Wednesday, January 7, 2015

The Line

Going and coming.

This dichotomous term of art is probably the most active description in all of work comp. Not only does it evince bipolar conceptualization, but the contradiction in terms is the basis for interesting judicial results.

In Schultz v. WCAB, No. B255678, Craig Schultz worked as a technical drafter for JT3, a provider of testing, tactics and training support for the U.S. Air Force and Navy. His office was in Building No. 1440 at Edwards Air Force Base, a 308,000-acre facility in the Mojave Desert, near Lancaster, California, with roughly 200 other JT3 employees.

He arrived for work on the morning of May 24, 2012, in his Honda Civic, and used a security pass provided by JT3 to gain access to the base through its North Gate.

Schultz was about one mile past the gate when he began experiencing pain related to his diabetes and attempted to pull over. However, his foot hit the gas pedal instead of the brake, propelling his car into a ditch. The car flipped several times, and Schultz was severely injured.

He filed a claim for benefits, which was contested. The company's workers' compensation insurance carrier, The Hartford, argued that the going and coming rule barred liability since Schultz was not at his office at the time of injury but rather was still traveling to it.

Schultz argued that the coming and coming rule didn't apply but rather the "premises line rule" (that a worker's ordinary course of employment will commence when an employee enters the employer’s premises) applied - the work was on a secure Air Force base which required special access privileges, Schultz was required to use his personal vehicle on premises as a consequence rather than employer or military provided transportation, and there were multiple employer locations on the base to which Schultz could be (though he wasn't) required to travel to.

The trial judge agreed with Schultz, finding Schultz sometimes used his vehicle for the benefit of his employer, which precluded application of the "going and coming rule."

The Hartford appealed to the Workers' Compensation Appeals Board which reversed. The panel concluded an employee's occasional use of his personal car for work purposes does not render an employer liable for any and all injuries the employee incurs in the course of commuting to and from the worksite.

The 2nd District Court of Appeals on Tuesday concluded that the undisputed facts of the case demonstrated that "the premises line rule, rather than the going and coming rule, applies."

1) It was undisputed that he and other employees of JT3 would perform work at multiple locations on the base.

2) The base "is a secure location," and JT3 controlled Schultz’s access to the base since it was responsible for getting him a security pass.

3) It was undisputed that Schultz's crash happened one mile inside the North Gate of the base, which meant his accident "occurred on JT3’s premises, and not while Schultz was commuting."

4) "[R]egardless of his means of travel to Building No. 1440, Schultz would have been on the secure premises of Edwards owing only to his status as a JT3 employee."
Can't tell if this is coming or going...

The court reasoned that Schultz's employment "necessarily contemplated that he use the roads on Edwards," as there was no evidence of any other means available to him to reach Building No. 1440, and so, based on the application of the premises line rule, Schultz was within the course of his employment when he got hurt.

Commentators for the story on WorkCompCentral didn't express surprise at the ruling - it seems that the case didn't really provide anything novel or interesting from a legal standpoint.

But it does demonstrate something that I find troubling: though the court uniformly states that the employer, JT3, made the claim decisions and arguments against liability, that is not the case.

The defense posturing was all done by the insurance carrier - The Hartford.

And what is disturbing to me is that The Hartford certainly knew that there was liability - as I mentioned none of the commentators (mostly lawyers on both sides of the fence) said the ruling was not surprising because it was simply stating the law as they understood it to be.

No, it was The Hartford, which gladly had been taking JT3's premium dollars in exchange for the promise to take care of JT3's employees that may occasion an unfortunate situation at work, that was determined not to let any of those dollars out of its control.

The vitriol I'm sure to receive from the insurance community is going to be terse, I'm sure - the rationale is that once a claim is made then the carrier's financial obligations TO ITS SHAREHOLDERS requires that it take all necessary steps to ensure that any money received in premium be retained as earnings.


This was a case of clear liability. The Hartford had the obligation, and it knew it had the obligation, to provide benefits to Schultz (and, ergo, the policyholder, JT3). That it was able to pull the wool over the eyes of the WCAB in specious argument is testament to The Hartford's good lawyers - but I'm sure they also knew that ultimately it was a losing argument.

The sad thing is that the courts substitute the employer's good name for the carrier's bad actions making it seem that the employer was calling the shots - and we all know that is not how things happen, and in fact the employer pretty much loses all control over a claim once it goes to the carrier.

Sure the case represents nothing novel in a legal sense. Likewise it presents nothing novel about how workers' compensation is administered: financial goal overrules social mandate.

Unfortunately, the only loser is the injured worker, who had to wait two and a half years to find out that in fact benefits are due. In the meantime I'm sure Schultz has gone through hell and back trying to figure out how to pay the bills, how to get treatment, how to carry on with his life.

1 comment:

  1. "Unfortunately, the only loser is the injured worker, who had to wait two and a half years to find out that in fact benefits are due. In the meantime I'm sure Schultz has gone through hell and back trying to figure out how to pay the bills, how to get treatment, how to carry on with his life."

    And that, Citizens, is how #WorkComp works in America. "PROFITS BEFORE LIVES"

    Yes, the only losers of health, liberty and life are the #InjuredWorkers. The Corporations spend uselessly on insurance premiums for policies that are total con jobs, with permissible breaches of fiduciary responsibilities to all insured parties. Don't they raise the rates to cover defense firm file churning? No law enforcement. ALL FOR "PROFITS BEFORE LIVES."

    And who pays for all the copies and admin time of organizing all the fake QME/AME reports by industry leased/owned practitioners?

    Ought to be some EXIT INTERVIEWS.... why real doctors and lawyers leave #WorkComp?

    That's why #InjuredWorkers #ITK know that we are simply #CashCows for an industry that puts PROFITS BEFORE LIVES, with a little help from which agencies, some active participants, others who just 'look away'??

    Yep, time for the Department of Justice to write the #WorkComp #DomesticTortureReports for these UNITED STATES OF AMERICA.

    #InjuredWorkersUniting..... Join Us?