge Jeremiah Shea found in Hopkins’s favor. Now the Supreme Court of Montana has weighed in, finding that Judge Shea got it right.
There were three major issues in determining compensability: whether Hopkins was an employee; whether he was in the course and scope of employment when attacked; and whether his marijuana use precluded payment of benefits.
Hopkins frequently worked in the park, performing minor repairs and, yes, feeding the bears.The pay was informal, but Kilpatrick would slip him some money now and then. This “exchange of money for favors” is, well, employment. Thus, Hopkins was an employee, working under the admittedly informal and ad hoc supervision of the laid-back Kilpatrick.
While it is not clear that Kilpatrick wanted the bears fed on the fateful day, he did not tell Hopkins not to feed them. And as Judge Shea deadpanned in his ruling: “…presumably, customers are unwilling to pay cash to see dead and emaciated bears.” Hopkins, in other words, was working when he mixed up the feed, set down his marijuana pipe on a fence post and entered the enclosure.
Finally, the judge opined that smoking marijuana while working among bears was “ill-advised to say the least and mind-bogglingly stupid to say the most,” being high was not a factor in the attack. Red, the attacking bear, was an “equal opportunity mauler” and likely would have gone after anyone, stoned or sober.
So Brock Hopkins, a loser by most accounts, wins in the courts. He collects indemnity for his (considerable) troubles and has all his extensive medical bills paid through the Montana uninsured fund. Kilpatrick’s legal woes continue, as he did not carry workers comp insurance for the employees he didn’t think he had. So much for clear thinking in the good mountain air of Montana.

In the Midst of Mayhem

Tuesday, January 11th, 2011

A deranged man with a high-powered handgun in Tucson, Arizona, has killed six people and wounded many others. We will never really understand what drives an individual to plan and execute this kind of action, just as we cannot fathom why a man (or woman) would in the name of religion strap explosives to their bodies and kill themselves and as many innocent victims as possible. Belief systems are powerful motivators; demented beliefs can bring about appalling results. In these trying times, as the poet Yeats put it, “everywhere the ceremony of innocence is drowned.”
Today we limit our meditation to the role of workers compensation in this incidence of mayhem. Congresswoman Gabrielle Giffords (D-AZ) was holding an informal “Congress on the Corner” gathering outside an ironically named Safeway Supermarket, when Jared Loughner walked up behind her and shot her in the head at point blank range. Somehow, she has survived to this point. One of her aides, Gabe Zimmerman, was killed. For what it’s worth, both are covered by workers comp, as they were “in the course and scope of employment.” A number of Giffords’s volunteers were also injured: their medical bills will likely be covered by comp, but they probably will not receive any indemnity benefits. Innocent bystanders are on their own: whether employed or not, their jobs did not bring them to that fateful location.
Federal Judge John Roll, who was killed, is a special case. The justice department will try to prove that his attendance at the event was an official act: that rather than just casually dropping by to see his friend, Rep. Giffords, he was “in the course and scope of employment” when he left his nearby office to attend the meeting. Why? It is surely not workers comp that concerns the feds; they want to include the murder of Judge Roll in the federal charges against Loughner and can only do so if the judge was technically on the job at the time he was assassinated. (Ironically, the judge had received death threats due to recent rulings.)
The Politics of Mayhem
Some have drawn a direct link between Loughner’s actions and the inflammatory rhetoric of recent political campaigns. When politicians talk of “second amendment solutions” to ideological differences, they are referencing guns. By placing a cross-hair image over an opponent’s photo, they raise the specter of assassination. Based upon the limited evidence of Loughner’s web postings, his actions are likely the result of internal demons. His links to the real world were tenuous at best. He may have thought his actions were political, but like his brethren the suicide bombers, any intended political message is subsumed and ultimately obliterated by sheer madness.
This is by no means the first time that humanity has been confronted with such images of meaningless depravity. Yeats published “The Second Coming” in 1920, just a couple of years after the end of the first world war – the “war to end all wars.”

Things fall apart; the center cannot hold;
Mere anarchy is loosed upon the world.

There was much anarchy then, much anarchy to follow in the dark days of the second world war and, alas, much anarchy in our time.

To and a Meandering Fro

Tuesday, January 12th, 2010

Richard Selest worked for the state of Wyoming Department of Transportation. He was asked to attend a training session 100 miles away from his office. Given the nice June weather, Richard, his supervisor and a co-worker decided to ride their motorcycles. (This surely would not have been an option in January!) On the way back to the home office, they discussed taking a scenic route, but no final decision was made. When they arrived at the intersection for the scenic road, the supervisor, riding in front, turned off. Richard and the co-worker followed. In the course of the ride, Richard lost control of his motorcycle and suffered serious injuries. Compensable under comp?
Richard’s claim was initially denied on the theory that the scenic route – 50 miles longer – was a deviation from the road back to the office and thus not compensable. Richard countered that his supervisor approved the deviation and that he was not on any specific “personal errand.” He merely was going back to his office, albeit in a meandering fashion.
The case, like the scenic road, wended up to the Wyoming Supreme Court, where Richard once again lost. The court found that the choice of a scenic road was purely personal and a clear deviation from the “course and scope” of employment. Even though Richard had no specific goal in taking the longer road, and even though he was in fact heading back to the office, the deviation in route was substantial, thus taking him outside of comp’s protective umbrella.
One justice dissented, but I think the majority acted appropriately. Despite the fact that Richard was paid for the entire trip (which took one hour longer than the direct road) and despite the fact that he followed his supervisor’s lead, the deviation had nothing whatsoever to do with work. As all good claims adjusters know, this is a matter of reading a map: the presumptive route to the office is a (relatively) straight line. Richard and his co-workers were seduced by the curvy call of nature, for which poor Richard has had to pay a very steep price.

MA Supremes: teacher chaperoning ski trip due workers comp

Tuesday, December 15th, 2009

In a recent decision that shouldn’t be too surprising to those who follow workers’ comp compensability issues, the Massachusetts Supreme Court recently upheld a decision by the Department of Industrial Accidents to grant workers compensation benefits to Karen Sikorksi, a Peabody teacher injured while chaperoning high school kids on a 2004 ski trip. The City of Peabody had contested the award on the basis that she was a volunteer engaged in a recreational activity.
We’ve seen many of these cases and the decision often hinges on the voluntary nature of the activity. In this case, the city of Peabody probably thought they were well within the law in denying benefits. According to Insurance Journal, the Massachusetts legislature added a little twist to the workers’ comp statue in 1985, when it excluded “… any injury resulting from an employee’s purely voluntary participation in any recreational activity, including but not limited to athletic events, parties, and picnics, even though the employer pays some or all of the cost thereof.”
Note the adjective “purely.”
When is a volunteer really not a volunteer? Usually, when an employer encourages the employees to participate in said activity. (Everybody who has ever been an employee is likely familiar with the concept of so-called voluntary recreational activities – non-participation can be a career-limiting option.) According to reports, the Peabody school administration has historically expected teachers to become involved with the school’s extracurricular activities and, in this particular case, the school principal and the ski club adviser solicited teachers to serve as chaperones. In Sikorski’s case, the Supreme Court justices unanimously found that she was “acting in the course of her employment” and not in a recreational activity as described in the law. The court found that her responsibilities as chaperone were “…essentially the same ones teachers must exercise while working in the school building during school hours.” Chaperones were expected to supervise students both in the lodge and on the slopes.
Another common criteria that courts use is in determining whether an activity is “voluntary” is how beneficial it is to the employer and whether it furthers the employer’s interests. In this case, the court found that it did: “…the ski club’s trips benefited the city by furthering the school’s educational mission.”
Of course, nothing is ever simple with workers’ comp – there are 50 different flavors, so every state law may have its own particular nooks and crannies related to these issues. Andrew G. Simpson has an excellent article on ‘Forced Fun’ and related workers’ compensation problems, in which he discusses variations in state laws.
Other posts related to the issue of “mandatory fun”:

California Comp: Personal Responsibility?

Monday, October 5th, 2009

Fernando Martinez worked for the D. H. Smith Company, as did his two sons. The company provided Martinez and his sons a Ford F350 flatbed to drive to and from work. Because Martinez did not have a driver’s license, only the sons were to operate the vehicle. In June 2007, Martinez and his sons were on their way to a construction site, with the elder Martinez behind the wheel. Martinez rear-ended another vehicle on the freeway, injuring himself and his son. At first, Fernando and his son lied to the investigating officer from the Califomia Highway Patrol about who was driving the company truck. However, marks on their bodies from their seatbelts showed that Fernando was driving and his son was a passenger at the time of the collision. They eventually fessed up to the fact that Fernando was driving.
Both filed workers comp claims. There is no doubt that the son’s injuries are compensable. But what about Fernando?
At first, Fernando’s claim was denied. Here is an excerpt from the initial ruling:

After consideration of all of the evidence, testimony at trial and in deposition, and the demeanor of witnesses, it was found that applicant’s conduct in driving the company truck to work without a driver’s license, against the express orders of the employer, was a cause of the injury, and takes the activity in which the injury occurred outside the course of employment. The conduct of driving the company truck on public highways against the express order of the company was more than the manner of performing duties. It was different duties than he was employed for. It appears that applicant did drive the truck before his sons were licensed, contrary to the testimony of defendants. However, on the evidence it is clear that he was not allowed to drive after they were licensed, and he and his sons were well aware of that…Applicant’s conduct in this case posed an increased hazard to his own safety and life, to that of his son and members of the public, and greatly increased the risk of liability to the employer for damage to property and injury.

Sounds reasonable, but remember, this is California. The review board overturned this decision. They found the injuries to Fernando were compensable, as he was in the course and scope of employment and furthering the interests of the employer, even though he was disregarding the employer’s instructions pertaining to his driving.
Golden State Precedents
The review board cited some fascinating cases to support their contention that the injuries were compensable:

Benefits not barred for injury incurred following a high-speed chase through heavy traffic after employee had run a red light [Williams v. Workmen’s Comp. Appeals Bd. (1974)];

Bus driver who sustained injury as a result of nearly hitting an oncoming vehicle while recklessly driving his bus not barred from recovering workers’ compensation benefits for the injury [Westbrooks v. Workers’ Comp. Appeals Bd. (1988)]

With precedents like these, it would be hard to come up with a case where employee misconduct resulting in an injury was not compensable. In California at least, virtually anything you do at work is compensable.
The review board goes on to say:

In this case, it does not matter that applicant may not have been authorized by defendant to drive the truck because his travel to the job site in the truck was authorized by the employer and was of benefit to the employer.

A distinction must be made between an unauthorized departure from the course of employment and the performance of a duty in an unauthorized manner. Injury occurring during the course of the former conduct is not compensable. The latter conduct … does not take the employee outside the course of his employment.

It is apparently not a concern to the review board that the “unauthorized manner” in this particular case involves an illegal activity (driving without a license).
The End of “To and Fro”?
Finally, California has interpreted the “coming and going” rule in the most generous manner. In most states, commuting “to and fro” is generally not compensable, even when the employee is operating a company vehicle. The workday usually begins at the worksite. Not in California: “When the employer provides the means of transportation, the course of employment begins when the employee begins to travel.”
NOTE to CA employers: you may want to bag it on the company cars.
Workers comp costs in California are the highest in the country, despite the fact that employee benefits are relatively stingy. The high costs derive from many factors, one of which is revealed in this particular case. There are embedded in case law deeply rooted concepts that tilt the interpretation of compensability in the direction of injured employees. In many states, defense could certainly raise the issue of whether Fernando’s insistence on driving the truck without a license crossed the line into “serious and wilful misconduct.” You know, the concept of personal responsibility. That might be a reasonable argument in some states, but it doesn’t hold any water in California.