We recently blogged a “to and fro” case involving a meandering motorcycle ride back to work from a conference. The cycle crashed and the employee filed for workers comp. The court in Wyoming determined that the accident took place during a deviation from the direct route home and thus was not compensable. Some readers commented that the employee was following his supervisor’s lead, so the injury should have been compensable. “To and fro” often raises issues in the gray zone. Here’s another gray area: coffee breaks.
Jesse Cooper, master plumber and foreman, needed to consult with someone at the union hall in Winslow Township, New Jersey. His contact was teaching a class, so Jesse decided to take a coffee break. He preferred the coffee at a deli some five miles down the road. On his way to a good cuppa, he was involved in a serious accident, breaking his arm and both legs.
Personal Comfort or Personal Errand?
Cooper’s employer, Bernickel Enterprises, argued that the coffee break was a personal errand. Workers comp judge Bradley Henson determined that a coffee break was part of the working day and that Cooper was under the “coming and going” rule while on his way to a somewhat distant cup of joe*. He found the injuries to be compensable.
Henson describes Winslow Township as a “rural area”, so the options for coffee are somewhat limited. In his summary of the case, New Jersey comp guru John Geaney notes that there were other coffee options closer than the deli; the judge, however, “accepted as credible that petitioner knew the deli had good coffee.”
This ruling certainly stretches the parameters of the “personal comfort” doctrine to its outer limits. One wonders when that hypothetical line between work and personal might actually be crossed: if I have a sudden craving for a Caramel Brulee Latte (not likely, mind you) and the nearest Starbuck’s is 15 miles out of the way, am I still “working” when I head in that direction?
The Driving Hazard
These two cases share one important characteristic: both involve accidents while driving, statistically the most dangerous part of the working day. As risk managers contemplate enhancements to safety programs, they would do well to put safe driving near the top of the list.
* Why do they call it a “cup of Joe”? Check this link for a possible if not entirely plausible answer involving a former Secretary of the Navy.
Posts Tagged ‘deviation’
In Search of a Good Cup of Joe
Wednesday, January 20th, 2010To and a Meandering Fro
Tuesday, January 12th, 2010Richard 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.
Compensable Shampoo?
Friday, November 6th, 2009Ginger Wilson works as a librarian in Montgomery County, Virginia. One day she arrived at work, got out of her car and headed for the library entrance. Then she remembered that she had a hair appointment at noon, so she returned to the car and opened the door to fetch a bottle of shampoo. A gust of wind caught the door, which slammed against her. She fell, breaking her wrist.
Compensable under workers comp? Not likely, as the return to the car was a definitive deviation from her work routine – she had already exited the car and was headed toward the library. The fetching of shampoo was a personal errand, having nothing to do with work.
Ah, but this is Montgomery County, home of the $32 million comp problem. Ginger was awarded $5,500 in comp benefits, covering her medical costs and six weeks of lost time.
Associate County Attorney Susan Chagrin (who immediately earns a place on my All Name team for attorneys) has sued Ginger for repayment, asserting that the injury had nothing to do with employment. I’m with Chagrin, but to our mutual chagrin, the county is unlikely to prevail. There is nothing fraudulant in Ginger’s filing a claim. She apparently was completely candid about the circumstances of the injury. The claim was accepted by the adjuster. Getting money back on this one is likely to be as difficult as the proverbial putting toothpaste back into the tube.
I have a few random questions for Montgomery County and for Ginger:
1. Why does a librarian with a broken wrist have to miss 6 weeks of work? Library work is about as light duty as it gets.
2. If Ginger returned to her car for the specific purpose of fetching the shampoo, why is she still in “the course and scope of employment”?
3. According to her testimony, Ginger planned to “eat my lunch while I was getting my hair done.” Excuse me and with all due respect, that is a truly revolting example of multi-tasking.
4. Finally – admittedly a bit off point – why does Ginger have to provide her own shampoo for a hair appointment?
As is so often the case, the best opportunity for controlling the outcome of questionable claims is at the beginning. If compensability is in doubt, adjusters should take aggressive action at the outset. Given the particulars of Ginger’s situation (at least as this article presents them), there was enough evidence to deny the claim when it was first filed. Once accepted as compensable, however, it’s unlikely that the decision could be reversed. Ms. Chagrin, in all likelihood, will remain, well, chagrinned.
