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 [email protected]

You Be the Judge

Should Attempted Heroics Bar Claim for Benefits?

A retail store worker pursued a shoplifter and sustained injuries. His claim was denied, because the pursuit was a violation of company safety policy.
By: | October 3, 2016 • 3 min read
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A night shift cashier for a Circle K convenience store typically reported to work 30 minutes early and ate dinner in the manager’s office before clocking in. The store’s security cameras were connected to monitors in the manager’s office.

One night, the cashier ate his dinner and observed on one of the monitors a young man placing items from the store shelves into his pockets. The cashier proceeded from the office and confronted the suspected shoplifter.

The man ran out of the store, and the cashier chased him, grabbing the hood of his sweatshirt. The suspected shoplifter continued to run, causing the cashier to fall forward and land on his outstretched arm. He sustained serious injuries that necessitated surgery and a hospital stay.

Circle K terminated the cashier after the incident, citing his violation of company policy. Circle K’s employee handbook contained provisions that prohibit employees, for safety reasons, from chasing, pursuing, or attempting to apprehend persons committing crimes on store property.

The handbook also states that the use of force to prevent a crime is outside the scope of employment. Another provision notes that night shift employees will work inside the store unless there is a safety emergency.

A store manager and district manager stated that the policies were in place due to “personal injury issues” outweighing the costs of inventory loss and for the safety of workers, customers, and shoplifters.

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The cashier filed a workers’ compensation claim. The administrative law judge denied benefits, finding that his knowing violation of company policy constituted a substantial deviation from the course and scope of his employment. The Workers’ Compensation Board reversed, and Circle K appealed.

Was the ALJ correct in finding that the cashier’s injury was not compensable?

  • A. Yes. The cashier violated the handbook’s provisions that places the use of force to prevent the commission of a crime outside the scope of employment.
  • B. No. Mere safety violations do not entirely deprive an injured worker of benefits.
  • C. Yes. The cashier’s action was not furthering Circle K’s business.

How the Court Ruled

The court found that the incident involved a violation of safety rules. The court explained that the mere violation of safety rules do not entirely deprive an injured worker of benefits. Rather, the cashier’s behavior justified a reduction in the benefits awarded.

A is incorrect. The court explained the fact that Circle K adopted a policy that explicitly attempted to limit the scope of employment to exclude workers injured by violation of safety rules from compensation contracted the policy purposes behind the workers’ compensation law.

C is incorrect. The court found that the cashier’s safety violation, even though intentional, did not move his behavior outside the course and scope of his employment or justify a complete bar to recovery. Established precedent would reduce the cashier’s recovery of benefits.

B is correct. In Circle K v. Carter, No. 2015-CA-001527-WC (Ky. Ct. App. 07/29/16, unpublished), the Kentucky Court of Appeals held that the cashier’s safety violation, although intentional, did not move his behavior outside the course and scope of his employment.

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 [email protected]
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View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | September 23, 2016 • 10 min read
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Operator Wins Benefits for Guillain-Barre Syndrome From Flu Shot

Phillips v. Wyman Gordon Pennsylvania, 31 PAWCLR 128 (Pa. W.C.A.B. 2016)

Ruling: The Pennsylvania Workers’ Compensation Appeals Board affirmed the workers’ compensation judge’s decision awarding benefits to a worker, who alleged that he contracted Guillain-Barre syndrome after receiving a flu shot at work.

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What it means: In Pennsylvania, a worker’s act of receiving a flu shot at work arises in the course and scope of his employment even though the shot is voluntary and he receives no benefit or penalty from the employer for receiving or refusing the shot.

Summary: The board affirmed the WCJ’s decision awarding benefits to a machine operator who alleged he contracted Guillain-Barre syndrome after receiving a flu shot at work.

The treating doctor testified that the operator’s condition was caused by the flu shot he got at work because there were no other potential causes identified and that GBS is one of the risk factors of a flu shot. This testimony constituted sufficient support for a finding that the operator’s GBS was caused by his flu shot.

Furthermore, the board found no error in the WCJ’s finding that the operator was in the course and scope of his employment when he was vaccinated at work. By opting to receive the flu shot that the employer made available, the operator was acting in furtherance of the employer’s business and affairs.

Despite the employer’s assertion that the operator’s decision to receive the flu shot was voluntary and that no employee received either a benefit or penalty for either receiving the shot or refusing it, it was clearly in the employer’s best interest to have its employees vaccinated.

By offering flu shots to its employees, the employer was attempting to ensure that there would be a sufficient number of healthy employees able to work and maintain production during flu season. Accordingly, the operator was within the course and scope of his employment when he was vaccinated at work.

Bystander Emotional Injury Claim Barred by Exclusive Remedy Provision

Velecela v. All Habitat Services, LLC, No. SC 19589 (Conn. 08/09/16)

Ruling: The Connecticut Supreme Court held that a suit brought by the wife of a deceased worker for bystander emotional distress was barred by the exclusive remedy provision of the workers’ compensation law.

What it means: In Connecticut, a suit against an employer for bystander emotional distress is barred by the exclusive remedy provision.

Summary: A worker for All Habitat Services was repairing an all-terrain vehicle that was elevated on a lift. During the repair, the vehicle slipped off the lift, crushing and killing him. The worker’s wife arrived to bring him lunch, and she discovered his body under the vehicle.

The wife received workers’ compensation survivor benefits. The wife also sued All Habitat, claiming bystander emotional distress. The Connecticut Supreme Court held that the wife’s suit was barred by the exclusive remedy provision of the workers’ compensation law.

The court explained that the language of the exclusive remedy provision is broad, abolishing “all rights and claims” that fall under the workers’ compensation law, including any rights and claims of workers’ dependents.

The court also noted that emotional distress, by itself, is not a bodily injury, so it can be compensable only if it flows from the bodily injury of another person. Bystander emotional distress results from and arises out of the underlying personal injury or death. When that personal injury or death is compensable under workers’ compensation, an action for bystander emotional distress is barred by the exclusive remedy provision.

Here, it was undisputed that the worker’s injuries and death arose out of and in the course of his employment and were compensable under workers’ compensation, and the wife’s alleged emotional injuries derived from and were caused by those injuries and death. Therefore, the wife’s claim was barred.

A concurring judge pointed out that a claim for a bystander emotional injury would be compensable if the underlying injury fell within an exception to the exclusivity provision.

Worker’s ‘Income Producing’ Activities Support Finding of Overpayment

State ex rel. Perez v. Industrial Commission of Ohio, No. 2015-0532 (Ohio 07/26/16)

Ruling: The Ohio Supreme Court held that a worker received an overpayment of temporary total disability benefits and that he fraudulently misrepresented that he was not working.

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What it means: In Ohio, a finding that a worker committed fraud is proper when he misrepresented to the Industrial Commission that he was not working and was not forthcoming with his physicians about his activities.

Summary: A construction worker sustained a work-related injury and was awarded temporary total disability compensation. The worker had also owned and operated an auto repair business. The Bureau of Workers’ Compensation received information that the worker was operating his business while receiving TTD benefits.

During an investigation, the worker was observed performing auto work and meeting customers. Witnesses stated that the worker handled scheduling, diagnosed car problems, received payments, and picked up parts from an auto parts store. The Ohio Supreme Court held that the worker received an overpayment of TTD benefits and that he fraudulently misrepresented that he was not working.

The court rejected the worker’s argument that his business activities were unpaid and minimal and did not directly produce income for the business. The court concluded he was engaged in “more than minimal activities that were income-producing” for the business. Also, the court noted that during the relevant time period, he purchased more than $43,000 in auto parts, an amount that indicated that they were not merely for personal use.

The court also found that the evidence supported a finding of fraud. The worker misrepresented to the Industrial Commission on multiple occasions that he was not working. Also, he was not forthcoming to physicians about his activities with his business.

Psychological Condition Was Reasonably Contemplated at Time of Settlement

Ryan v. Potlach Corp., No. A15-1404 (Minn. 07/13/16)

Ruling: The Minnesota Supreme Court held that a worker had to bring a motion to set aside her settlement agreement with her employer before she could proceed with a claim for a psychological condition.

What it means: In Minnesota, a workers’ compensation settlement agreement can close out the work-related injury that is the subject of the agreement and also conditions and complications that arise from the injury and are within the reasonable contemplation of the parties at the time of the settlement agreement.

Summary: A worker injured her back while working for Potlach Corp. She and Potlach entered into a settlement agreement that provided for a full, final, and complete settlement of her workers’ compensation claims, excluding future reasonable and necessary medical treatment, in return for a lump-sum payment.

Later, the worker filed a claim for a consequential psychological injury. The Minnesota Supreme Court held that she had to bring a motion to set aside the settlement agreement before she could proceed with her claim for a psychological condition.

The court found that a workers’ compensation settlement agreement can close out the injury that is the subject of the agreement and also conditions and complications arising out of the injury. It is not necessary that the condition or complication be specifically referenced in the settlement agreement. The agreement must resolve any conditions or complications that arise out of the injury that were reasonable within the contemplation of the parties at the time of the agreement.

Here, the court rejected the worker’s argument that her depression was a new condition not within the contemplation of the parties at the time of the agreement. The court explained that her depression was a psychological condition that arose out of and was a consequence of her workers’ compensation injury, and therefore, it fell within the scope of the agreement. The court also pointed out that depression can arise from the pain and loss of function associated with a chronic back condition.

Dispute Over Timing of Termination Revives Mine Worker’s Retaliation Claim

Foster v. Mountain Coal Co., LLC, et al., No. 15-1025 (10th Cir. 07/26/16)

Ruling: The 10th U.S. Circuit Court of Appeals reversed and remanded a District Court decision granting summary judgment to an employer on a worker’s Americans with Disabilities Act claim. The 10th Circuit held that triable issues existed regarding the worker’s retaliation claim.

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What it means: A worker who alleged he was terminated within hours of requesting an accommodation sufficiently showed causation for an ADA retaliation claim.

Summary: A worker for Mountain Coal Co. injured his neck at work and went to the emergency room. The ER doctor completed a return-to-work slip, but the company refused to accept it because it was not on the company’s form. The worker had his primary doctor complete the form, and he said he dropped it off at human resources. HR said they never received it, and the company accused him of lying. He later dropped off another form signed by his primary doctor.

At a meeting one week later, the worker was suspended. He claimed that he was suspended because he had his primary doctor complete the form even though he had not treated the worker’s neck injury. He told his supervisors that he was going to schedule surgery for his neck.

A week later, he received a letter terminating him effective a few days earlier, allegedly for lying about having dropped off the first note. The letter was written the same day he told another supervisor over the phone that he was going to have surgery. The parties disputed whether the decision to terminate him was made before or after the phone call.

The worker sued, claiming that his statements, once at the meeting and once over the phone, that he was going to have surgery were requests for accommodation and that he was terminated in retaliation for making them. The 10th Circuit held that there were triable issues regarding his claim.

The company argued that the worker’s alleged requests for accommodation were not specific enough to constitute protected activity. The court disagreed, concluding that a reasonable jury could interpret his statements that he was going to need surgery as adequate requests for accommodation.

The company contended that even assuming the requests were adequate the worker could not show causation. The court explained that where the protected activity “is closely followed by an adverse employment action” a worker can rely solely on temporal proximity to show causation.

Here, the court concluded that “because the purported protected activity occurred mere days or even hours before the adverse employment action” the worker sufficiently showed causation.

Furthermore, the parties disputed the reasons for the suspension and termination. The court concluded that if a jury credited the worker’s account — that he was suspended for one reason and terminated for another — then it could find that these inconsistent reasons were sufficient to show pretext.

Worker’s Volunteer Work Falls Outside Scope of Employment

Gray v. Bank of America, 24 ILWCLB 102 (Ill. W.C. Comm. 2016)

Ruling: The Illinois Workers’ Compensation Commission held that a worker’s accidental injury while performing volunteer work at a community event did not occur in the course of her employment even though she cochaired the employer’s community volunteer team.

What it means: In Illinois, where a worker is not paid extra for her work as cochair on her employer’s community volunteer team, her performance reviews are not tied to her volunteer participation, and her volunteer work is not ordered or assigned by the employer, the worker’s injury while participating in a volunteer event does not occur in the course of her employment.

Summary: A project manager for Bank of America was also the cochair of the bank’s community volunteer team. As such, she was responsible for establishing relationships between the bank and the community, including nonprofits as well as different lines of businesses within the bank.

She was reimbursed as part of her salary for the services she performed as cochair of the community volunteer team, but her salary stayed the same regardless of whether she volunteered. The manager was at an event organized by the Girl Scouts of America that bank volunteers were encouraged to attend. While at the event, the manager fell and broke her leg.

The arbitrator found the evidence was insufficient to show that the manager’s injury occurred from an activity that was compulsory or occurred in the course of her employment. The arbitrator noted that the manager was not ordered or assigned to participate in any volunteer program or activity by the bank. Rather, her participation at the event was purely under her own volition and not mandated by the bank.

The arbitrator agreed that the bank encouraged its employees to volunteer in the community, and the bank derived a benefit from employee attendance at community events. However, the manager was not paid extra for her participation, and her performance reviews were not tied to her volunteer participation.

Also, the Girl Scouts event was not sponsored by the bank. The fact that the bank’s corporate presence in the community may have resulted in some benefit incidental to its actual business of banking was too tenuous and intangible to be persuasive in this case. Also, bank employees could choose not to participate in the volunteer networks without negative effect at work. The commission affirmed and adopted the decision of the arbitrator.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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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 9, 2016 • 4 min read
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California

Fee Schedule

The Division of Workers’ Compensation issued a second 30-day notice of modification to the proposed hospital outpatient departments and ambulatory surgical centers fee schedule regulation text.

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The proposed modifications include clarification that for services rendered on or after Sept. 1, 2014, but before the effective date of this amendment, “Other Services” means Hospital Outpatient Department Services payable under the Medicare Hospital Outpatient Prospective Payment System that are not surgical, emergency department visits, or “Facility Only Services,” or services that are an integral part thereof. For services rendered after the effective date of this amendment, the definition of “Other Services” will not exclude “Facility Only Services.”

The modifications discontinue the current payment model which determines maximum allowance for “Other Services” on the Resource Based Relative Value Scale physician fee schedule relative values. The modifications also institute a payment model where the maximum allowances for all hospital outpatient department services that are payable under the Medicare HOPPS, including “Other Services,” are determined based on the Medicare HOPPS.

The modifications expand the definition of surgical procedure HCPCS codes to conform to Medicare’s HOPPS definition of surgical procedures for services rendered on or after the effective date of this amendment. Also, the changes adjust the fee schedule regulations to conform to relevant changes in the Medicare HOPPS for calendar years 2015 and 2016.

Home Health Care

The Division of Workers’ Compensation posted amended draft regulations regarding the implementation of a fee schedule for home health care services. Upon review of the comments received, the division amended its regulations to provide better organization and clarity. In addition, the division has adopted rates drawn from the federal Office of Workers’ Compensation Programs fee schedule for home health care services, which provides rates of provider compensation that are higher than in the previous draft.

A state bill grants the division the authority to base the home health care services fee schedule on sources other than the federal Medicare and state In-home Supportive Services programs.

The proposed regulations set forth a payment methodology and fees for skilled care by licensed medical professionals and unskilled personal and chore services for injured workers in the home setting that will provide incentives for an adequate number of potential care providers to participate in home health care for injured workers while containing costs to the overall workers’ compensation system.

Florida

Assessment Rate

The Department of Financial Services, Division of Workers’ Compensation issued a bulletin advising insurers, self-insurers, and other related stakeholders of an order setting the assessment rate for the workers’ compensation administration trust fund for the 2017 calendar year. Beginning Jan. 1, 2017, the assessment rate for the workers’ compensation administration trust fund is reduced from 1.43 percent to 1.25 percent. Those with questions should call Gene Smith, assessments coordinator for the division, at (850) 413-1644.

New York

Reimbursement for Burials, Funerals, and Memorial Services

The Workers’ Compensation Board amended a rule to provide for the reimbursement for memorial services under the workers’ compensation law and to increase the amount of reimbursable expenses for burials, funerals, and memorial services. Reimbursable expenses must not exceed $12,500 in the counties of Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk, and Westchester, and $10,500 in the remaining counties. This applies to deaths occurring on or after June 8, 2016.

Ohio

Opioid Prescribing Rules

The Bureau of Workers’ Compensation proposed new opioid prescribing rules. The rules establish provisions and criteria for the treatment of opioid dependence that arose secondary to treatment with opioid medications covered by the bureau and provide and strengthen bureau peer-review processes for opioid prescribing that can be implemented to address serious noncompliance with these best practices.

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Under the proposed rules, bureau reimbursement for opioid prescriptions used to treat a work-related injury or occupational disease is limited to claims in which current best medical practices are followed. The bureau will not reimburse for any further prescriptions for opioids, and prescribers should discontinue prescribing opioids, if the applicable criteria of the rules are not met. The rules would go into effect on Oct. 1 for claims with a date of injury on or after Sept. 1 and for all claims on or after Jan. 1, 2017.

Oregon

Cost-of-Living Matrix

The Workers’ Compensation Division issued a bulletin revising the cost-of-living matrix and vocational assistance fee schedule. The changes went into effect on July 1.

Tennessee

Mediation And Hearing Procedures

The Bureau of Workers’ Compensation proposed amendments to rules regarding mediation and hearing procedures. Visit the bureau’s website for more information.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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