Driver’s Death While Engaging in Criminal Activity Not Compensable

Fisher v. Cimarron Coach of Virginia, Inc., No. 13-1025 (W. Va. 06/01/15)

Ruling: The West Virginia Supreme Court of Appeals held that a driver’s death was not compensable because it did not occur in the course of and as a result of her employment.

What it means: In West Virginia, a worker’s involvement in criminal activities not related to her employment will undermine a claim for benefits.

Summary: A taxi driver for Cimarron Coach of Virginia was fatally shot by a passenger in her cab. The driver’s children sought workers’ compensation dependent benefits. The West Virginia Supreme Court of Appeals held that the driver’s death was not compensable. The assailant claimed that the driver picked him up with her boyfriend for the purpose of procuring drugs. The assailant said they went to a mall to meet a man to purchase drugs. After the assailant gave money to the man, he pulled out a gun and informed them that he was not going to give them drugs. While driving the assailant to his friend’s house after they left the mall, the assailant thought the others had attempted to defraud him. He pulled out his gun and attempted to shoot the driver’s boyfriend. Instead, he shot the driver.

The driver’s boyfriend stated that he was riding along with the driver when she saw a fare on the side of the road. The boyfriend said that the driver stopped the cab to inform the assailant that she could not pick him up because she had received a call from dispatch to pick up another fare. The boyfriend claimed that the assailant then pulled out a gun and demanded a ride. After the ride, the assailant stole her money and shot her.

A manager for Cimarron Coach said that the driver was advised to never pick people off the street without receiving a call from dispatch. Also, it was against company policy to have passengers in the taxi besides the paying customer. The manager noted that on the day of the shooting the driver called and said she could not pick up anymore fares because she had a sick child. The sick child story was later confirmed to be untrue. A toxicology report completed as part of the autopsy confirmed that the driver was using cocaine and an opioid on the date of her death.

The court found that the driver’s death did not occur in the course and as a result of her employment. The evidence supported an inference that she was either involved in a drug transaction that went bad or involved in a scheme to defraud the assailant. It was more likely than not that she was involved in acts not related to her employment when she was killed.

Coworker Immune From Suit Despite Alleged Intoxication While Driving Cart

Sims v. Marren, et al., No. OT-14-035 (Ohio Ct. App. 06/05/15)

Ruling: The Ohio Court of Appeals held that a worker’s suit against a coworker was barred under the workers’ compensation law.

What it means: In Ohio, a coworker’s suit against a coworker is barred when the actionable conduct occurred in the course of and arising out of the coworker’s employment.

Summary: Workers for Texas Roadhouse attended “Kitchen Managers University” on an island in Ohio. Attendees were informed that the event was “BYOB” and were told not to bring their vehicles to the island. Texas Roadhouse rented cabins for attendees and a space for group activities. The activity space was stocked with food and beverages, including alcoholic beverages, for attendees. Golf carts were the primary mode of transportation on the island, and attendees were told that they could rent golf carts. The last item on the itinerary indicated that the group would go downtown after dinner. A worker went to downtown bars after dinner with her coworkers. Once back at their cabin, they were invited to go back downtown to continue socializing. A coworker volunteered to drive the golf cart. While driving, the coworker swerved onto a curb. The worker was trapped under the cart and suffered an open fracture of her ankle and facial injuries. The worker received workers’ compensation benefits. Later, she sued the coworker. The Ohio Court of Appeals held that the suit against the coworker was barred.

The court explained that a coworker is immune from suit when the actionable conduct occurred in the course of and arising out of the coworker’s employment. The court found the coworker was entitled to immunity from suit.

The court found that the coworker’s alleged intoxication did not render her conduct outside the course of her employment. Her blood alcohol level was not tested, and she was not cited for driving under the influence. Also, Texas Roadhouse not only consented to or acquiesced in the consumption of alcohol and the use of carts to travel between the resort and bars, it encouraged such conduct. It invited attendees to “BYOB,” stocked the activity space with alcohol, and called for the event’s activities to continue at bars and restaurants. It was clear that attendees were using carts as transportation around the island.

Employer Steers Clear of Requirement to Pay for Medical Evaluation

Des Moines Area Regional Transit Authority v. Young, No. 14-0231 (Iowa 06/05/15)

Ruling: The Iowa Supreme Court held that an employer was not required to pay for a worker’s medical evaluation as a cost incurred in the hearing.

What it means: In Iowa, the Workers’ Compensation Commission cannot tax the fees of a physician arising from the evaluation of a worker done outside the statutory process for evaluating injured workers after maximum medical improvement as costs incurred in the hearing.

Summary: A bus driver for Des Moines Area Regional Transit Authority sustained a back injury when the bus collided with an empty vehicle on DART’s premises. The driver went to a physician for a medical examination. The examination was not authorized by DART. In the report, the physician concluded that the driver reached maximum medical improvement and suffered a permanent disability. The driver filed a workers’ compensation claim. The workers’ compensation commissioner concluded that the driver had a permanent partial disability. The commissioner also taxed as a cost against DART the expense of the medical examination and report under the administrative rule governing the assessment of costs in a hearing. In an appeal, the Iowa Supreme Court held that DART was not required to pay for the medical evaluation as a cost incurred in the hearing.

The court explained that a statute sets forth the process to follow in evaluating injured workers after maximum medical improvement. The statute does not prevent a worker from seeking evaluations outside the process at the worker’s expense. An employer is not obligated to pay for an evaluation obtained by a worker outside the process. A rule allows the commissioner to tax costs of obtaining a medical report.

The court concluded that the commissioner could not tax the fees of a physician arising from a medical evaluation done outside the statutory process as costs incurred in the hearing when a worker submits a report from the evaluation at the hearing. The court explained that under the commissioner’s interpretation, a worker can obtain an evaluation independent of the statutory process and be awarded reimbursement for the evaluation fee. The court explained that the concept of obtaining a report for a hearing is separate from the concept of a physical examination. The court concluded that the statutory process is the sole method for reimbursement of an examination by a physician of a worker’s choosing.

Dissenting judges opined that the commission had the discretion to tax the reasonable cost incurred by the driver in obtaining the physician’s report. The judges said that a physical examination of a worker is a “crucial foundational component” of a physician’s report.

Deviation From Work Ends When Driver Struck While Crossing Street

Razorback Concrete v. Perkins, No. CV-15-59 (Ark. Ct. App. 06/03/15)

Ruling: The Arkansas Court of Appeals held that a driver’s injuries occurred while he was performing employment services.

What it means: In Arkansas, a worker is performing employment services when he is injured while returning to work from a short deviation.

Summary: A tanker truck driver for Razorback Concrete drove a truck to Razorback’s facility for it to be loaded with raw cement. He then drove to another facility for unloading. The employee responsible for opening the facility gates had not yet arrived. While waiting for the facility to be opened, the driver drove a half-mile to a convenience store. He was not required to clock out. He was on paid company time and was not breaking Razorback’s policies by going to the convenience store. The driver parked the truck on the shoulder of the road and entered the store to buy breakfast. As he was crossing the road to return to the truck, he was struck by a vehicle and died a few hours later. The Arkansas Court of Appeals held that he was performing employment services at the time of the injury.

The Workers’ Compensation Commission found that the driver’s break was reasonable and permitted by Razorback. Razorback’s facility was not open, and this prevented him from completing his work task at the time. He was injured after finishing his break, ending any deviation. The commission found that the act of walking back to his truck “was clearly an act of returning to his job duties.” The court agreed with the commission’s decision.

The court rejected Razorback’s arguments that the driver was not in his truck or on company property at the time he was injured and was on a personal deviation from his work. The court found he was on paid company time, responsible for the truck during his workday, a half-mile away from Razorback’s locked facility, and returning to work after the permissible deviation had been completed.

Nurse Case Manager Must Be Removed From Case After Expiration of Contract

Trace v. University of New Mexico Hospital, No. 32,413 (N.M. Ct. App. 05/28/15)

Ruling: The New Mexico Court of Appeals held that the workers’ compensation judge improperly ordered a nurse case manager to continue serving in a case.

What it means: In New Mexico, the appointment of a case manager for ongoing coordination of health care services by a workers’ compensation judge is not a “litigation expense” that exempts a case manager’s fee from the procurement law.

Summary: A registered nurse for the University of New Mexico Hospital injured her back while lifting and turning a patient. The workers’ compensation judge found that the nurse’s injuries were compensable and that the injuries were permanent and required continuing treatment. The nurse asserted that the hospital’s adjuster continued to deny treatments and medications and that she had increasing pain. The WCJ appointed a nurse case manager to coordinate medical treatment. Later, the hospital sought to have the nurse case manager’s services discontinued because her employer’s contract with the Workers’ Compensation Administration expired. The WCJ denied the hospital’s request. The New Mexico Court of Appeals held that the WCJ erred in ordering the nurse case manager to continue serving in the case.

The hospital argued that the administration has a statutorily and administratively created system of case management and a WCJ cannot unilaterally order case management by circumventing the system. The hospital also argued that the WCJ’s order exceeded his authority and violated the procurement law. The court explained that the law directs the administration to contract with an independent organization to assist with administering the case management system. The plain language of the statute demonstrated that the legislature intended the case manager to be a contractor with a contract in effect. The administrative rules implement this intent by creating a framework requiring case managers to be contractors who are paid as provided in the contract. Here, the contract with the nurse case manager had expired.

An exception to the procurement law exists for litigation expenses. The court declined to find that the fee of a case manager is a litigation expense. While a case manager’s fee may be the consequence of litigation, such fees are not an expense of litigation. While the nurse case manager acquired substantial knowledge about the nurse’s case in 15 years and the disputes between the parties resolved, the court explained that a WCJ cannot exceed his statutory authority.

Housekeeper Fails to Show She Suffered Bug Bite on the Job

Todorovic v. Industrial Commission of Arizona, et al., No. 1 CA-IC 14-0048 (Ariz. Ct. App. 05/28/15)

Ruling: The Arizona Court of Appeals held that a housekeeper’s hand injury was not compensable.

What it means: In Arizona, the unexplained injury presumption applies only when an injury occurring within the time and space of work itself renders a worker unable to remember or communicate how the injury occurred.

Summary: A housekeeper for a Hilton hotel noticed redness and swelling on her right hand while working. When her hand was worse the next morning, she reported the injury to a supervisor. A doctor diagnosed an infected insect bite and hand cellulitis and possible abscess. The housekeeper underwent surgery. She sought workers’ compensation benefits. The Arizona Court of Appeals held that the housekeeper’s injury did not arise out of and in the course of employment.

The housekeeper argued that the unexplained injury presumption applied to create a rebuttable presumption that she was injured while doing the employer’s work. The court rejected the argument, explaining that the presumption applies only when an injury occurring within the time and space of work itself renders a worker unable to remember or communicate how the injury occurred. Here, the housekeeper’s finger injury did not prevent her from explaining how she was injured. She recounted the events of the injury to the employer and her doctors.

The court also pointed out that an independent medical examiner noted that most people who are bitten by an insect immediately notice the bite. The housekeeper indicated that she never felt or saw a bug bite her, and she did not recall having any cuts, scrapes, or abrasions at work. The court found that the examiner’s opinion that the housekeeper had not suffered an insect bite on the job was supported by sufficient medical evidence.