Did Broken Leg Arise Out of Employment?
A nursing house supervisor for Christus Schumpert Highland Hospital commuted to work from another city. Her duties included coordinating nursing services and taking calls from those who were unable to come to work. Her normal working hours were 4 p.m. until midnight.
One afternoon while the supervisor was working, an ice storm rolled in. Many nurses were unable to report to work because of hazardous road conditions, and the hospital stopped accepting patients. A second supervisor arrived to relieve the supervisor after midnight but advised her that the parking lot was icy. The supervisor called hospital security but was told that they didn’t have much sand to treat the parking lot.
The supervisor clocked out at 1:40 a.m. but was unable to leave because the police had closed the roads. She decided to stay in the hospital until conditions improved, first lying on a couch in the waiting room and then trying to sleep in an unoccupied patient room, but she never really fell asleep.
The supervisor got up at 5 a.m., went to the nursing director’s office, and started answering the phone, but did not clock in. A third supervisor arrived to start her shift shortly after 8 a.m. and strongly advised the supervisor not to get on the roads.
The second supervisor offered to let the supervisor to stay at her house until the weather conditions improved, and the supervisor agreed. They exited the hospital and walked to the parking lot where they had parked, which was also open to the public. The second supervisor described the parking lot as “completely icy.”
Rather than going straight to the second supervisor’s vehicle, the supervisor detoured to her own car to drop off a bag she was carrying. She put the bag in her car and shut the door, but when she turned to go to the second supervisor’s car, she slipped on the ice and fell, breaking her leg and sustaining other injuries.
The supervisor filed a workers’ compensation claim, which the hospital denied. The workers’ compensation judge found that the injury was not compensable. The supervisor appealed.
Was the WCJ correct denying the supervisor’s claim?
- A. No. The risk of injury from walking in the parking lot was greater for the supervisor than for other members of the public.
- B. Yes. The ice storm was not the kind of condition that subjected the supervisor to any greater risk than the general public.
- C. No. The supervisor’s presence at the hospital benefited her employer.
How the Court Ruled
A is incorrect. The court pointed out that the slip and fall occurred in a parking lot designated for employees but also open to the general public.
C is incorrect. The court found that the supervisor was not benefiting the hospital’s business operation by placing her bag in her car before leaving with the second supervisor.
B is correct. In Lafitte-Nesom v. Christus Schumpert Highland, No. 50,496-WCA (La. Ct. App. 02/24/16), the Louisiana Court of Appeal held that the supervisor did not establish that her accident arose out of and in the course of her employment.
Although the hazard of slipping on ice was evident, the court found the ice storm was not the kind of condition that subjected an employee like the supervisor to any greater risk than the general public.
Editor’s note: This feature is not intended as instructional material or to replace legal advice.
Did Driver’s Death Arise Out of His Employment?
OA Logistics Services contracted with Staffchex to provide temporary workers to work in a warehouse owned by OA. A worker applied for a position with Staffchex using an alias. Certain portions of his application form were incomplete, and his photo identification appeared different from his actual appearance.
OA required Staffchex to perform criminal background checks on workers before they were employed, but before the worker’s check was returned, he began working at the OA warehouse. The check on the alias would eventually show no criminal history, although the worker had a felony criminal record.
Before the return of the criminal background check, the worker worked at the warehouse along with a forklift driver. The driver’s forklift ran out of fuel, so he went to an office area to inquire about refueling.
As he waited outside the office, the worker entered the office and attempted to kiss a female coworker, who pushed him away. The worker smirked and walked out. The worker then produced a gun and shot the driver in the back of the head, reentered the office, and sexually assaulted the female coworker. The female coworker said that the driver had not been aware of the assault, had not attempted to intervene, and had not interacted with the worker before that occasion.
The driver died. His mother sued OA, Staffchex, and the worker, alleging that OA and Staffchex negligently conducted the hiring process. OA and Staffchex argued that the driver’s exclusive remedy was in workers’ compensation. The trial court agreed and granted summary judgment. The mother appealed.
Was the trial court correct in finding the suit was barred under the exclusive remedy provision?
- A . Yes. The driver’s work required him to be in a location that heightened his risk of injury or criminal attack.
- B. Yes. The driver and the worker had a work-related dispute that escalated into violence.
- C. No. The record did not establish any connection between the attack and the driver’s work or workplace.
How the Court Ruled
A is incorrect. The court found that the driver’s work did not require him to be in a location that heightened his risk of injury or criminal attack. The court concluded that the positional risk doctrine did not show that the driver’s death arose out of his employment.
B is incorrect. The court found that the driver and worker did not have any work-related dispute. The female coworker testified that they had no interaction before the worker shot the driver.
C is correct. In Sturgess v. OA Logistics Services, Inc., et al., No. A15A2139 (Ga. Ct. App. 02/15/16), the Georgia Court of Appeals held that the trial court erred by concluding that the driver’s injury arose out of and in the course of his employment.
The parties agreed that the driver’s death occurred in the course of his employment because it occurred while he was on duty performing his job functions at his employment location. The court found that the driver’s death did not arise out of his employment.
There was no high-crime element to the workplace location or a risk of theft or robbery associated with the workplace. The risk of a random attack was no more heightened at the driver’s workplace than at any other place.
Editor’s note: This feature is not intended as instructional material or to replace legal advice.
Workers’ Comp Docket
Laser Tag Injury Not Excluded From Coverage
Shire v. Rosemount, Inc., No. A15-0856 (Minn. 02/17/16)
Ruling: The Minnesota Supreme Court held that a worker was entitled to benefits for the injury he sustained during a game of laser tag.
What it means: In Minnesota, an employer-sponsored recreational program is not voluntary when it takes place during work hours and workers must either attend the event or use limited vacation time in order to get paid.
Summary: Rosemount sponsored its annual employee recognition event for weekend-shift employees. Employees could attend the event and receive their usual wage, request to use their accrued paid vacation time, or request to take unpaid leave. The event consisted of dinner followed by bowling and laser tag. A worker injured his right ankle while playing laser tag. He sought workers’ compensation benefits. Rosemount denied liability, asserting that the workers’ compensation law excludes injuries that occurred during voluntary recreational programs. The Minnesota Supreme Court held that the worker was entitled to benefits.
The worker asserted that he was implicitly compelled to attend the event because attendance was the only option by which he could get paid without using his limited vacation time. The court said that to hold that a program is “voluntary” under these circumstances would ignore the financial consequences that employees would face by failing to attend. Here, Rosemount could impose consequences on an employee’s failure to attend an event described as “voluntary.” The court found that an employer’s classification of an event as “voluntary” should not prevail when the facts show that employees had only one choice, to attend.
Here, the worker’s decision to attend the event was constrained by his need to earn money. The court concluded that Rosemount’s event was not “voluntary.” The court pointed out that Rosemount could have paid all employees regardless of their attendance at the event or could have paid none of the employees for the three hours at issue.
Rosemount asserted that even if the event was not voluntary, the worker’s participation in the laser tag game was voluntary. The court found that the voluntariness of a worker’s participation in an individual activity did not govern the applicability of the exclusion for voluntary recreational programs.
A dissenting judge opined that Rosemount’s recreational program was voluntary because it did not coerce the worker into attending and the worker made the choice to attend after being presented with reasonable alternatives.
Court Deems Fifth Shoulder Surgery Reasonable and Necessary
Arkansas Department of Parks and Tourism v. Price, No. CV-15-718 (Ark. Ct. App. 02/17/16)
Ruling: The Arkansas Court of Appeals held that a worker was entitled to additional medical treatment and additional temporary total disability benefits.
What it means: In Arkansas, the worker has the burden of showing that medical treatment is reasonably necessary.
Summary: A worker for the Department of Parks and Tourism sustained a compensable right shoulder injury. He underwent physical therapy and four surgical procedures, but he continued to experience pain. He was referred to another physician who recommended that he undergo a fifth surgery. After the department’s refusal to pay for the surgery, the worker filed a claim with the Workers’ Compensation Commission requesting additional medical treatment and temporary total disability benefits. The commission found that the worker was entitled to additional temporary total disability and that the surgery was reasonable and necessary medical treatment. The Arkansas Court of Appeals agreed with the commission’s decision.
The department argued that the recommended surgery was not reasonable and necessary medical treatment in connection with the worker’s compensable right shoulder injury. After the worker’s prior surgeries, he still had functional limitations and pain. The department argued that an independent evaluation of the worker indicated that he did not warrant further treatment. The court pointed out that the independent evaluation was performed nearly one year before the fifth surgery was recommended, and the worker’s condition had continued to deteriorate during the intervening time period. The commission also stated that the worker’s medical condition was “unusual” and that the recommended treatment would not have a large presence in medical literature and would not be familiar to those without specialized experience in shoulder surgery revisions. Therefore, the medical treatment was reasonable and necessary.
The department argued that the physician was not the worker’s authorized treating physician. However, the court found that the department failed to previously object to the treatment under the change of physician provisions.
The department contended that the worker was not entitled to additional temporary total disability benefits. To receive temporary total disability benefits, a worker must show that he is within the healing period and is totally incapacitated from earning wages. Here, the court found that the worker met his burden. He testified that he was unable to successfully perform light-duty work due to the pain and instability in his shoulder, and his physician noted a lack of function, significant pain, and instability in his shoulder. The commission found that the worker would be unable to work for a short period of time after his surgery and would be restricted to light-duty work for a longer period of time. While the department contended that the worker reached the end of his healing period, the court pointed out that his condition continued to worsen.
Eight-Month Injury Reporting Delay Blocks Compensation
Wolters v. City of St. Francis, No. 112, 947 (Kan. Ct. App. 02/12/16, unpublished)
Ruling: In an unpublished decision, the Kansas Court of Appeals held that an officer was not entitled to benefits for his left knee injury.
What it means: In Kansas, a worker’s eight-month delay in complaining about an injury can prevent a finding that the injury is compensable.
Summary: A police officer for the City of St. Francis was acting within the scope of his employment when he went to check pump gauges at the city water plant. While exiting the building, he slipped and fell on ice. He twisted his ankle and landed on his hands and knees. Later that day, he sought treatment for a swollen ankle but did not mention a left knee injury. The officer sought workers’ compensation benefits for a left knee injury, alleging that he was injured in the fall. The Kansas Court of Appeals held that he was not entitled to benefits for his left knee injury.
The court pointed out that the officer did not initially mention a left knee injury when he sought treatment on the day of the fall. It was not until he filed a workers’ compensation claim eight months later that he began telling physicians that he had immediate knee problems after his fall. Also, a doctor opined that although the officer’s knee problems could have been caused by a traumatic injury, these type of injuries were usually caused by wear, tear, and degeneration. The court found that the officer’s left knee problems were not caused by the fall.
Worker’s Aggression Blocks Claim For Injuries
Karabegovic v. Marina Cartage Inc., 23 ILWCLB 216 (Ill. W.C. Comm. 2015)
Ruling: The Illinois Workers’ Compensation Commission denied benefits to a driver for injuries sustained when he was pushed by a coworker. Evidence indicated that the driver was the aggressor in the confrontation, and therefore, his injuries were not covered by workers’ compensation.
What it means: In Illinois, where the injured worker is the aggressor in a confrontation with a coworker, any injuries sustained when the coworker pushes him away are not compensable under workers’ compensation.
Summary: A truck driver began questioning the mechanics shop manager repeatedly about fixing his truck. The manager told the driver several times that the requested repairs would be made and to leave the shop. The driver eventually left the shop but returned and again scolded the manager about fixing his truck. The driver then poked the manager several times while addressing him in a raised voice. The manager repeatedly requested that the driver stop jabbing him, but the driver continued. The manager then pushed the driver away. The driver fell backward and injured his back and neck. The workers’ compensation arbitrator denied benefits. The commission agreed with the arbitrator’s decision.
In denying benefits, the arbitrator explained that although both the driver and the manager were subject to condemnation for their behavior, it was clear that the driver’s confrontational and quarrelsome nature precipitated the manager pushing him away. The arbitrator found troublesome the driver’s unrelenting lambasting of the manager about his truck repairs after being assured that the repairs would be done. The driver made physical contact with the manager with his jabs or pokes. Jabbing the manager repeatedly after being told to stop was highly aggressive and antagonistic. Accordingly, the driver was the aggressor, and his injuries did not arise out of his employment.
The board also found the WCJ did not err in concluding that the driver did not establish a period of disability. There was no medical evidence supporting the driver’s assertion of disability every time he underwent his endoscopy procedures.
Consistent Description of Back Pain Establishes Gradual Injury
Lowe’s Home Centers, Inc. v. Pope, No. CV-15-735 (Ark. Ct. App. 02/10/16)
Ruling: The Arkansas Court of Appeals held that a manager established that her gradual onset lower back injury was compensable.
What it means: In Arkansas, medical evidence on causation is not required in every case to establish a gradual injury, and causation often comes down to a decision on the credibility of the injured worker.
Summary: An assistant manager for Lowe’s Home Centers claimed that she began having neck and lower back problems after lifting a trash compactor weighing 50 to 70 pounds by herself. She reported the injury to a store manager but did not then file a workers’ compensation claim. Later, the manager claimed that she sustained an accidental neck injury from lifting the trash compactor and a gradual onset lower back injury. The Arkansas Court of Appeals held that the gradual onset lower back injury was compensable.
The court pointed out that there was no evidence that the manager experienced any back problems before her employment at Lowe’s. The manager testified that her back problems started while working at Lowe’s. Her duties involved heavy lifting and long work hours. She said that minor pain in her back started after lifting the trash compactor, but she did not initially report her back pain to her doctor because she thought it would go away. However, she said that her lower back problems worsened gradually over time and that the pain was exacerbated by working, twisting, turning, and bending. The court found that the manager consistently described when her back symptoms began. The court found that her gradual onset back injury arose out of her employment, which was the major cause of her need for treatment.
The court also found that the manager’s neck injury was not compensable. An MRI detected only early degenerative neck changes and contained no findings supporting a neck injury attributable to a traumatic event at work.
Supervisor Control Unravels Independent Contractor Status for WC
Lefrayah v. Oak Lane Express Pizza, Inc., 31 PAWCLR 8 (Pa. W.C.A.B. 2015)
Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s finding that a worker for a pizza restaurant was an employee rather than an independent contractor of the restaurant.
What it means: In Pennsylvania, the fact that a worker is an independent contractor on his tax forms is not determinative of his status under the workers’ compensation law. Where the evidence establishes that the worker’s supervisor oversees the quality of the work and the manner in which it is performed, and he had the ability to hire and fire the worker, sufficient support exists for a finding of an employment relationship.
Summary: The board held that the WCJ did not err in concluding that a delivery driver and occasional kitchen worker for a pizza restaurant was an employee rather than an independent contractor of the restaurant. Evidence indicated that the driver’s supervisor was overseeing the quality of the driver’s work and the manner in which it was performed rather than the result only. Also, the board noted that truck drivers working on call or on commission, even in circumstances where they may refuse work assignments, have been found to be employees rather than independent contractors. Here, although the driver admitted he was an independent contractor on his tax forms, the parties’ own characterization of a worker’s employment status has been found not to be controlling.
Failure to Accept New Job Was Refusal of Meaningful RTW
Thompson v. Kroger Limited Partnership, No. W2015-00075-SC-R3-WC (Tenn. 02/01/16, unpublished)
Ruling: In an unpublished decision, the Tennessee Supreme Court held that an employer offered a worker a meaningful return to work, but she refused the offer. Therefore, the worker was not eligible for reconsideration of her earlier settlement.
What it means: In Tennessee, when determining whether a worker had a meaningful return to work, courts must assess the reasonableness of the employer in attempting to return the worker to work and the reasonableness of the worker in failing to return to work.
Summary: A worker in the deli section of a Kroger supermarket sustained a compensable injury to her left shoulder. She settled her workers’ compensation claim. After a period of therapy and rehabilitation, the worker’s surgeon released her to light-duty work. Kroger assigned her to a job placing price tags on shelves and moving outdated items to other locations within the store. Later, the store manager advised the worker that her permanent medical restrictions prevented her from returning to work in the deli.
He offered her a position as a cashier in the store’s fuel center. The worker expressed concerns about her ability to perform certain tasks of the job. The manager told her that assistance would be provided when heavy lifting was required. The manager also said that she would have retained her basic hourly wage but would not receive the extra 25 cents per hour that she was paid when acting as a backup assistant manager of the deli. The manager said the worker told him that she did not want to work in the fuel center.
Later, the worker was terminated because she was unable to perform the duties of her job in the deli. The worker sought reconsideration of her earlier settlement. The Tennessee Supreme Court held that the worker refused an offer of a meaningful return to work, so she was not entitled to a reconsideration of her settlement.
The court found that Kroger did what was reasonably required when it was determined that the worker could not accomplish her job at the deli. The worker was also offered a reasonable accommodation which she declined.
The worker’s concerns about her ability to perform the job were based on her observations of other employees there. From those observations, she identified a limited number of specific tasks that she thought she would not be able to perform. The manager testified that these tasks constituted a small part of the job and that Kroger would accommodate her by providing assistance when these tasks were required.
The court found that the evidence concerning the 25-cent pay supplement was sparse. The manager testified that the supplement was not part of the worker’s regular pay and she only received it when she was acting as the assistant manager. No evidence showed the number of hours she worked in that capacity. The court found that the 25-cent supplement was not part of the worker’s preinjury wage.