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Christina Lumbreras

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com

You Be the Judge

Is Accident After Holiday Lunch Compensable?

For an accident related to a social event to be compensable, courts say the event must benefit the employer in some way.
By: | September 10, 2014 • 3 min read
You Be the Judge

A supervisor for the Department of Public Safety sent emails inviting employees to attend a holiday lunch at a public restaurant “to celebrate the department’s hard work.” Attendance was voluntary, and attendees were required to pay for their own meals, though they benefitted from a group discount offered by the restaurant. Two technical support analysts decided to attend the holiday lunch and rode to the restaurant in a state-owned vehicle, which had been signed out by a coworker.

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Less than half of the employees who were invited attended the lunch. Attendance was not taken at the lunch, and no awards were presented. No formal speeches were given at the lunch, but three supervisors made brief remarks welcoming the attendees and thanking them for their service.

After the lunch, while the analysts were traveling on a public street toward their workplace, the coworker who was driving encountered a patch of ice and lost control of the vehicle. The vehicle crashed into a tree. One analyst was paralyzed from the chest down. The other analyst sustained a concussion and some cuts and bruises.

The analysts sought workers’ compensation benefits. The Industrial Commission concluded that their injuries did not arise out of or occur within the course and scope of their employment. The analysts appealed.

Poll Question

Was the commission correct in denying benefits to the analysts?

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The analysts argued that in selecting the location and date of the lunch, the department increased their risk of having a motor vehicle accident. The court explained that the increased risk analysis did not apply where a worker voluntarily attends a social event which itself does not arise out of the employment and is injured due to a risk that is common to the public while traveling on a public road to the event.

A is incorrect. For a social event to be considered a benefit to the employer, the benefit must not be “merely in a vague way through better morale and good will but through such tangible advantages as having an opportunity to make speeches and awards.”

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C is incorrect.The court found the fact that the analysts were riding in a vehicle provided by the department did not bring the accident within the “contractual duty” exception to the coming and going rule. The transportation to the lunch was not “an incident of the contract of” their employment but was provided as an accommodation.

How the court ruled: B.The North Carolina Court of Appeals held that the analysts were not entitled to benefits. Graven v. North Carolina Department of Public Safety, No. COA14-6 (N.C. Ct. App. 07/29/14).

The court found that any benefit to the employer was de minimis. The court pointed out that no awards were handed out at the lunch, the supervisors’ remarks did not rise to the level of a speech, and employees paid for their own meals. The court concluded that the lunch was for the benefit of employees.

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 riskletters@lrp.com
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The State of the States

Regulatory Review

A round-up of nationwide regulatory changes affecting the workers' compensation industry.
By: | September 4, 2014 • 4 min read
NY Capitol

Arizona

Evidence-based treatment guidelines

The Industrial Commission proposed a process for the use of evidence-based treatment guidelines to treat injured workers. The guidelines reduce delays in providing workers with reasonably required medical treatment. The guidelines only apply to the management of chronic pain and the use of opioids for all stages of pain management. Regarding a request for pre-authorization, the expectation is that a payer should be able to communicate a decision within five business days.

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Reasonable medical care may include deviations from the guidelines. To support such a request, a provider must produce documentation and justification that demonstrates a medical basis for departing from the guidelines. The guidelines state that a payer cannot deny a request for pre-authorization solely because the guidelines do not address the requested treatment or services.

California

Hospital outpatient departments

The Division of Workers’ Compensation adopted an amendment to the hospital outpatient departments and ambulatory surgical centers fee schedule section in the official medical fee schedule. The regulation transitions hospital outpatient department facility fee allowances currently paid under the physician fee schedule to be paid a resource-based relative value scale facility fee. The rule makes the alternative payment methodology inapplicable for services rendered on or after Sept. 1. The rule also adjusts the Medicare multiplier to conform to changes in Medicare’s payment rules regarding the additional percentage added for outliers. The amended regulation goes into effect on Sept. 1.

Florida

Expert medical advisors

The Division of Workers’ Compensation proposed amendments to a rule regarding expert medical advisors. The amended rule includes the introduction and modification of certain definitions related to EMA certification and revises the documentary requirements that must be met to support an application for certification. The rule provides a process for online filing of certification applications and establishes an EMA tutorial for applicants. The rule allows the division to select and assign temporary EMAs, as needed by the division in fulfillment of its duties and responsibilities. The rule also increases EMA reimbursement from $200 per hour to $300 per hour for EMA services contracted by the Department of Financial Services.

Idaho

Self-insured employers

The Industrial Commission adopted a temporary rule and proposed a permanent rule regarding self-insured employers. The rule may change how self-insured employers’ premium tax is computed. Self-insured employers may decide annually whether to submit an NCCI experience modification factor and form with their semiannual premium tax reports. The commission is allowing self-insured employers to submit an e-mod factor issued by NCCI within 90 days after the July 31 deadline.

New York

Medical treatment guidelines

The Workers’ Compensation Board proposed to add a non-acute pain volume to the medical treatment guidelines. The board also proposed to update the existing guidelines to reflect current medical practice and to ensure consistency with the non-acute pain guidelines. Intrathecal drug delivery is placed on the list of procedures requiring prior authorization. The proposed guidelines include best practice recommendations for prescribing narcotics.The guidelines include recommendations regarding the long-term use of narcotics for the treatment of pain. Comments should be submitted to regulations@wcb.ny.gov. For more information, visit www.wcb.ny.gov/content/main/wclaws/Proposed/Part324_2.jsp.

Oregon

Employer/insurer coverage responsibility

The Workers’ Compensation Division proposed changes to rules regarding employer/insurer coverage responsibility. The rules establish standards for acceptable financial viability of self-insured employer groups, including financial ratios, minimum net worth, and maintenance of insurance against misuse or misappropriation of moneys or securities. The rules raise the excess insurance self-insured retention level and require the director’s preapproval of deductible endorsements. The required common claims fund balance must be maintained at all times. The rules require that private self-insured employer groups submit information to the director about board membership.

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The rules require annual actuarial studies for qualified self-insured employer groups using a loss reserve account in lieu of posting a security deposit with the director. The rules also describe the triggers for possible revocation of self-insurance certification, including certain rule violations and default on obligations. Members of private self-insured employer groups may be ordered by the director to pay assessments for continuing claim liabilities and members will be subject to civil penalties for failure to pay those assessments. The division accepted written comments until July 28.

Electronic medical billing

The Workers’ Compensation Division adopted rules regarding electronic medical billing. The rules adopt national-level electronic medical billing standards and define terms used to explain electronic medical billing standards. The rules provide an option for an insurer to become exempt from the requirement to accept electronic medical bills. The rules also allow the use of alternative billing formats if those formats include all of the data elements required under the standard. The rules describe how to track and submit related documentation and prescribe standards for electronic medical bill acknowledgements, remittance advice, and explanations of benefits. The rules explain the potential for application of civil penalties. The rules go into effect on Jan. 1, 2015. Those with questions should contact fred.h.bruyns@state.or.us.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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You Be the Judge

Is Parking Lot Stumble Compensable?

The court must consider whether an employer's ability to designate where a worker parks her car plays a role in the compensability of a parking lot injury.
By: | August 28, 2014 • 2 min read
You Be the Judge

An assistant manager for a retail clothing store parked in the back lot of the shopping center near the back door of the store. When she left work, she walked to her car and put her purse on the passenger seat, and while walking around the back of the car to the driver’s side, she slipped and fell on black ice. She injured her right shoulder.

The assistant manager sought workers’ compensation benefits. The store denied the claim, arguing that the injury was not compensable because it did not occur on the store’s operating premises.

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The assistant manager said that when she was hired, the store manager and a manager of the shopping center told her to park in the back lot. She admitted that other store employees parked in the front lot. Other employees said that other than during the holiday season, they received no instructions on where to park. No signs designated the back lot as an employee parking lot.

The administrative law judge found that the assistant manager’s injury did not occur within the store’s operating premises and was not compensable. The Workers’ Compensation Board reversed, finding that even though the store had no control over the parking lot, it controlled where employees parked. The board found that the assistant manager’s injury was within the store’s operating premises.

The store appealed.

Poll Question

Was the board correct in granting benefits to the assistant manager?

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The court explained that in determining whether a parking facility is within an employer’s parking premises, it considers: 1) whether the employer directly or indirectly owns, maintains, or controls the parking facility; 2) whether the employer designated where in the parking facility its employees are to park; 3) whether the employee parked in the designated area; and 4) whether the employee was taking a reasonable path from her car to her workstation when injured.

The parties agreed that the store did not own the parking facilities and had no obligation to maintain the facilities. No evidence showed that any parking spaces were specially allocated to the store. Also, no evidence showed that the store had any influence over the shopping center’s maintenance of the parking facilities. The court found that the store exercised no control over the parking facilities.

B is incorrect. Although the assistant manager said she had been told to park in the back lot, other employees said they received no such instructions. The court concluded that the store did not tell employees where to park.

C is incorrect. A dissenting judge opined that the store had indirect control over the parking lot. However, the majority concluded that the store had no control over the parking lot.

How the court ruled: A. The Kentucky Supreme Court held that the assistant manager was not entitled to benefits for her injuries. Hanik v. Christopher & Banks, No. 2012-SC-000791-WC (Ky. 06/19/14).

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 riskletters@lrp.com
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