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

Was Motorcycle Accident Within Course of Employment?

Questions of compensability arise when an accident takes the life of an employee who sometimes used his motorcycle for business errands.
By: | February 5, 2016 • 3 min read
You Be the Judge

A superintendent of the parks and recreation department for the City of Spartanburg died in a motorcycle accident while on his way from his mother’s home to one of the city’s recreational centers. The city’s aquatics director had called the superintendent and asked him to meet her at the city’s swim center to sign some forms and retrieve a key from the department’s recreational center. The aquatics director said that the superintendent told her he was going directly to the recreational center to get the key and then going to the swim center.

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The superintendent’s supervisor said the superintendent’s job duties involved traveling between the various recreational centers and parks. The supervisor said it was not unusual for the superintendent to retrieve keys and sign forms.

The superintendent’s mother said that he went to her home to pick up his motorcycle, which he stored at her home. While he was at her home, he had two business-related telephone calls. When he left, he told her he was on his way to work.

The superintendent’s widow sought workers’ compensation benefits. The single commissioner concluded that the superintendent did not suffer a compensable injury because the accident did not arise out of and in the course of his employment as he was not working at the time of the accident. The appellate panel affirmed the single commissioner’s findings. The widow appealed.

Was the commissioner correct in denying benefits for the superintendent’s death?

  • A. Yes. The superintendent’s accident did not fall within an exception to the going and coming rule.
  • B. No. The superintendent was performing a task given to him by the aquatics director that was of value to the city.
  • C. No. The superintendent was embarking on an errand to retrieve a key for the aquatics director.

How the Court Ruled

B is incorrect. The court found that the duty or task exception to the going and coming rule did not apply. The primary purpose of the superintendent’s travel was a personal objective to travel to the recreational center when he performed his work. The court pointed out that the superintendent was not charged with any work-related duties at the time of the accident.

C is incorrect. The court found that the special errand exception to the going and coming rule did not apply. The superintendent was on his way to work to perform his typical job duties of retrieving keys and signing forms, and he did not perform a special errand by driving to the swim center.

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A is correct. In Wofford v. City of Spartanburg, No. 5369 (S.C. Ct. App. 12/09/15), the South Carolina Court of Appeals held that the superintendent’s death in a motorcycle accident did not occur within the course and scope of his employment.

Generally, an employee going to or coming from the place where he works is not engaged in performing a service growing out of and incidental to his employment, and therefore, an injury from an accident at such time does not arise out of and in the course of employment. Here, the court found that no exception to the going and coming rule applied.

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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View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | January 29, 2016 • 11 min read
judge

Car Accident Caused by Xanax Not Compensable

Tennant v. Fire Safety Investigations, No. 15-0158 (W.Va. 12/11/15)

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Ruling: The West Virginia Supreme Court of Appeals held that a consultant was not entitled to benefits because his injuries were caused by his intoxication.

What it means: In West Virginia, a worker is not entitled to workers’ compensation benefits if the injury was caused by the intoxication of the worker.

Summary: A safety consultant for Fire Safety Investigations was in a motor vehicle accident while on his way to take a drug test as directed by his supervisor. The supervisor had received reports of the consultant acting erratic and strange earlier in the day before the accident occurred.

The consultant tested positive for a high level of Xanax. A toxicologist opined that the Xanax impaired the consultant’s fine and gross motor skills as well as his overall judgment and contributed to his inability to operate a motor vehicle safely.

The consultant had a valid prescription for Xanax and filed a claim for workers’ compensation benefits for his injuries arising from the accident. The West Virginia Supreme Court of Appeals held that he was not entitled to compensation.

The court noted that the Office of Judges found that the consultant was directed by his supervisor to travel off the work site to take a drug test, and therefore, he was acting in the course of his employment.

However, the court pointed out that a worker is not entitled to workers’ compensation benefits if the injury was caused by the worker’s intoxication. Here, witnesses stated that the consultant was acting erratically.

The consultant persuaded his supervisor that he could drive. The toxicologist found that the “extremely high” dosage of the prescription Xanax was a substantial contributing factor in the accident.

Therefore, the consultant was not entitled to benefits.

Worker’s Preference for Walking Doesn’t Block Compensability

Sedgwick Claims Management Services v. Norwood, No. A153605 (Or. Ct. App. 12/30/15)

Ruling: The Oregon Court of Appeals held that an assistant’s injuries while walking to work from the post office were compensable.

What it means: In Oregon, in considering the compensability of an injury occurring during a recreational activity, courts must compare the work-related benefit of the recreational activity with the personal benefit to the worker.

Summary: The co-owner of a business decided to go to the bank during the workday and passed an office assistant while leaving the office. The assistant asked her to take an envelope to the post office, but then the assistant offered to walk to the post office to mail the envelope herself.

The co-owner knew that the assistant enjoyed walking and accepted her offer. The assistant walked three blocks to the post office and mailed the envelope using a company check signed by the co-owner. While walking back to the office, the assistant was struck by a car, causing serious injuries.

The assistant sought workers’ compensation benefits. The business denied her claim. The Oregon Court of Appeals held that her injuries were compensable.

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The court explained that an injury is not compensable if it occurred while the worker was engaged in or performing any recreational or social activities primarily for the worker’s personal pleasure.

The court concluded that this exclusion did not apply. The co-owner argued that the principal reason that the assistant took the envelope to the post office was to enjoy a walk outside.

However, the post office was the only place that the assistant visited on her walk, she paid for the mail with a company check, and she was injured while walking back to work. While the assistant enjoyed walking, the business benefited from her walk to the post office.

The court rejected the argument that the assistant’s personal enjoyment performing the task outweighed the benefit to the employer. The court said the fact that the assistant derived recreational enjoyment from performing a work task and volunteered to perform it does not mean that the task lost its significance as a work-related task.

Delay in Seeking Treatment for Head Injury Curbs Claim

Myers v. City of Rockport, et al., No. CV-15-590 (Ark. Ct. App. 12/16/15)

Ruling: The Arkansas Court of Appeals held that an officer’s head injury was not compensable.

What it means: In Arkansas, neuropsychological testing is not enough to establish compensability for a brain injury.

Summary: A police officer for the City of Rockport was involved in an automobile accident. A pickup truck struck his vehicle. The officer’s car spun around multiple times before striking a cinder block wall.

The initial treating surgeon reported that he injured his right shoulder. More than one year after the compensable injury, the officer informed the surgeon that he was suffering from symptoms in his left shoulder. There was no indication of a head injury.

Two years after the accident, the officer claimed a head injury. He asserted that he began having headaches after the accident. The Arkansas Court of Appeals held that the officer’s head injury was not compensable.

The officer asserted that a neuropsychologist’s tests showed deficits consistent with a brain injury. However, the court pointed out that neuropsychological testing is not enough to establish the injury. A brain MRI showed scarring.

The court found that based on evidence that there were no complaints about the officer’s head injury until more than two years after the accident, and there was no evidence that the MRI finding was related to the officer’s accident, reasonable minds could conclude that he did not establish a causal connection.

The court found that because the officer’s head injury was not compensable, he was not entitled to permanent total disability benefits but was entitled to wage loss benefits.

A dissenting judge opined that there was “ample evidence” that the officer’s head injury was compensable. The judge pointed out that there was no evidence offering an alternate reason for his injury.

Exclusive Remedy Doesn’t Bar Suit for Off-Duty Worker’s Death

Henson, et al. v. Uptown Drink, LLC, No. A15-0493 (Minn. Ct. App. 12/21/15, unpublished)

Ruling: In an unpublished decision, the Minnesota Court of Appeals held that the exclusive remedy provision of workers’ compensation did not bar a suit brought by a worker’s heirs against his employer.

What it means: In Minnesota, the scope of employment does not automatically extend to all actions of an off-duty worker who voluntarily responds to an employer-related emergency.

Summary: A food runner for Uptown Drink was responsible for delivering prepared food orders to customers. On one day, his manager asked him to clock out early because of slow business. The food runner stayed at Uptown Drink and ordered a discounted meal and an undiscounted beer.

Per company policy, he took off his uniform and ate in the game room. Later, the general manager and a bartender attempted to remove two unruly men from the premises. One of the men attacked the general manager and attempted to choke him. Without being asked, the food runner and a bar patron came to help the bartender and general manager subdue the men.

While helping the general manager bring one of the men to the exit, the food runner fell down the stairs onto the sidewalk. He hit his head and was knocked unconscious. He was rushed to the hospital where he later died. His heirs sued Uptown Drink, which claimed that workers’ compensation held the exclusive remedy for the food runner’s death.

The Minnesota Court of Appeals held that the exclusive remedy provision did not bar the suit.

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The court found that Uptown Drink failed to establish a causal connection between the food runner’s injury and death and his employment. Uptown Drink needed to prove that its workplace exposed the food runner to an increased risk of injury over what he would face in his everyday life.

The court explained that it was not a hazard of the food runner’s workplace that led to his injury but a hazard that a bar patron may face on any given night. The aggressive men posed the same risk to any patron who would choose to get involved to prevent severe injury to another person.

The court also found that the food runner’s injury did not occur in the course of his employment. He lingered at the bar for “personal pleasure,” and he was motivated “to aid a fellow human being in a time of need, not to serve his employer.” Also, the food runner exceeded the scope of his employment duties when he responded to the attacking men.

Assault Stemming From Involvement in Pyramid Scheme Fails to Trigger Comp

Joseph v. Monmouth County, No. A-4044-13T3 (N.J. Super. Ct. App. Div. 12/14/15, unpublished)

Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that the supervisor was not entitled to benefits for the injuries he sustained in an assault by an employee.

What it means: In New Jersey, the mere fact that a worker’s injuries were sustained at work as a result of an assault by another employee does not mean the injuries are compensable. There must be a causal connection between the accident and the employment.

Summary: A nursing supervisor for a nursing home was involved in his nursing assistant’s pyramid scheme. The scheme involved an “investment” in which participants put “money into a pot” and then took turns sharing the amounts collected. The scheme involved employees of the nursing home and others from outside their place of employment.

Despite participating on three occasions, the supervisor did not collect any funds. The supervisor spoke to the assistant about her work duties and then commented that people who were supposed to be paid from the pool had not been paid. Later, the supervisor took a break in the break room and fell asleep.

While he slept, the assistant entered the room and attacked him with a hammer, leaving him with cuts on his face and head. The supervisor sought workers’ compensation benefits.

The New Jersey Superior Court, Appellate Division held that the supervisor was not entitled to benefits.

The court explained that the mere fact that the supervisor’s injuries were sustained at work as a result of an employee’s conduct did not make his injuries compensable. He had to show a causal connection between the accident and the employment.

Here, the supervisor was not fulfilling the duties of his employment when he was attacked by the assistant. He was sleeping in the break room in contravention with the nursing home’s rules and regulations.

Therefore, his injuries were not sustained within the scope of his employment.

Even if there was no prohibition against sleeping in the break room, the supervisor’s claim still failed because the assault was related to his involvement in the pyramid scheme, a personal connection to the assistant that resulted in injuries unrelated to their employment.

The court found that had the supervisor not been involved in the assistant’s pyramid scheme the attack would not have occurred.

Employee Can’t Perform Job’s Essential Function Even With Accommodation

Starts v. Mars Chocolate North America, LLC, No. 15-50133 (5th Cir. 12/11/15, unpublished)

Ruling: In an unpublished decision, the 5th U.S. Circuit Court of Appeals affirmed a District Court’s decision granting summary judgment to an employer on a worker’s Americans with Disabilities Act claim. The 5th Circuit held that the worker lacked evidence that he was a qualified individual.

What it means: To state a failure to accommodate claim, a worker must show that, if provided the accommodation he requested, he could perform the essential functions of his job.

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Summary: A worker who worked on the production line for Mars Chocolate injured his back at work. He took Family and Medical Leave Act leave, and during the times that he worked, he operated under medical work restrictions, including at times lifting restrictions and a four-hour workday.

During this time, the worker accumulated unauthorized absences in excess of the company’s absence policy limits. The worker was finally cleared for full-time work of eight-hour shifts with lifting restrictions, which the employer accommodated. The employer informed him that he had exhausted his FMLA leave and that he was expected to work his full eight-hour shifts because no medical documentation permitted a reduced schedule.

Thereafter, the worker missed an entire day of work and left early on four days. He did not provide medical documentation to justify those absences nor were the absences otherwise approved. He was terminated for having too many unapproved absences.

The worker sued, alleging discrimination and failure to accommodate. The 5th U.S. Circuit Court of Appeals held that there was no triable issue of fact concerning whether the worker was a qualified individual.

The parties agreed that attendance was an essential function of the worker’s job. The worker asserted that he would have been able to perform the essential functions of his job had the employer provided him with a four-hour workday accommodation.

The 5th Circuit rejected this argument for two reasons. First, the worker never asked to go back to a four-hour workday. Second, the worker testified that the reason for his work absences was his severe back pain, and there was no evidence that he would have been able to work the entire four hours without having to leave due to his back pain, which occurred at unpredictable times.

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: | December 7, 2015 • 4 min read
Idaho State Capitol

Idaho

Electronic Data Interchange
The Industrial Commission proposed rules regarding implementing EDI Claims Release 3. EDI would allow the submission of all relative workers’ compensation claims information to be reported electronically to the Commission and would alleviate repetitive data entry. The rule amendments would allow the commission to adopt and incorporate by reference in rule the industry standard of the current International Association of Industrial Accident Boards and Commissions EDI Claims Release 3.0 Implementation Guide, published Jan. 1, and located on the IAIABC website; and Version 1.2 of the Idaho Industrial Commission Claims EDI Implementation Guide and Tables. Updates to the EDI Guide and Tables would be made available on the IIC website. The amendments would set forth the requirements of sureties to provide information in accordance with EDI reporting standards. The rules would also allow the electronic submission of a notice of change of status in a workers’ compensation claim be submitted to the commission through EDI rather than submission in the current paper form. The proposed amendment defines a claims administrator who adjusts workers’ compensation claims and clarifies the adjustor is a resident of Idaho. The proposed rule amendment would also clarify the reports by claims administrators to the commission.

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Medical Fees
The Industrial Commission proposed changes to a rule regarding medical fees. The changes clarify how outpatient hospital procedures are to be paid in the presence or absence of comprehensive ambulatory payment classification codes. The coding guidelines published by the Centers for Medicare & Medicaid Services and the American Medical Association are adopted as a standard reference for facility charges. The standard for reimbursement of rehabilitation hospitals will be changed to the same as other noncritical access hospitals.

New Hampshire

Claims
The Department of Labor proposed amendments to rules regarding claims. The rules instruct carriers as to what is necessary for medical authorization and allow carriers to submit electronic wage information. The rules also clarify that the carrier has the responsibility of telling the injured worker what benefits are provided under the law. The rules instruct carriers to pay benefits on the same day of the week each week. The department scheduled a public hearing on Nov. 6.

Insurance Coverage
The Department of Labor proposed amendments to rules regarding insurance coverage and self-insured employers. The rules provide self-insured employers instructions for when and what forms must be filed to confirm coverage. The rules were updated to conform to electronic filings by carriers. The self-insurance rules clarify that a group of political subdivisions must supply a guarantee to self-insure. The existing rules were scheduled to expire on Nov. 1 but were subject to an extension.

California

Benefit Notice Manual

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The audit unit of the Division of Workers’ Compensation proposed draft revisions to the benefit notice manual and sample benefit notices. The “safe harbor” provision of the regulations provides that benefit notices using the sample notices available on the division’s website are presumed to be adequate notice to the worker and unless modified shall not be subject to audit penalties. The division accepted comments until Oct. 9. The division noted that the revised notices may not be used until the regulations take effect on Jan. 1, 2016.

Connecticut

FICA Deductions
The Workers’ Compensation Commission issued a memorandum regarding calculating weekly benefit amounts without FICA and Medicare deductions. In the event that a commissioner decides that a worker is not subject to FICA or Medicare taxes, he can exclude the equivalent amount from deduction from gross pay to determine the compensation rate. The commission provided equations for calculating the compensation rate. The commission noted that statutory maximums and minimums apply.

Maine

Medical Fee Schedule
The Workers’ Compensation Board announced that a new medical fee schedule went into effect on Oct. 1.

Massachusetts

Cost-of-Living Adjustments

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The Department of Industrial Accidents issued a circular letter regarding cost-of-living adjustments, maximum and minimum weekly compensation rates, and the attorney’s fees schedule. For injuries occurring on or after Oct. 1, the maximum weekly compensation rate is $1,256, and the minimum weekly compensation rate is $251. Recipients of total disability benefits are eligible for a COLA if the date of injury was at least two years before Oct. 1. COLAs for those receiving partial benefits are payable only to workers with an injury date on or after Jan. 1, 1986, but before Dec. 24, 1991. Insurers are entitled to quarterly reimbursements from the workers’ compensation trust fund for COLAs. The schedule of adjusted attorney’s fees is contained in the circular letter. The new rates apply to cases involving injuries on or after Dec. 24, 1991.

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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