A Mother's Burden

The universal standard for employer/carrier liability in workers' compensation is AOE/COE: arising out of and occurring in the course of employment.

An analysis of case facts where there is an AOE/COE dispute requires bifurcation of these two standards. Arising out of: the employee was on the job, basically. Occurring in the course of: the employee's injury or death was a consequence of performing some beneficial service for the employer.

That last part arises frequently when an employee is goofing off and gets hurt - the "horseplay" exception. When an employee is playing games at work, unless of course sanctioned by the employer, he or she is not providing any beneficial service to the employer, removing any injury from a compensable determination.

Sometimes the facts get very, very close though, and in particular in workplace violence cases.

The Georgia Court of Appeals ruled as such in a murder case, allowing the mother or a worker shot twice in the head by a temporary staffer with a felonious history, to pursue a wrongful death case against the staffing agency and the business.

Christopher Lema had obtained a temporary position at an OA Logistics warehouse in Pooler, GA, through temporary agency, StaffChex.

The contract OA had with StaffChex required StaffChex to perform criminal background checks on each worker before work began.

However, Lema started working at the OA facility before the background check was done. Regardless, though, the check would reveal no criminal history because Lema had applied for his job using an alias.

Lema had a felony record for drug crimes and tampering with evidence. He had been released from incarceration eight months prior to going to work at the OA facility.

On Feb. 24, 2012 at around 3 p.m. Lema walked into the office of Jessica Rodriguez, an OA employee, and tried to kiss her. After Rodriguez pushed him off, Lema walked out of the office.

28-year old Nickifor Zephyrine just happened to be standing outside the office at the time waiting to inquire about refueling his forklift. Lema took out a .22 caliber pistol and shot Zephyrine twice in the head. He then re-entered Rodriguez's office and attempted to rape her. Rodriguez was able to escape and fled from the office.

Her screams drew attention from coworkers, who reported seeing Lema strip off his clothes, drop his gun and run naked across the parking lot toward a nearby wooded area, where he was apprehended by police without incident within minutes of the shooting.

Zephyrine was taken to Memorial University Medical Center, where he died that evening.

In 2013, Lema pled guilty to charges of felony murder, false imprisonment, battery and being a felon in possession of a firearm.

Zephyrine’s mother later filed suit against OA and StaffChex, contending they had been negligent in hiring Lema because there were numerous red flags in Lema's job application, including a misspelling of his fake name, and, according to the civil complaint, "he looked nothing like the picture on the identification card he presented to StaffChex."

OA and Staffchex moved for summary judgment, arguing the wrongful death suit against them was barred by the exclusive remedy provision of the Georgia Workers' Compensation Act, which was granted at the trial level.

Zephyrine’s mother appealed, arguing the fact that he had been killed while at work was insufficient to establish that the murder had arisen out of his employment, and the Court of Appeals agreed.

It was "beyond dispute," the Court said, "that Zephyrine's death arose in the course of his employment because it occurred while he was on duty performing his job functions at his employment location."

But, the court said the murder did not arise out of Zephyrine's employment as a matter of law.

"The words 'arising out of' mean that there must be some causal connection between the conditions under which the employee worked and the injury which he received," the court said.

In this case, the court said, the record was "devoid of any connection between the attack and Zephyrine’s work or workplace."

WorkCompCentral legal reporter Sherri Okamoto reviewed various state positions on work place violence in her story on this case - the conclusion is that they are very fact specific, which means lots of litigation over liability between, usually, insurance companies.

The tragedy, in my mind, isn't whether this is a case that is barred by the exclusive remedy of work comp, but rather that there are different silos of liability in the first place.

One of the guiding principles of workers' compensation from its inception was to eliminate protracted litigation. This case, for example, has taken four years just to get to the stage where a court says there is potential civil liability.

Even if Zephyrine's mother is ultimately successful, she has had to live with this tragedy for over four years.

I'm convinced there's a better way.

To read the Georgia Court of Appeals decision, click here.