You Be the Judge

Did Parking Lot Fall Occur in Course and Scope of Employment?

A teacher is injured when she slips and falls on ice on her way into work. Was it in the course and scope of employment?
By: | August 5, 2016 • 2 min read
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A teacher at the child development lab, a child care facility on the campus of Oklahoma State University, arrived to work on a cold and icy morning.

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The parking lot and sidewalk surrounding the building where the teacher worked was owned and maintained by the university. The teacher was given a parking permit by the university, which gave her permission and required her to park in the lot.

After the teacher parked in the designated lot, she got out of her car, walked across the parking lot, and stepped onto the curb to go into the building. As she stepped onto the curb, she slipped and fell on ice.

On an injury report the teacher’s supervisor marked that the injury occurred on the employer’s premises. Also, the university initially determined that the teacher was in the course and scope of her employment when she fell and provided treatment and temporary total disability benefits.

The teacher subsequently sought additional treatment and compensation for her injuries.

The university denied compensability, arguing that her injury did not arise in the course and scope of her employment. The administrative law judge determined that the teacher’s injury did not occur in the course and scope of employment and denied her claim for additional treatment and compensation.

The Workers’ Compensation Commission affirmed the ALJ’s decision. The teacher appealed.

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

  • A. Yes. The teacher’s injury did not occur on the premises of her employment.
  • B. No. The teacher’s actions at the time of her injury were related to and in furtherance of her employment.
  • C. Yes. The teacher was not “on the clock” when she was injured.

How the court ruled

A is incorrect. The court pointed out that the university specifically admitted on the employee injury report that the incident occurred on its premises. The court found that the teacher arrived at her employer’s place of business and was on the university’s premises when she fell. The parking lot and sidewalk were on the university’s premises.

 

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C is incorrect. A dissenting judge asserted that the workers’ compensation law excludes an injury occurring in a parking lot before the worker clocks in or begins work for the employer and that the injury fell within the going and coming rule.

However, the majority found that because the teacher’s actions at the time of her injury were related to and in furtherance of the business of the university and she was on the premises of the university when she fell she was in the course and scope of her employment.

B is Correct. In Legarde-Bober v. Oklahoma State University, No. 114038 (Okla. 06/28/16), the Oklahoma Supreme Court held that the teacher’s injury occurred in the course and scope of her employment. The court found that the commission erred when it denied compensation for the teacher’s claim.

The court found that the teacher’s actions at the time of her injury were related to and in furtherance of the business of the university’s child development lab. The court also pointed out that at the time of her injury she was following the university’s instructions.

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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Risk Insider: Paula Vene Smith

The Risk Register: Dead or Alive?

By: | July 27, 2016 • 2 min read
Paula Vene Smith directs the Purposeful Risk Engagement Project (PREP) and is a professor at Grinnell College. Paula consults on risk in higher education, and has written Engaging Risk: A Guide for College Leaders. She can be reached at [email protected]

If your organization practices Enterprise Risk Management, senior leaders probably have endorsed a list of top risks that demand action.

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Once ERM is in place, the list undergoes review — maybe annually. After a few cycles it’s time to ask: Are we practicing risk management or list management? A risk register can either drive change, or persist as a lifeless spreadsheet.

Use these questions to test the vitality of your institutional list:

How long is your register, and how often does it change?

In my research on higher education risk management, I spoke with leaders at small to mid-sized colleges. Institutions with lengthy risk registers (50-80 items) didn’t see much change from year to year.

Their annual review consists of “checking in” to make sure people are working on their risks. Organizations with shorter lists (5-15 items) saw higher turnover. They acknowledge progress, shift gears and set new goals.

Have entire areas been overlooked?

For the initial risk assessment at Grinnell College, we brought in consultants. They interviewed senior leaders and staff to identify risks.

The purpose of a risk register is to drive action. A short, dynamic list serves this purpose better than a compendium that makes people feel they’re chipping away at something so massive that no amount of effort can make a difference.

Remarkably, the “top seven” list they produced did not include risks related to student life. Later, it emerged that the person then serving as vice president of student affairs had such a confident attitude, he convinced the consultants there were no risks in his area that he couldn’t handle.

Reviewing the register internally, we agreed that student risks had to be recognized.

Does one item encompass several distinct risks?

Risk identification often starts with concerns about a broad area. When, for example, we resolved to add something about students, the initial risk description was wordy and cumbersome. By the next cycle, we recognized multiple risks: substance abuse, mental health services, Title IX processes and improved student retention. Separating these items helped us develop mitigation strategies.

What happens to a risk that drops off the list?

Some of the risk leaders I interviewed found no need to drop risks from the register. They pointed out that no significant risk is ever completely mitigated. Nonetheless, we refresh our “top 10” periodically. Once significant mitigation is in place, the item can move off — but we’ll continue to monitor progress. If the risk remains well managed, we check in more briefly and less frequently.

Can risks come off the list too soon?

In the first year we worked hard on developing a policy to protect minors. It felt great to remove that item from the register. But we still needed to conduct training, step up background checks, and assist program directors.

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Should we have kept “minors on campus” on the register for another year? The time invested was not so different from that spent on top-priority items. Still, no harm was done by renaming this work as “monitoring.”

The purpose of a risk register is to drive action. A short, dynamic list serves this purpose better than a compendium that makes people feel they’re chipping away at something so massive that no amount of effort can make a difference.

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Sponsored: Lexington Insurance

Handling Heavy Equipment Risk with Expertise

Large and complex risks require a sophisticated claims approach. Partner with an insurer who has the underwriting and claims expertise to handle such large claims.
By: | August 4, 2016 • 5 min read
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What happens to a construction project when a crane gets damaged?

Everything comes to a halt. Cranes are critical tools on the job site, and such heavy equipment is not quickly or easily replaceable. If one goes out of commission, it imperils the project’s timeline and potentially its budget.

Crane values can range from less than $1 million to more than $10 million. Insuring them is challenging not just because of their value, but because of the risks associated with transporting them to the job site.

“Cranes travel on a flatbed truck, and anything can happen on the road, so the exposure is very broad. This complicates coverage for cranes and other pieces of heavy equipment,” said Rich Clarke, Assistant Vice President, Marine Heavy Equipment, Lexington Insurance, a member of AIG.

On the jobsite, operator error is the most common cause of a loss. While employee training is the best way to minimize the risk, all the training in the world can’t prevent every accident.

“Simple mistakes like forgetting to put the outrigger down or setting the load capacity incorrectly can lead to a lot of damage,” Clarke said.

Crane losses can easily top $1 million in physical damage alone, not including the costs of lost business income.

“Many insurers are not comfortable covering a single piece of equipment valued over $1 million,” Clarke said.

A large and complex risk requires a sophisticated claims approach. Lexington Insurance, backed by the resources and capabilities of AIG, has the underwriting and claims expertise to handle such large claims.

SponsoredContent_Lex_0816“Cranes travel on a flatbed truck, and anything can happen on the road, so the exposure is very broad. This complicates coverage for cranes and other pieces of heavy equipment. Simple mistakes like forgetting to put the outrigger down or setting the load capacity incorrectly can lead to a lot of damage.”
— Rich Clarke, Assistant Vice President, Marine Heavy Equipment, Lexington Insurance

Flexibility in Underwriting and Claims

Treating insureds as partners in the policy-building and claims process helps to fine-tune coverage to fit the risk and gets all parties on the same page.

Internally, a close relationship between underwriting and claims teams facilitates that partnership and results in a smoother claims process for both insurer and insured.

“Our underwriters and claims examiners work together with the broker and insured to gain a better understanding of their risk and their coverage expectations before we even issue a policy,” said Michelle Sipple, Senior Vice President, Property, Lexington Insurance. “This helps us tailor our policies or claims handling to suit their needs.”

“The shared goals and commonality between underwriting and claims help us provide the most for our clients,” Clarke said.

Establishing familiarity and trust between client, claims, and underwriting helps to ensure that policy wording is clear and reflects the expectations of all parties — and that insureds know who to contact in the event of a loss.

Lexington’s claims and underwriting experts who specialize in heavy equipment will meet with a client before they buy coverage, during a claim, or any time in between. It is important for both claims and underwriting to have face time with insured so that everyone is working toward the same goals.

When there is a loss, designated adjusters stay in contact throughout the life of a claim.

Maintaining consistent communication not only meets a high standard of customer service, but also ensures speed and efficiency when a claim arises.

“We try to educate our clients from the get-go about what we will need from them after a loss, so we can initiate the claim and get the ball rolling right away,” Clarke said. “They are much more comfortable knowing who is helping them when they are trying to recover from a loss, and when it comes to heavy equipment, there’s no time to spare.”

SponsoredContent_Lex_0816“Our underwriters and claims examiners work together with the broker and insured to gain a better understanding of their risk and their coverage expectations before we even issue a policy. This helps us tailor our policies or claims handling to suit their needs.”
— Michelle Sipple, Senior Vice President, Property, Lexington Insurance

Leveraging Industry Expertise

When a claim occurs, independent adjusters and engineers arrive on the scene as quickly as possible to conduct physical inspections of damaged cranes, bringing years of experience and many industry relationships with them.

Lexington has three claims examiners specializing in cranes and heavy equipment. To accommodate time differences among clients’ sites, Lexington’s inland marine operations work out of two central locations on the East and West Coasts – Atlanta, Georgia and Portland, Oregon.

No matter the time zone, examiners can arrive on site quickly.

“Our clients know they need us out there immediately. They know our expertise,” Clarke said. “Our examiners are known as leaders in the industry.”

When a barge crane sustained damage while dismantling an old bridge in the San Francisco Bay that had been cracked by an earthquake, for example, “I got the call at 6 a.m. and we had experts on site by 12 p.m.,” Clarke said.SponsoredContent_Lex_0816

Auxiliary Services

In addition to educating insureds about the claims process and maintaining open lines of communication, Lexington further facilitates the process through AIG’s IntelliRisk® services – a suite of online tools to help policyholders understand their losses and track their claim’s progress.

“Brokers and clients can log in and see status of their claim and find information on their losses and reserves,” Sipple said.

In some situations, Lexington can also come to the rescue for clients in the form of advance payments. If a crane gets damaged, an examiner can conduct a quick inspection and provide a rough estimate of what the total value of the claim might be.

Lexington can then issue 50 percent of that estimate to the insured immediately to help them get moving on repairs or find a replacement. This helps to mitigate business interruption losses, as it normally takes a few weeks to determine the full and final value of the claim and disburse payment.

Again, the skill of the examiners in projecting accurate loss costs makes this possible.

“This is done on a case-by-case basis,” Clarke said. “There’s no guarantee, but if the circumstances are right, we will always try to get that advance payment out to our insureds to ease their financial burden.”

For project managers stymied by an out-of-service crane, these services help to bring halted work back up to speed.

For more information about Lexington’s inland marine services, interested brokers should visit http://www.lexingtoninsurance.com/home.

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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Lexington Insurance. The editorial staff of Risk & Insurance had no role in its preparation.Advertisement




Lexington Insurance Company, an AIG Company, is the leading U.S.-based surplus lines insurer.
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