This column is based on the experiences of a group of long-time claims adjusters. The situations they describe are real, but the names and key details are kept confidential.
After finishing sales meetings with a Russian client, a 60-year-old American business executive had a few days to himself in Moscow. He had visited the historical sites like St. Basil's Cathedral and Red Square, but he wanted to explore the city's more risqué side. His Russian clients suggested Klub Kronin.
The American was greeted by an English-speaking "hostess" and ordered a cocktail followed by two glasses of champagne. But his bill came as quite a shock, as he was charged the equivalent of $125. The tourist was not happy about the apparent shakedown. Soon, the hostess was nowhere to be found and the businessman found himself pleading his case to the bartender -- who seemed low on patience. He told the American to pay his bill and get out. Still steaming mad, the American put down the equivalent of $70 on the bar and left. He went around the dark street corner seeking a taxi but instead found a group of men that jumped him from behind and beat him badly.
The American executive sustained a head injury, cranial bleeding, a fractured jaw, several fractured ribs and a collapsed lung. He was hospitalized for 10-days, then required extensive post-acute care before he could even be repatriated to the United States.
Not surprisingly, the employer argued that the injuries did not occur during the course of business, and should be denied. The injured worker, of course, wanted his medical bills covered by his employee-sponsored health insurance. The employee's salary qualified him for the maximum temporary total compensation rate. The employee did not regularly make overseas trips but due to a co-worker's illness he was given the assignment to Russia. Before sending him on his way, the sales manager reviewed the sales presentation but offered no other advice about the trip.
I assigned an international case manager who visited the hospital and reported that the American was weak and slurring his speech. The case manager said that the claimant would be out of work for a minimum of 26 weeks. He would also need outpatient physical, cognitive and speech therapy, and a permanent impairment seemed likely. I felt like the coverage was there but I was not certain whether the extension of the trip -- and the facts of the loss -- met the test of "arising out of the course of employment." If the claim was denied, would the claimant even be brazen enough to start litigation?
My defense attorney said that the travel benefitted the employer and created exposure for "portal-to-portal" coverage. Despite the fact that he was at a gentleman's club a day after he finished work in Moscow, the injuries were still compensable. If the employer never sent the claimant overseas, he would not have gotten injured. Plus the company did not have a policy against extending trips for personal reasons and didn't provide guidance on dangers associated with overseas travel.
I felt confident in my case presentation to our third-party administrator's internal claim committee and they agreed that it was compensable. Afterwards I had a conference call with the employer and its broker, discussed my findings and recommended the case be accepted to avoid costly litigation. Based on my documentation and research they too agreed that -- although he was hardly working while visiting a Moscow gentleman's club -- it would be easier to pay the benefits than fight a losing battle.
JARED SHELLY is the editor of this column and can be reached at firstname.lastname@example.org
March 1, 2013
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