Workers’ Comp Docket
Bartender Serves Up Compensable Claim for Injury Due to Hugging Incident
LaFave v. Blue Lounge, 30 MIWCLR 39 (Mich. W.C.B.M. 2016)
Ruling: The Michigan workers’ compensation magistrate awarded benefits to a bartender, who injured her back while hugging an overly enthusiastic bar patron.
What it means: In Michigan, a worker’s injuries are compensable when the accident occurred while she was acting within the scope of her duties.
Summary: The magistrate awarded benefits to a bartender, who injured her back while hugging an overly enthusiastic bar patron. A video showed the two hugging and each woman lifting the other off the ground.
Finding the incident did not fall within the social and recreational exclusion, the magistrate explained that the bartender was performing her duties when the incident occurred. She was approached by a patron, whom she happened to know, and was hugged. As part of the hug each woman lifted the other off the ground. A bartender is expected to be pleasant and polite to the customers.
Also, immediately before the patron greeted and hugged the bartender and immediately after the incident she was engaged in her regular bartending duties. Being polite to an overly enthusiastic patron would arguably fall within the bartender’s duties.
The magistrate accepted the bartender’s uncontroverted medical evidence of disability and awarded benefits for a closed period. The magistrate denied benefits for her concurrent employment since she continued working there throughout the closed period. The magistrate also found that the bartender was entitled to reasonable and necessary medical expenses related to her treatment for her post-traumatic myofascial pain and low back strain.
Worker Wins Benefits for Accident During Personal Errand
Colquitt v. Starr Aviation, 31 PAWCLR 93 (Pa. W.C.A.B. 2016)
Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s finding that an agent’s injury arose out of and in the course of her employment.
What it means: In Pennsylvania, a worker’s temporary departure from performing her work to administer to her personal needs does not take her out of the course and scope of her employment.
Summary: The board affirmed the workers’ compensation judge’s finding that an airport ramp agent, who injured her left leg when the tug she was driving flipped over, was entitled to benefits. Her injuries arose out of and in the course of her employment.
The agent was given permission between flight arrivals to drive the tug to the other side of the terminal to meet her mother, who was bringing her money and feminine hygiene products. The board explained that because the agent was simply going to meet her mother, her injury occurred during a temporary departure from work during regular business hours, and therefore, her work injury fell under the personal comfort doctrine.
The board said that the employer’s arguments would have it consider whether the trip to meet her mother was necessary. The board explained that workers’ compensation is “no-fault” and there was no such precedent, so it rejected the argument.
The board also found that the employer’s argument of whether the agent was on the employer’s premises when she was injured was moot. There was no requirement that the agent be on the employer’s premises at the time of her injury because she was engaged in the furtherance of the employer’s affairs.
Employee Can’t Be Disqualified From Benefits Due to Violent Thoughts
Cory Fairbanks Mazda/The PMA Insurance Group v. Minor, No. 1D15-1600 (Fla. Dist. Ct. App. 05/25/16)
Ruling: The Florida District Court of Appeal held that a worker was entitled to temporary partial disability benefits.
What it means: In Florida, malevolent thoughts alone, without evidence establishing an intent to harm, do not establish misconduct.
Summary: An office worker for Cory Fairbanks Mazda sustained compensable workplace injuries to her head, neck, low back, and left knee as a result of two incidents of being struck by a door opened by a coworker. The worker thought that the coworker intentionally injured her. The worker received medical care for her injuries and returned to work with accommodations.
Later, the worker’s attorney informed the judge of compensation claims and the employer that the worker “expressed suicidal and homicidal ideation,” but not to the degree of imminent threat. The employer terminated the worker based on the attorney’s representation.
The employer and its insurer argued that the worker was ineligible for temporary partial disability benefits because she was terminated for misconduct. The Florida District Court of Appeal held that the worker was entitled to temporary partial disability benefits from the date of her termination.
After an examination, a psychiatrist described the worker’s expressions of anger as “blowing off steam” rather than declaring an intent to inflict physical harm. The worker said that she told her attorney that she wanted to punch the coworker.
The employer’s allegation of misconduct was based solely on the attorney’s statement that the worker shared that she had suicidal and homicidal thoughts arising from her injuries. The employer argued that the worker intended to harm or kill the coworker.
The court rejected the employer’s argument, stating that malevolent thoughts alone, without the requisite evidence establishing an intent to harm, do not meet the definition of misconduct.
Driver Allowed to Pursue Texas, Oklahoma Benefits Simultaneously
Maxwell v. Faith Transport, LLC, No. 113832 (Okla. Civ. App. 05/25/16)
Ruling: The Oklahoma Court of Civil Appeals held that it had jurisdiction over a claim brought by a driver.
What it means: Oklahoma may hold concurrent jurisdiction over a claim with another state.
Summary: A truck driver, who lived in Oklahoma, worked for Faith Transport, a Texas entity. He was severely injured in an accident while driving on duty in Texas. Faith’s workers’ compensation carrier, Texas Mutual Insurance Co., initiated payments of workers’ compensation benefits to the driver pursuant to Texas law.
Later, Texas Mutual Insurance Co. sent the driver a letter notifying him of the suspension of his benefits. The driver filed a workers’ compensation claim in Oklahoma. Faith rejected the claim, asserting that Oklahoma did not have jurisdiction over the claim. The Oklahoma Court of Civil Appeals held that it had concurrent jurisdiction with Texas.
The court explained that an Oklahoma worker injured while on the job in another state can pursue benefits from both jurisdictions simultaneously. The court rejected Faith’s argument that the driver’s acceptance of the Texas Mutual Insurance Co. checks amounted to an election of Texas law.
The court found that by filing a claim in Oklahoma the driver elected to initiate an Oklahoma claim. He performed no similar act in Texas. The payments the driver received pursuant to Texas law were voluntarily initiated by Texas Mutual Insurance Co.
The receipt of those benefits was not an election to proceed in Texas. The court explained that the right of election for a claim of benefits belongs to the worker, not an out-of-state insurance carrier.
The court explained that logic and statutory construction led to a conclusion that if the election to file a claim in Oklahoma did not prevent Texas benefits, then the receipt of Texas benefits does not prevent the election of a claim in Oklahoma. The court concluded that the driver was not precluded from electing to file a claim in Oklahoma, assuming that no final decision was reached in Texas.
The court found that the suspension of the driver’s Texas benefits was not the equivalent of a “final determination” because the suspension was subject to review or appeal.
Witnessing Aftermath of Car Accidents Created Compensable Mental Injury
Mantia v. Missouri Department of Transportation, No. ED103016 (Mo. Ct. App. 06/14/16)
Ruling: The Missouri Court of Appeals held that a worker’s mental injury was compensable and that she was entitled to benefits for a 50 percent permanent partial disability of the whole body and future medical benefits.
What it means: In Missouri, under the 2005 amendments to the law, evidence of the work stress encountered by similarly situated workers is not required to establish a claim for a mental injury. A worker must show that she suffered a mental injury resulting from stress that was work-related and “extraordinary and unusual” as measured by objective standards and actual events.
Summary: A worker for the state Department of Transportation provided traffic control and assistance at motor vehicle accident scenes. Over her 20-year career, she witnessed the aftermath of a multitude of serious accidents that involved catastrophic injury, dismemberment, and death. She began to suffer significant emotional and psychological symptoms.
The worker filed a claim for workers’ compensation benefits. The Missouri Court of Appeals held that she was entitled to benefits.
The court found that under the 2005 amendments to the law, evidence of the work stress encountered by similarly situated workers was not required to establish a claim for a mental injury. The worker had to show that she suffered a mental injury resulting from stress that was work-related and “extraordinary and unusual” as measured by objective standards and actual events.
The court found that the worker met this burden. Both parties’ medical experts agreed that the worker’s work-
related stress was the cause of her disability. The court found that witnessing the aftermath of serious accidents placed stresses on the worker more extreme than most workers would ever experience. The court found that the experiences were “extraordinary and unusual” and also “unmistakably exceptional and remarkable.”
The court found sufficient evidence supporting an award for 50 percent permanent partial disability of the whole body. The court also ordered the department to pay for the worker’s future medical care to treat her mental injuries. The court noted that continued antidepressant medication would likely require ongoing medical management by the prescribing physician.
Medical Evidence Shows Preexisting Conditions Caused Manager’s Disability
Buchinsky v. The Arc of Anchorage, No. S-15547, No. 1585 (Alaska 05/25/16)
Ruling: The Alaska Supreme Court held that a manager was not entitled to benefits because the work-related injuries were not the cause of her disability or need for treatment.
What it means: In Alaska, medical evidence that a worker’s preexisting conditions, rather than her work-related injuries, were the cause of her need for treatment will support the denial of a claim.
Summary: A case manager for The Arc of Anchorage sustained injuries when a filing cabinet fell on her twice in one week. The manager sought benefits. The Arc disputed the claim after its doctor said that the work-related injury was not the substantial cause of the manager’s later need for medical treatment.
The Alaska Supreme Court held that the manager was not entitled to benefits because she did not show that the work-related injuries were the cause of her disability or need for treatment.
The court found that substantial evidence supported a conclusion that the manager’s preexisting orthopedic problems, rather than her work-related injury, were the substantial cause of her disability and need for medical treatment of her knees, back, and neck.
One doctor compared MRIs of the manager’s neck both before and after the work injury and determined that the MRIs were almost identical. Imaging studies of her knees showed considerable arthritis before the work injury. A doctor told the manager after the work injury that she did not need knee surgery because her knee problems were due to her arthritis.
Also, a month before the work injury, the manager and a neurosurgeon discussed neck surgery to resolve her complaints related to pain and numbness.
The court pointed out that continuing pain after a work-related injury does not mean that the work-related incident caused the pain.
The court also noted that in this case the medical records did not show an immediate increase in pain in the period after the injury. The manager’s chiropractor released her to return to work without restrictions less than a week after the second incident. Her pain complaints increased a month later.
Does Exclusive Remedy Block Supervisor’s Suit Against Coworker?
A sales supervisor for General Beer-Northwest, a beverage distributor, called on customers in a territory of seven counties about four days per week. He was assigned a company vehicle, which he could also use for personal purposes.
The supervisor completed his regular shift and went home. Later, he was contacted by a coworker because a restaurant had requested beer, but the owner was unavailable when the coworker had attempted a delivery earlier that day.
The restaurant had called again and requested beer after the coworker returned home for the day. The supervisor and coworker decided to deliver the beer together. The supervisor anticipated that he and the coworker would visit bars after the delivery.
As the coworker’s vehicle was not authorized for personal use, they transferred the beer to the supervisor’s vehicle. They agreed that the supervisor would drive to the restaurant, but the coworker would then take over driving. The supervisor did not want to drive because he had been cited for operating while intoxicated.
The supervisor and coworker delivered the beer and decided to stay for two drinks. They left the restaurant and drove to an area with three bars in close proximity. They drank at all three bars and then left to head toward their homes.
While driving, the coworker missed a curve, and the vehicle entered a ditch. The accident left the supervisor paralyzed.
The supervisor sued the coworker and the coworker’s personal automobile insurer. The Circuit Court granted summary judgment to the coworker, finding that workers’ compensation held the supervisor’s exclusive remedy because he was within the course of employment at the time of the injury. The supervisor appealed.
Was the Circuit Court correct in finding that the exclusive remedy provision applied?
- A. No. The supervisor deviated from his employment when he went to bars with the coworker.
- B. Yes. The supervisor’s deviation from his employment had ended when the accident occurred.
- C. No. Workers’ compensation does not cover an accident that occurs when the worker is intoxicated.
How the Court Ruled
A is incorrect. The court explained that while the supervisor and coworker deviated from their employment when they visited the bars, when the accident occurred, the deviation had ended. The bars were along a reasonable route to return home.
C is incorrect. The court pointed out that under the law in effect at the time of the accident, intoxication does not negate workers’ compensation coverage.
B is correct. In Ninedorf v. Joyal, et al., No. 2014AP2762 (Wis. Ct. App. 05/17/16, unpublished), the Wisconsin Court of Appeals held that the Circuit Court properly granted summary judgment to the coworker and determined that workers’ compensation was the supervisor’s exclusive remedy.
The court explained that when a salesman commences travel in the course of his employment, subsequently deviates from that employment, but later resumes his route which he would have to follow in the pursuance of his employer’s business, the deviation has ceased and he is performing services incidental to and growing out of his employment. Here, the court found that the supervisor and coworker terminated their deviation when they resumed their trip home along a reasonable route.
Editor’s note: This feature is not intended as instructional material or to replace legal advice.
Cyber: The Overlooked Environmental Threat
“Cyber breach” conjures fears of lost or ransomed data, denial of service, leaked corporate secrets and phishing scams.
But in a world where so many physical operations are automated and controlled by digital technologies, the consequences of cyber attacks extend far beyond the digital realm to include property damage, bodily injury, and even environmental pollution.
Industrial companies that deal with hazardous materials — like power plants, refineries, factories, water treatment facilities or pipelines — are heavily dependent on automated technology to maximize their efficiency. Other sectors use technology to control HVAC systems, power and utilities, placing their properties at risk as well.
Cyber risks like theft of personally identifiable data have been highly publicized in recent years, but physical risks like pollution sparked by a cyber breach may not be as obvious.
“It’s significant to lose 100,000 customers’ Social Security numbers,” said William Bell, Senior Vice President, Environmental, Liberty International Underwriters, “but can you imagine if a waste treatment facility’s operations get hacked, gates open, and thousands of tons of raw sewage go flowing down a local river?”
In many industrial complexes, a network of sensors gathers and monitors data around machinery efficiency and the flow of the materials being processed. They send that information to computer terminals that interpret the data into commands for the hardware elements like motors, pumps and valves.
This automation technology can control, for example, the flow of pipelines, the level of water or waste held in a reservoir, or the gates that hold in and control the release of vast quantities of sewage and other process materials. Hackers who want to cause catastrophe could hijack that system and unleash damaging pollutants.
And it’s already happened.
In 2000, a hacker caused 800,000 liters of untreated sewage to flood the waterways of Maroochy Shire, Australia. In 2009, an IT contractor, disgruntled because he was not hired full-time, disabled leak detection alarm systems on three off-shore oil rigs near Long Beach, Calif.
Just last year, cyber attackers infiltrated the network of a German steel mill through a phishing scam, eventually hacking into the production control system and manipulating a blast furnace so it could not be shut down. The incident led to significant property damage.
According to a leading industrial security expert and executive director of the International Society of Automation, “Today’s operational technologies—such as sensors, SCADA systems, software and other controls that drive modern industrial processes—are vulnerable to cyber attack. The risk of serious damage or compromise to power and chemical plants, oil and gas facilities, chemical and water installations and other vital critical infrastructure assets is real.”
“The hacks could come from anywhere: a teenager looking for entertainment, a disgruntled worker, or more sophisticated criminals or terrorists,” Bell said. “There are certainly groups out there with political and ideological motivations to wreak that kind of havoc.”
“We are working to bring the cyber component of environmental risk to the forefront. Cyber security is not just an IT issue. Industry executives need to be aware of the real-world risks and danger associated with an industrial cyber attack as well as the critical differences between cyber security and operational technology security.”
— William Bell, Senior Vice President, Environmental, Liberty International Underwriters
The cleanup cost of an environmental disaster can climb into the hundreds of millions, and even if a cyber breach triggered the event, a cyber policy alone will not cover the physical and environmental damage it caused.
The risk is even more pointed now, as resource conservation becomes increasingly important. Weather related catastrophe modeling is changing as both flooding and drought become more severe and frequent in different regions of the U.S. Pollution of major waterways and watersheds could have severe consequences if it affects drinking water sources, agriculture and other industrial applications that depend on this resource.
Managing the Risk
Unfortunately, major industrial corporations sometimes address their environmental exposure with some hubris. They trust in their engineers to remove the risk by designing airtight systems, to make a disaster next to impossible. The prospect of buying environmental insurance, then, would be superfluous, an expression of doubt in their science-backed systems.
Despite the strongest risk management efforts, though, no disaster is 100 percent avoidable.
“We are working to bring the cyber component of environmental risk to the forefront,” Bell said. “Cyber security is not just an IT issue. Industry executives need to be aware of the real-world risks and danger associated with an industrial cyber attack as well as the critical differences between cyber security and operational technology security.”
The focus on network security and data protection has distracted industry leaders from strengthening operational technology security. Energy, manufacturing and other industrial sectors lack best practice standards when it comes to securing their automated processes.
After the Homeland Security Act of 2002, the Department of Homeland Security began comprehensive assessments of critical infrastructure’s cyber vulnerability, working with owners and operators to develop solutions. It also offers informational guides for private companies to do the same. The National Institute of Standards and Technology also continues work on its cyber security framework for critical infrastructure. Although this helps to establish some best practices, it does not completely mitigate the risk.
Many businesses don’t see themselves as a target, but they need to look beyond their own operations and property lines. They could be an attractive target due to their proximity to densely populated areas or resources such as waterways and highways, or nationally or historically significant areas. The goal of a cyber terrorist is not always to harm the target itself, but the collateral damage.
The Role of Insurance
“Environmental liability is still by and large viewed as a discretionary purchase,” Bell said, “but the threat of a cyber attack that can manipulate those systems and ultimately lead to a pollution incident is added incentive to buy environmental coverage.”
Liberty International Underwriters’ environmental coverage could respond to many pollution conditions set off by a cyber breach event.
“Property damage, bodily injury and cleanup of any pollution at or emanating from a covered property would likely be taken care of,” Bell said. “The risk is not so much the cyber exposure but the consequence of the attack. The resulting claims and degradation to the environment could be severe, especially if the insured was a target chosen because of their unique position to have a large effect on the local population and environment.”
LIU also offers dedicated Cyber Liability insurance solutions designed to manage and mitigate the cost of responding to a cyber attack and any resultant loss of data and associated liability. Coverage includes proactive data breach response services designed to help organizations comply with regulatory requirements and prevent data breaches.
LIU’s loss control managers are also on hand to conduct assessments of insureds’ properties and facilities to examine potential environmental impacts. They can educate brokers on the importance of enhancing cyber security to prevent an environmental accident in the first place.
“People are relying more and more on their systems, automaton is increasing, and the risk is growing,” Bell said. “We’re all focused on protecting data, but the consequences of a cyber breach can be much farther reaching than data alone.”
To learn more about Liberty International Underwriters’ environmental coverages and services, visit www.LIU-USA.com.
Liberty International Underwriters is the marketing name for the broker-distributed specialty lines business operations of Liberty Mutual Insurance. Certain coverage may be provided by a surplus lines insurer. Surplus lines insurers do not generally participate in state guaranty funds and insureds are therefore not protected by such funds. This literature is a summary only and does not include all terms, conditions, or exclusions of the coverage described. Please refer to the actual policy issued for complete details of coverage and exclusions.
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Liberty International Underwriters. The editorial staff of Risk & Insurance had no role in its preparation.