Is Parking Lot Stumble Compensable?
An assistant manager for a retail clothing store parked in the back lot of the shopping center near the back door of the store. When she left work, she walked to her car and put her purse on the passenger seat, and while walking around the back of the car to the driver’s side, she slipped and fell on black ice. She injured her right shoulder.
The assistant manager sought workers’ compensation benefits. The store denied the claim, arguing that the injury was not compensable because it did not occur on the store’s operating premises.
The assistant manager said that when she was hired, the store manager and a manager of the shopping center told her to park in the back lot. She admitted that other store employees parked in the front lot. Other employees said that other than during the holiday season, they received no instructions on where to park. No signs designated the back lot as an employee parking lot.
The administrative law judge found that the assistant manager’s injury did not occur within the store’s operating premises and was not compensable. The Workers’ Compensation Board reversed, finding that even though the store had no control over the parking lot, it controlled where employees parked. The board found that the assistant manager’s injury was within the store’s operating premises.
The store appealed.
The court explained that in determining whether a parking facility is within an employer’s parking premises, it considers: 1) whether the employer directly or indirectly owns, maintains, or controls the parking facility; 2) whether the employer designated where in the parking facility its employees are to park; 3) whether the employee parked in the designated area; and 4) whether the employee was taking a reasonable path from her car to her workstation when injured.
The parties agreed that the store did not own the parking facilities and had no obligation to maintain the facilities. No evidence showed that any parking spaces were specially allocated to the store. Also, no evidence showed that the store had any influence over the shopping center’s maintenance of the parking facilities. The court found that the store exercised no control over the parking facilities.
B is incorrect. Although the assistant manager said she had been told to park in the back lot, other employees said they received no such instructions. The court concluded that the store did not tell employees where to park.
C is incorrect. A dissenting judge opined that the store had indirect control over the parking lot. However, the majority concluded that the store had no control over the parking lot.
How the court ruled: A. The Kentucky Supreme Court held that the assistant manager was not entitled to benefits for her injuries. Hanik v. Christopher & Banks, No. 2012-SC-000791-WC (Ky. 06/19/14).
Editor’s note: This feature is not intended as instructional material or to replace legal advice.
Workers’ Comp Docket
Employee’s Perception of Being Trapped Doesn’t Justify PTSD Benefits
Rizzo v. Kean University, No. A-0174-13T4 (N.J. Super. Ct. App. Div. 06/11/14, unpublished)
Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that a professor’s psychiatric disability was not compensable.
What it means: In New Jersey, for a mental condition to be compensable, the objectively stressful working conditions must be peculiar to the particular workplace.
Summary: An assistant professor for Keane University claimed that the director of the undergraduate program entered her office, closed the door, and confronted her about her tone of voice in a conversation they had earlier that day. The professor claimed that the director kept her hand on the door and would not let her leave. The professor perceived the director’s actions as a threat of physical violence. The director said that she did not prevent the professor from leaving the office and she was of a smaller stature than the professor, so she could not have threatened to overpower her. After the incident, the professor saw a psychologist who diagnosed her with post-traumatic stress disorder. The professor sought benefits. The New Jersey Superior Court, Appellate Division held that she was not entitled to benefits.
The psychologist believed that the professor felt trapped when the office door was closed, bringing back memories of childhood abuse. The psychologist noted that the director’s position of authority, not her size, recreated the trapped feeling and triggered the PTSD.
The court rejected the professor’s argument that she demonstrated a causal relationship between her diagnosis and the incident. The court found that the incident was not objectively stressful based on the director’s testimony that she was not blocking the door or threatening the professor. Also, the size disparity between the professor and director could not render the incident objectively stressful. The court found the incident involved a brief meeting in an office with the door closed, a normal event in a work environment.
The court concluded that even though the incident may have “triggered” the professor’s PTSD, it did not cause the disability.
Nurse Can’t Prove Flu Shot Caused Bursitis
Simmons v. Nemours, No. N13A-10-008 CLS (Del. Super. Ct. 06/04/14)
Ruling: The Delaware Superior Court held that a nurse was not entitled to benefits for her bursitis.
What it means: In Delaware, a worker cannot establish causation when a doctor opines that the worker’s condition was from a separate nonwork-related injury.
Summary: A registered nurse for Nemours received an influenza vaccination as part of her employment. When the injection was administered, she felt an intense pain. A few days later, she repacked 10 boxes in her garage. The next morning, the nurse experienced soreness in her muscles. Later, she visited her doctor complaining of a sore left arm. An MRI showed bursitis. The nurse sought workers’ compensation benefits. The Delaware Superior Court held that she was not entitled to benefits.
Nemours did not dispute that the vaccination occurred during the course and scope of the nurse’s employment. The court found that the nurse did not establish that her injury was caused by the flu shot. An examining doctor said that the box incident would be compatible with producing a bursitis. The doctor opined that the nurse’s continued symptoms were not related to the flu shot. The doctor also testified about how injections are typically performed and the type of needle that he normally uses. The doctor explained that the tear was on the bursal surface and that supported his opinion that the nurse’s symptoms were from a separate injury.
The nurse argued that her physician’s testimony supported a finding that her shoulder injuries were caused by the flu injection. She asserted that the injection was given in a place higher than normal. The court found that the arguments seemed to require it to reweigh the evidence already weighed by the Industrial Accident Board.
Attorney’s ‘Networking’ Doesn’t Make Motorcycle Accident Compensable
Westerhof v. State of Wisconsin Labor and Industry Review Commission, No. 2012AP2332 (Wis. Ct. App. 05/22/14, unpublished)
Ruling: In an unpublished decision, the Wisconsin Court of Appeals held that an attorney was not entitled to benefits for injuries sustained in a motorcycle accident.
What it means: In Wisconsin, a worker’s injuries sustained during a social outing with friends who occasionally did business together are not compensable.
Summary: An attorney and shareholder for a law firm was paid based on his “actual work performed” and “clients brought into the firm.” In an effort to market himself, he joined a poker group comprised of small business owners. The group referred clients to each other. The law firm reimbursed the attorney for snacks or drinks he brought to the weekly poker event and for expenses arising from trips he took with poker group members. One of the group members was sued in small claims court, and the attorney filed an answer on his behalf. The attorney asked to join the group member at a motorcycle rally. While riding to the rally, the attorney lost control of his motorcycle and crashed, rendering him a quadriplegic. He sought workers’ compensation benefits, claiming that the injury arose out of his employment because he was “networking” on behalf of the firm. The Wisconsin Court of Appeals held that he was not entitled to benefits.
The court found that the motorcycle trip was not incidental to any asserted business purpose. The trip was not an event initiated by the attorney to entertain a client. Rather, he was a guest on a personal trip initiated and planned by the poker group member.
The court pointed out that the business generated by the attorney from the poker games was minimal. Even if the poker games could be considered client entertainment, it did not follow that every trip taken by the attorney and a poker group member together was client entertainment or business networking.
Worker’s Alleged Negligent Driving Doesn’t Block Benefits
Janiec v. Arko Express, LLC, 28 MIWCLR 30 (Mich. W.C.B.M. 2014)
Ruling: The magistrate awarded benefits to a worker for injuries sustained when the tractor-trailer he was driving tipped over.
What it means: To bar benefits under the “intentional and willful misconduct” provision for a worker’s violation of company policy, the employer must prove the worker’s injury “flowed directly and predictably” from the worker’s policy violation. The provision is not meant to bar benefits to a worker for negligent actions that led to his injuries.
Summary: The magistrate awarded benefits to a worker for injuries sustained when the tractor-trailer he was driving tipped over. The magistrate rejected the employer’s argument that the worker should be barred from benefits because he intentionally and willfully engaged in misconduct by driving too fast for the road conditions. The employer inferred that the worker’s negligent driving was intentional and willful. The employer’s argument went against the entire purpose of the workers’ compensation law, which is no-fault legislation.
As for the issue of disability, the magistrate found the worker’s testimony regarding the incident, the physiologic responses he developed as a result, his medical treatment, coupled with the testimony of his doctor, established that as a result of the motor vehicle accident, the worker sustained a large, left-sided herniation which displaced the nerve root, causing radiculopathy and discogenic low back pain, resulting in the necessity for physical restrictions. The worker also established disability and that he sustained wage loss.
Provision of Transportation Allows Comp for Worker’s Bus Injury
Skoff v. U.S. Airways, Inc., No. COA13-994 (N.C. Ct. App. 06/03/14)
Ruling: The North Carolina Court of Appeals held that a flight attendant’s injuries were compensable.
What it means: In North Carolina, under the provision of transportation exception to the coming and going rule, an injury during travel arises in the course of employment where the employer furnished the means of transportation as an incident to the contract of employment.
Summary: A flight attendant for U.S. Airways boarded an employee shuttle bus that was so crowded she had to stand to travel from the terminal to the employee parking lot. The bus driver braked suddenly during the trip, causing the flight attendant to fall forward. A piece of luggage hit her, and another airport employee fell on top of her. The flight attendant sustained injuries to her neck and shoulder that required medical treatment. She sought benefits. U.S. Airways denied her claim. The North Carolina Court of Appeals held that she was entitled to benefits.
The court found that the provision of transportation exception to the coming and going rule applied. U.S. Airways provided parking at the airport employee parking lot, furnished its employees with parking passes, and paid the parking fees to the airport as an incident to the flight attendant’s employment. The flight attendant had the right to use the bus that traveled between the parking lot and the terminal.
U.S. Airways asserted that it did not require flight attendants to ride the bus. However, evidence showed that it was a benefit to both U.S. Airways and employees and was approved by U.S. Airways as the “recognized, customary, and habitual way, if not the only or exclusive way” for flight attendants to travel between the parking lot and terminal. The court said that the use of the buses was implied in the assignment of parking passes, and these privileges were considered a matter of right for the employees.
Difficulty Determining Employment Contract Origin Ends Claim
Franco-Lopez v. Martinez, No. WD76942 (Mo. Ct. App. 06/03/14)
Ruling: The Missouri Court of Appeals held that it did not have jurisdiction over a worker’s claim.
What it means: Missouri has jurisdiction of workers’ compensation claims for injuries received out of state under a contract of employment made in the state.
Summary: A worker performed carpentry, construction, and framing work for his employer. He lived with the employer, who was married to his sister, in Missouri. He went with the employer to a home improvement store in Missouri to purchase materials for a roofing project in Kansas. While working on the project in Kansas, the worker fell off the roof and broke his left arm and pelvis. He received temporary disability benefits and medical aid under the Kansas workers’ compensation law. He continued to suffer pain that affected his ability to work. He filed a workers’ compensation claim in Missouri. The Missouri Court of Appeals held that it did not have jurisdiction over the worker’s claim.
The court rejected the worker’s argument that he formed a contract of employment with the employer in Missouri. While the court recognized that the worker lived in Missouri, he had to present other evidence that he and the employer intended to make a contract in Missouri.
The worker said that he went to a hardware store in Missouri on multiple occasions for the project in Kansas. On at least one occasion, the worker was given the employer’s credit card to buy supplies. The worker later drove the supplies to Kansas.
The court pointed out that the worker failed to provide receipts or records regarding the purchases. He did not testify that the employer wanted the materials purchased in Missouri even though the project was in Kansas or that purchasing the materials was a precondition of his employment. The worker was also unable to provide the date he drove from Missouri to Kansas or the date he began working on the Kansas project. The court said it was difficult to determine where the contract was formed.
Medical Expert’s General Opinion Fails to Establish Causation
Barrett v. Dominion Resources Services, No. 1945-13-2 (Va. Ct. App. 06/03/14)
Ruling: The Virginia Court of Appeals held that a worker was not entitled to benefits for his cellulitis.
What it means: In Virginia, a medical expert’s opinion that addresses causation in overly general terms may not establish that a condition of the worker’s employment caused his injury.
Summary: A worker for Dominion Resources Services was fixing a leaky pump seal over two days. The job required six hours of kneeling and squatting on a concrete floor. The floor was not wet, but the leak had left a film of dirt from muddy water on the floor. On the second day of working on the pump, the worker felt pain in his right knee. He later discovered that his knee was swollen and there was “one small little dot” at the center of the swelling. A few days later, he sought treatment and was diagnosed with cellulitis. His treating physicians never determined the exact cause of the cellulitis. The worker sought benefits. The Virginia Court of Appeals held that he was not entitled to benefits.
The court found that the worker did not establish that any condition of his employment caused his cellulitis. No treating physician linked his cellulitis to his work conditions. A medical expert concluded that the worker’s cellulitis could have been caused by working on his knees. However, the medical expert had never examined the worker, never spoke with him, and never identified any specific pathogen. The Workers’ Compensation Commission had found that the medical expert’s report addressed causation in overly general terms.
A Modern Claims Philosophy: Proactive and Integrated
According to some experts, “The best claim is the one that never happens.”
But is that even remotely realistic?
Experienced risk professionals know that in the real world, claims and losses are inevitable. After all, it’s called Risk Management, not Risk Avoidance.
And while no one likes losses, there are rich lessons to be gleaned from the claims management process. Through careful tracking and analysis of losses, risk professionals spot gaps in their risk control programs and identify new or emerging risks.
Aspen Insurance embraces this philosophy by viewing the data and expertise of their claims operation as a valuable asset. Unlike more traditional carriers, Aspen Insurance integrates their claims professionals into all of their client work – from the initial risk assessment and underwriting process through ongoing risk management consulting and loss control.
This proactive and integrated approach results in meaningful reductions to the frequency and severity of client losses. But when the inevitable does happen, Aspen Insurance claims professionals utilize their established understanding of client risks and operations to produce some truly amazing solutions.
“I worked at several of the most well known and respected insurance companies in my many years as a claims executive. But few of them utilize an approach that is as innovative as Aspen Insurance,” said Stephen Perrella, senior vice president, casualty claims, at Aspen Insurance.
“We do a lot of trending and data analysis to provide as much information as possible to our clients. Our analytics can help clients improve upon their own risk management procedures.”
– Stephen Perrella, Senior Vice President, Casualty Claims, Aspen Insurance
Utilizing claims expertise to improve underwriting
Acting as adviser and advocate, Aspen integrates the entire process under a coverage coordinator who ensures that the underwriters, claims and insureds agree on consistent, clear definitions and protocols. With claims professionals involved in the initial account review and the development of form language, Aspen’s underwriters have a full sense of risks so they can provide more specific and meaningful coverage, and identify risks and exclusions that the underwriter might not consider during a routine underwriting process.
“Most insurers don’t ever want to talk about claims and underwriting in the same sentence,” said Perrella. “That archaic view can potentially hurt the insurance company as well as their business partners.”
Aspen Insurance considered a company working on a large bridge refurbishment project on the West Coast as a potential insured, posing the array of generally anticipated construction-related risks. During underwriting, its claims managers discovered there was a large oil storage facility underneath the bridge. If a worker didn’t properly tether his or her tools, or a piece of steel fell onto a tank and fractured it, the consequences would be severe. Shutting down a widely used waterway channel for an oil cleanup would be devastating. The business interruption claims alone would be astronomical.
“We narrowed the opportunity for possible claims that the underwriter was unaware existed at the outset,” said Perrella.
Risk management improved
Claims professionals help Aspen Insurance’s clients with their risk management programs. When data analysis reveals high numbers of claims in a particular area, Aspen readily shares that information with the client. The Aspen team then works with the client to determine if there are better ways to handle certain processes.
“We do a lot of trending and data analysis to provide as much information as possible to our clients,” said Perrella. “Our analytics can help clients improve upon their own risk management procedures.”
For a large restaurant-and-entertainment group with locations in New York and Las Vegas, Aspen’s consultative approach has been critical. After meeting with risk managers and using analytics to study trends in the client’s portfolio, Aspen learned that the sheer size and volume of customers at each location led to disparate profiles of patron injuries.
Specifically, the organization had a high number of glass-related incidents across its multiple venues. So Aspen’s claims and underwriting professionals helped the organization implement new reporting protocols and risk-prevention strategies that led to a significant drop in glass-related claims over the following two years. Where one location would experience a disproportionate level of security assault or slip & fall claims, the possible genesis for those claims was discussed with the insured and corrective steps explored in response. Aspen’s proactive management of the account and working relationship with its principals led the organization to make changes that not only lowered the company’s exposures, but also kept patrons safer.
World-class claims management
Despite expert planning and careful prevention, losses and claims are inevitable. With Aspen’s claims department involved from the earliest stages of risk assessment, the department has developed world-class claims-processing capability.
“When a claim does arrive, everyone knows exactly how to operate,” said Perrella. “By understanding the perspectives of both the underwriters and the actuaries, our claims folks have grown to be better business people.
“We have dramatically reduced the potential for any problematic communication breakdown between our claims team, broker and the client,” said Perrella.
A fire ripped through an office building rendering it unusable by its seven tenants. An investigation revealed that an employee of the client intentionally set the fire. The client had not purchased business interruption insurance, and instead only had coverage for the physical damage to the building.
The Aspen claims team researched a way to assist the client in filing a third-party claim through secondary insurance that covered the business interruption portion of the loss. The attention, knowledge and creativity of the claims team saved the client from possible insurmountable losses.
Modernize your carrier relationship
Aspen Insurance’s claims philosophy is a great example of how this carrier’s innovative perspective is redefining the underwriter-client relationship. Learn more about how Aspen Insurance can benefit your risk management program at http://www.aspen.co/insurance/.
Stephen Perrella, Senior Vice President, Casualty, can be reached at Stephen.firstname.lastname@example.org.