Figure It Out

If you're an engineer, like my son, then you see everything as black and white, one or zero, on or off.

There's not much room in an engineer's mind for imprecision, which is why the vagaries of the law can be frustrating.

Which is why a recent Pennsylvania case on the going and coming rule is interesting.

Most states generally (one of those vague terms engineers hate) don't recognize as compensable worker injuries that occur "off the clock" even if it occurs on an employer's premises.

Other states — including Maryland, New Jersey, New York, North Carolina, Georgia, Kentucky, California, Missouri and Ohio — recognize a "premises exception" to the going-and-coming rule: an employee's commute doesn't begin until the employee leaves his employer's premises, which might include the parking lot depending upon the amount of control the employer has over that property.

Pennsylvania treats a worker's off-the-clock injury as compensable if it occurs on an employer's premises within a reasonable time before or after the employee's work shift, and it is attributable to a "condition of the premises or by the operation of the employer’s business or affairs thereon," the Commonwealth Court said on Monday in reversing a Workers' Compensation Appeals Board decision.

In Quality Bicycle Products vs. WCAB, 1570 C.D. 2015 (4/25/2016), James Shaw had been at work in the warehouse on Nov. 13, 2013, when he got a frantic call from his fiancée telling him that their 9-year-old daughter was missing from school. He told his manager he needed to leave right away, then ran to his locker and got his coat and car keys. Shaw tried to clock out, but his manager told him to just go.

Shaw raced out of the building, but he would later testify that he felt a popping sensation in his knee before he got more than 10 to 12 feet across the parking lot.

He said this sensation was followed by excruciating pain, which left him unable to bear any weight on his right leg, causing him to fall to the ground.

A coworker came to his aid, along with Shaw's manager. They called for an ambulance, and while they were waiting for the paramedics to arrive, they learned Shaw's daughter had been found.

Doctors later determined Shaw had cracked his patella, and he underwent surgery on Nov. 20, 2013.

Quality (the insurance company is not identified by the court, a stylistic application which I contend is incorrect because the actual parties are obscured thus mischaracterizing the "employer's actions) contested the claim filed by Shaw for benefits.

The Workers' Compensation awarded benefits to Shaw, and the Workers' Compensation Appeals Board upheld this decision.

Quality sought judicial review, although it settled Shaw's claim while its appeal was still pending. Thus, Shaw did not respond to Quality's petition for review.

The court said that Shaw's injury "was caused by his own act of running, which was not a condition of (his) employer’s premises."

But what about "the operation of the employer’s business or affairs thereon"? The injury occurred on the employer's parking lot where all employees parked under the direction of Quality, and Shaw fell only 10-12 feet from the exit door.

The court noted that, according to Shaw's testimony at trial, his knee had popped before his right foot made contact with the parking lot surface and he collapsed. The parking lot, therefore, "did not cause or contribute to the causative chain to claimant’s injury," the court said.

The courts' job is to deal with the vague and opaque. The law can not precisely define all circumstances all of the time.

The Commonwealth Court may seem to be "splitting hairs" in the Shaw case. But actually they worked in an engineer-like fashion. They dissected the facts and applied the rule systematically - it was black and white, one and zero, on and off...

My son called me from jail one a Sunday evening after getting into trouble during his freshman year of engineering school, looking for bail money.

"How old are you Tony?" I asked.

"Eighteen," was his reply.

"Right," I affirmed. "What does that make you?"

"An adult."

"Correct," I again affirmed. "What are you studying in school?"

"Engineering."

"Right again," I said. "And what do engineers do?"

He was silent, then said, "I dunno..."

"They figure it out!"

And I hung up the phone.

He figured it out.

Lack Of Control

A case out of Montana demonstrates that whether an injury falls within the ambit of workers' compensation jurisdiction has mostly to do with employer control, or in this case, lack of control.

Tamara L. Holtz worked as a flight attendant for Delta Air Lines. Oh June 21, 2014 she flew out of Salt Lake City and would have a layover in Cincinnati before a return flight to Salt Lake City on June 23.

Delta paid her a $2.40 per hour as a "per diem wage" for her time as soon as she signed in to work in Salt Lake as well as a hotel room in Cincinnati for the layover, but did not reimburse for layover meals. Flight attendant wages were paid as soon as the airplane’s brakes were released until they were engaged upon landing.

Delta neither restricted where Holtz could go nor what she could do during her layovers, but Holtz testified the airline could call "at any point" to tell her it had changed her schedule.

After arriving at her hotel in Cincinnati, Holtz took a nap and then met up with some friends for lunch.

The group proceeded on motorcycles southeast on U.S. Highway 52, also known as the Ohio River Scenic Byway.

The motorcycle Holtz was a passenger on crashed into one of the other motorcycles about 40 miles away from Holtz' hotel, and Holtz suffered a leg injury in the accident.

The Montana Workers' Compensation Court granted summary judgment in favor of the Delta's carrier, Indemnity Insurance Co. of America (the court opinion does not say why Montana was the state of jurisdiction).

Holtz was on a "break" from her employment during her layover, the court said, because "it was an interval within her scheduled work time when she was not required or expected to perform her job duties, and could attend to personal matters."

In addition, the court opined, it would be ludicrous to find that "the greater Cincinnati metropolitan area, in its entirety" was a Delta "worksite."

The coup d' grace was a slate of Montana high court rulings that essentially make the "lunch hour" non-compensable because the employer lacks control over the employee's activities during that break period.

The foundation for the Arising Out Of/Course Of Employment rule lies in the master/servant relationship. The characterization of that relationship is all about control - when the master has control over the servant then there shall be liability on the master for what happens to the servant when providing service or acting under the direction of the master.

Unfortunately for Holtz, hitching a motorcycle ride on a layover took her activity outside the control of Delta. That would seem to be a logical conclusion, but this is workers' compensation ... I guess the risk of asserting a claim did not offset the potential of success.

The case is Holtz v. Indemnity Insurance Co. of North America, No. 2015-3577, 04/06/2016.

Anxiety Resolution

After so many years traveling the workers' compensation conference circuit, absorbing all of the education, statistics and analysis, it's nearly indisputable that perceived conditions of employment have more to do with a person's perception of injury than any actual injury itself - what the experts like to categorize as biopsychosocial factors.

These factors lead to seemingly incomprehensible case outcomes.

Like the recent Connecticut Supreme Court affirmation that an athletic FedEx driver was totally disabled for nearly 11 months despite running 4-minute miles working out during that same period.

William Hart exercised vigorously about 2 hours every day before reporting for work as a delivery driver for FedEx. He was a model employee from 1987 until June in 2009 when he received 2 written warnings: One causing a fuel spill when he failed to secure the cap on his truck's gas tank, and the other was for exceeding his allowable vacation time when he missed five days of work after his mother died.

Hart claimed he was very distressed by the reprimands and began to fear he would lose his job.

While he was at work on Sept. 15, 2009, Hart said he began to feel ill and light-headed after falling more than an hour behind schedule on his route. He said he was experiencing a fluttering sensation in his chest and a shortness of breath, along with a growing sense of panic, as he rushed through his stops.

After making a delivery to the fire station on Liberty Street in Pawcatuck, Hart asked a paramedic to check him out. The fire department summoned an ambulance after determining Hart's heart rate was over 200 beats per minute.

After he got to the hospital and doctors began tracking his pulse, Hart's heart rate went up to over 300 beats per minute (compare to normal which is between 60 and 100 BPM).

[DePaolo's Note: these are classic symptoms of a panic attack, usually associated with an anxiety disorder, which is not necessarily related to any physical or situational stimulus.]

The doctors at the hospital diagnosed Hart with a "paroxysmal atrial flutter," a malfunction in the right atrium, the heart’s natural pacemaker.

Doctors also determined that he had a low level of potassium in his body, which was indicative of dehydration. Hart remained in the hospital overnight, during which time his heart rate returned to normal.

Two weeks later, he was back at the gym and working out once more, although he said he was doing "less strenuous" exercises that he had previously done. His doctors continued to monitor his heart and kept him off work until Aug. 7, 2010.

Hart also began seeing a psychologist, who diagnosed him with post-traumatic stress disorder, depression, panic disorder with agoraphobia, and hypochondriasis.

Meanwhile, Hart returned to his normal workout routine, which including running on a treadmill at a 15.2% grade and a pace of 4.2 miles per hour, for 30 minutes.

FedEx's expert witness cardiologist testified that most people could not sustain that pace for three minutes.

Hart has not worked since September 2009 though, and he has been collecting Social Security disability benefits since May 2012.

The Workers Compensation Commission ruled Hart's claim compensable, and that was upheld by the Review Board.

FedEx then sought judicial review, and the Appellate Court transferred the case straight to the Supreme Court., in part arguing that Hart's physical condition was precipitated by lawful personnel actions, which the law says can not be compensable.

The Supreme Court upheld the Commission ruling because FedEx didn't present "any plausible explanation as to how the dehydration and resultant mineral deficiencies that precipitated the claimant’s heart problems and associated PTSD could have been the result of personnel decisions, real or imagined."

The court also said there was evidence that "other factors arising from the claimant’s employment, factors that were unrelated to any actual or potential personnel actions, also were substantial factors in causing his PTSD and associated anxiety, panic and depression" and that his "exemplary physical condition and impressive exercise regimen" didn't mean he couldn't still suffer a work-related heart injury.

My bet is that Hart would still be working today, and would have dismissed his anxiety attack (which, by the way, is not necessarily a psychological issue) as a personal issue had there not been the reprimands, particularly the time off for his mother's death.

Animosity towards the employer manifested via claim of work-induced physical symptoms is, despite all of the evidence, statistics and research, still not well appreciated.

Which is why workers' compensation is often referred to as the working person's dispute resolution system...

To read the court's decision, click here.

Garbage In, Trash Out

Traveling the nation, I routinely field criticism about the California workers' compensation environment, particularly from those on the insurance side of the spectrum - our laws, and in particular how they're interpreted by the courts, drive them crazy.

California's 2nd District Court of Appeal this week issued an unpublished ruling ("unpublished" is a technical legal reference meaning that the opinion can not be cited in other cases as precedence) that is one of those cases.

Carlos Rodas, a 32 year old dishwasher for Guido's Restaurant, suffered a pulmonary hemorrhage while hauling a load of trash to the garbage bin behind the restaurant.

A restaurant patron found Rodas dead in the parking lot.

Truck Insurance Exchange, the insurance company for Guido's, contested liability for the claim because there was no evidence that his work-related activities had caused the artery in his lungs to rupture.

There was evidence that Rodas' lungs were weakened by tuberculosis.

The workers' compensation judge found Rodas' death compensable based on a medical report Truck argued was not substantial evidence, and a split Workers' Compensation Appeals Board panel sided with Truck.

Commissioners Deidra Lowe and Katherine Zalewski said there was no evidence that Rodas had exerted himself by rolling the trash can out on a dolly, that there also was no evidence of a smell emanating from the garbage, and that the medical report was therefore based on "speculation and unfounded assumptions."

Commissioner Marguerite Sweeney dissented, arguing that the medical report relied on by the trial judge "was eminently reasonable" in assuming that "transporting the large, overflowing (probably heavy) trash can across the parking lot required a good deal of physical exertion" and that there were "noxious fumes wafting from the overflowing trash can."

The 2nd DCA on Wednesday reversed the WCAB, finding compensability, and said it was "unreasonable to assume Rodas' work played no role."

"That garbage emits odors that will cause a person to cough and that physical exertion is required to manhandle a large trash can over a distance of 300 feet are eminently reasonable inferences validated by common experience," the court said.

Given the evidence that Rodas' lungs were weakened by tuberculosis, the court said it was reasonable to infer that such exertion had caused Rodas to begin coughing ultimately rupturing his lungs and causing him to suffocate from blood in his lungs.

Causation could "logically and reasonably be inferred from the circumstantial evidence," the court said.

Commentators in the WorkCompCentral story on the case this morning critiqued that the court stretched and that "widows and orphans make for bad law," in particular because the court noted that the medical report should not have been admitted into evidence in the first place except that the defense waived the objection at the trial level by failing to raise it.

Which raises a good point about playing in the California workers' compensation sand box: the law is to be liberally construed in favor of the injured worker.

The insurance industry doesn't like it, but the rule simply means that there's a greater, some would say much greater, burden to dispute benefits than there is to claim benefits.

Which is why, after all is said and done, when in the California system generally it's just cheaper and more efficient to either pay, or take a discount in the settlement of, a claim. Maybe it makes no sense, perhaps it drives non-Californians crazy, but that's the way it is.

The case is Rodas v. WCAB.

Violent Work

The Grand Bargain is a strange deal sometimes because we don't always know where the boundary lines are, particularly when it comes to the sad cases of work place violence.

Just last Thursday I wrote about a Georgia case where the appellate court ruled that the mother of a worker shot twice in the head by a temporary staffer with a felonious history could pursue a wrongful death case against the staffing agency and the business.

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."

Today it was reported that the Louisiana Court of Appeals ruled that a worker deserves a second chance to assert her claims that her employer failed to protect her from a coworker who ran her over with a pallet jack after threatening to hurt her.

Towana Carr and Kevin Webb were employees at Sanderson Farms. There was "bad blood" between them because of the soured relationship between Webb and Carr's cousin.

Webb had been Carr's cousin's live-in boyfriend, and the couple had a child together, according to the complaint.

Carr says Webb has a history of domestic violence involving her cousin, and that Webb threatened Carr herself with physical violence after witnessing one act.

She believed Webb would make good on his threat, and told her supervisors. They told her, according to the complaint, the company could not do anything because the threat had not been made on Sanderson Farms property.

As Carr was returning from her lunch break on Jan. 4, 2013, Webb struck her in the leg with a pallet jack loaded with one ton of dry ice.

The impact knocked her sideways. Webb then turned the jack around and struck Carr a second time, in the chest.

Carr filed a claim seeking comp benefits for her injuries, but a workers' compensation judge denied her claim. The judge found that Carr's injuries did not arise out of her employment, because they were the product of a "non-work related dispute" with Webb.

Carr then filed a civil suit against Sanderson Farms. She claimed the company was negligent because it had done nothing to keep her safe when it knew her work put her in close proximity to Webb for eight hours a day, five days a week.

She also claimed that the company could be held vicariously liable for Webb's conduct.

Sanderson Farms responded that Carr's exclusive remedy for any negligence claim against it had to lay in the workers' compensation system. It also asserted that it could not be vicariously liable for the alleged intentional act committed by Webb because that conduct was not within the scope of his assigned duties or in furtherance of Sanderson Farms' business pursuits.

The district court judge granted summary judgment in favor of Sanderson Farms, and Carr appealed.

The 1st Circuit Court of Appeals upheld most of the dismissal but left a door open to try again.

Under Louisiana law, an employer can be held vicariously liable in tort for the intentional acts of its employees, the court said, but an employer is not vicariously liable for an employee's conduct merely because his employee committed the intentional tort on the business premises during working hours.

"Vicarious liability will attach only if the employee who commits the intentional act does so within the ambit of his assigned duties and in furtherance of his employer's objective," the court explained.

Since Carr's petition for review did not allege any facts explaining why Webb intentionally struck Carr with the pallet jack, the nature or scope of Webb's employment duties, or how his intentional tortious conduct was incidental to those duties, the court said there was no possible basis to support a finding of vicarious liability.

However, the court said the trial court was incorrect to find that the workers' compensation system provided the exclusive remedy for Carr's injury.

Although negligence claims by an employee against her employer for injuries sustained on the job are typically barred by the exclusivity provision of the workers' compensation act, the court said, the act does not cover injuries arising out of a dispute with another person over matters unrelated to the injured worker's employment.

"When an injury or illness is specifically excluded from the scope of the Workers' Compensation Act, the exclusivity provision of the act does not apply, and the employer is not immune from a tort suit based on that injury," the court said.

An "employer has a duty to exercise reasonable care for the safety of his employees and to not expose them to unreasonable risks of injury or harm," so it was possible for an employer to be held civilly liable to an employee who was the subject of an intentional act committed by a co-worker if the employee notified the employer of threats made by the co-worker away from the workplace, opined the court.

Even though Carr had provided no allegations about the content of Webb's threats, the number of threats, or the relation between the threats and the intentional act, it's possible such facts exist, so, "out of an abundance of caution, this matter will be remanded to allow Carr the opportunity to amend her petition."

There's an interesting dichotomy at play, particularly in cases involving work place violence.

An employer, statutorily and by common law, generally has a duty in the United States to provide a safe work place. How that standard is established and supported is viscous, at best.

So, it makes some sense that there is a penalty against the employer for failing to do so. The law should promote a duty by the employer to do all it can to provide a safe work environment.

On the other hand, if an employer has done all it reasonably can to provide safety at the work place, then the payment of a workers' compensation obligation may come down to who actually is encumbered with the duty - the employer's insurance company, third party administrator, or the employer itself.

Each has their own take on whether or not liability should be accepted under the work comp system, and part of the equation comes down to which pocket the money comes out of.

From the social perspective, though, just how far must an employer delve into an employee's personal life to ensure the safe work place?

Or put another way, just how much personal responsibility can an employee delegate?

The lines are unfortunately opaque.

Workplace violence cases are very fact specific, and seem to depend on whether one is looking at the financial responsibility or social responsibility (and sometimes those get confused too).

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

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.

The Foundation

My mother in law, Pat, lives next door. She's 86 years old and set in her ways. She has her habits, she has her opinions, she has her routine.

She's overweight and has been for as long as I've known her. Pat has had long standing issues with borderline diabetes, syncope, vertigo, high blood pressure and a host of other issues.

And like most in her age bracket, she loves sweets.

LOVES sweets. Donuts, cookies, sweet rolls, candy - pretty much everything and anything that someone near diabetic with attendant complicating symptoms should not eat. But Pat has very little self-control. She likes to shop, and likes to shop for what she likes to eat - food with sugar as its primary ingredient.

Pat

Because of her various medical issues, Pat sees doctors often. She has her long standing general practitioner who counsels and warns her about her diet. Her ophthalmologist (cataracts) warns her about her diet. Her dentist warns her about her diet. Specialists, internists, neurologists, and other professionals ... have warned her about her diet.

Last week Pat was referred to a nutritionist by her primary care physician, presumably to provide her with the knowledge and tools necessary to construct and maintain a diet appropriate for a woman with her suite of medical conditions.

And yesterday she consulted with her internist for more counseling about her diabetic state and nutritional admonishment.

Then she went to the grocery store and in her cart my wife found cookies, cinnamon rolls, and cake.

"I'll only have one cookie a day," Pat dissembled actively. "And besides, these were on sale."

Pat loves shopping and loves bargains and, even more, loves buying things particularly when shopping and when a bargain.

She knows this diet is not healthful for her. She knows eating sugar is anathema to her medical condition. She knows that she could cut her pharmaceutical bill by hundreds of dollars a month ... if only she could control her sugar urge (habit).

In the workers' compensation world, Pats various medical issues would be called co-morbidities.

I always thought that was a weird term. Morbid = death. So, if work doesn't kill you, then these other things will!

The payer community doesn't like to pay for someone's death that isn't directly related to work. I get that. I don't like to pay for things I don't cause or use either.

But here's the problem: you can counsel, you can penalize, you can incentivize - but you can not, but for the rarest of examples, change behavior.

And the older one is, the more entrenched behavior becomes.

Because there's a whole host of issues underlying that behavior that nobody has any control over, in the least someone who is not entire psychologically self-aware, or is in denial, or uses that behavior as a control and comfort for an otherwise out of control, uncomfortable life.

Essentially, all of the attempts to alter long term, entrenched behavior that has origins well outside of nearly anyone's understanding, are futile and a waste of time and money.

Pat likes sweets. Sugar is Pat's comfort zone. She knows it's bad for her. She knows it underlies her high blood pressure, her dizziness, her upset stomach.

And she'll continue to consume it in high doses regardless of the risks.

Pat doesn't need to be told that she shouldn't consume sugar, because there's no way to control her outside the examining room.

Rather, Pat should be provided with alternatives. The medical professionals know she craves sweets. They also know that as soon as she's out of the medical office she's in the store buying cookies that she'll claim to consume one per day (but in reality one BOX per day). There are lots of alternatives to refined sugar products: fruit, artificial sweeteners, and other products that would satisfy her carbohydrate conundrum.

Workers' compensation faces these issues daily on a large scale. Co-morbidities: evil health, medical and psychological phenomenon that interfere with return to health, return to work, retrograde of disability.

Trying to change the behavior underlying co-morbidities is futile most of the time, no matter how much we believe it is better for the person, worker or not.

I'm not saying we should just give up trying to ferret out co-morbidities to deal with them in an industrial setting. But we shouldn't obsess over them. Recognize them, understand that likely these won't change, and move on. Make some attempt at correction, but realize when it is ineffective and fruitless.

And then provide some options that are better health options; perhaps not optimal, perhaps not what really should be done, perhaps less than effective - but better than the alternative and within the person's behavior pattern.

You can't teach an old dog new tricks. But you can build upon the foundation.

A Going and Coming Lesson

The Education Department at WorkCompCentral is in the middle of a pilot program to place young lawyers into the work comp industry.

Working with Pepperdine University School of Law (my alma mater of course) we have a handful of graduates who have taken the bar exam and awaiting results whom we are educating on the intricacies of work comp, and having them mentored by both defense and applicant firms so they can get a feel for the practice experience.

Then, assuming they pass the bar, we will try to place them with a firm seeking young professionals with adequate "experience" so that the firm can put that graduate to immediate work. 

Going or coming?

Of course, there is also mentoring and follow up that WorkCompCentral provides too - and just the other day I had one of the graduates in my office Monday for her two hour slot, and I grilled her on AOE/COE, and more particularly the "exceptions" and the "exceptions to the exceptions."

So I challenged Cynthia on AOE/COE, and in particular the Going and Coming Rule...

It just so happened that on Monday the Idaho Supreme Court released an opinion on an excellent sample case!

In Kelly v. Blue Ribbon Linen Supply, No. 42658, 11/02/2015, published, Barbara Kelly, a Blue Ribbon Linen Supply employee, suffered a foot injury in September 2013 when a cart rolled over her foot. Blue Ribbon paid her medical and time-loss benefits for her injury.

In November 2013, Blue Ribbon's insurance carrier directed Kelly to attend a medical evaluation with Dr. Robert Friedman in Post Falls.

It is approximately 125 miles each way from Kelly's workplace in Lewiston to Post Falls.

Kelly attended the evaluation, and on her way home, she got into a car accident.

She was not at fault for the crash, which involved a head-on collision with a Ford F150 that had crossed the centerline of US 95.

Kelly suffered severe physical injuries to her lower extremities, and her doctor restricted her from any weight-bearing on her legs, which necessitated her admission to a skilled nursing facility while she recovered.

Blue Ribbon disputed the compensability of Kelly's injuries from the car accident, and the Industrial Commission found her injures were not compensable because they were the product of an intervening cause rather than Kelly's employment or original injury.

The Supreme Court found otherwise: Kelly's trip to the doctor was made at the request of her employer's insurance carrier, for the benefit of the carrier, and she had a statutorily-imposed duty to go to the examination.

"In our view, Kelly's situation is analogous to two situations where compensation is available to the worker: the special errand and traveling employee exceptions to the coming and going rule," the court said.

"When an employee's work requires him to travel away from the employer's place of business or his normal place of work, the employee is covered by worker's compensation," the court explained.

In this case, the court posited, "Kelly was essentially required by her employer to travel away from her normal place of business, Lewiston, for an IME in Post Falls."

So there you go Cynthia - an adept lesson in the going and coming rule, and exceptions.

Welcome to the world of workers' compensation!

*******shameless plug*******

If you or your firm is interested in our program, please contact David Weiss or Floydell Carter for more information. We need new people in work comp, and this is our first step towards getting more folks interested in the industry as a career. There is no cost to the graduate (they don't have any money anyhow!) and the cost to the employing firm is $3,500 - what we would charge for that educational package.

Prolonged Living Is Hazardous

Yesterday I went on about how workers' compensation evolved over the years, how it will continue to evolve, and that the original "Grand Bargain" was still alive, just that we were bargaining over ideas, concepts and issues that weren't known or in existence 100, or even 20 years ago.

This morning I recalled an article in the Los Angeles Times at the beginning of this year that seemed to epitomize why we are now bargaining over matters that weren't of consequence before.

The headline, "Even for the active, a long sit shortens life and erodes health," bespeaks the modern hazards of today's office workers: those who sit for long hours face a higher than average risk for contracting cancer, cardiovascular disease, type 2 diabetes and early death, even for those who exercise according to minimum daily recommendations.

According to the research, which is a review of 47 clinical studies, published in the Annals of Internal Medicine, even those who engage in vigorous exercise were estimated to be 16% more likely to die of any cause in a given time from a long day of sitting than were those who do not sit for long.

Researchers estimate that more than half of the average American's waking life is spent sitting.

The authors extrapolated from available research that those who spend long hours in sedentary activity are 90% more likely than those who don't to develop type 2 diabetes.

Of course, there is no comment on how many bon-bons are consumed while watching television by that risk category.

Also, that 90% risk factor blends completely sedentary people with regular exercisers, and the study findings that researchers worked with weren't powerful enough to discern whether regular exercise mitigated that risk.

And, while the likelihood of dying from cardiovascular disease rises less dramatically (about 18%) with long hours of sitting, as does the risk of cancers (between 13% and 16%), according to the report, the authors still note a correlation.

In addition, the studies reviewed by the researchers also observed higher rates of breast, colon, colorectal, endometrial and endothelial ovarian cancer among those who logged long hours in a chair.

The big caveat of course is that the research doesn't identify just how much sitting is bad, what the co-morbities were with those that sat more than others, and what maladies are more likely to be provoked by sitting than not.

Here's the problem: we have come to identify, catalogue and diagnose new maladies, diseases, and injuries that are just as likely to implicate the employment setting as any other setting.

None of this was contemplated by the originators of the Grand Bargain.

And all of this creates new bargaining positions.

If we were to take these findings at face value, then no matter what we do at work, there is a compensable consequence.

Who's going to pay for it?

When we get down to the Grand Bargain argument, that's really what the question is.

Are we ready to be responsible for ourselves?

Or have we become a nation that can't bear personal responsibility any more? In which case workers' compensation really isn't relevant any longer because the scope is too limited, and we just need to abdicate all of our choices to a single, universal system of matriarchal pandering...

We've become adept at recognizing diseases that aren't really diseases. We, as a society, like to make diagnosis for symptoms that shouldn't really be categorized as a disease.

American society has not only become adept at blaming others, but also for seeking new ways to defer personal responsibility.

So, now prolonged sitting is hazardous to one's health. Of course, prolonged living, itself, is hazardous to one's health.

That is NOT what was contemplated by the Grand Bargain.

The Private Loss

The tune changes when different hats get worn.

"I now understand what they feel like," Jane Hays is quoted as saying in a Texas Tribune article the other day. "We just need to have a workers' comp system that is fair to the workers, the injured workers."

"In a case with serious and disputed legal issues," Randal Beach, Executive Director of Texas Political Subdivisions, a non-profit self-insurance pool administering workers' compensation benefits for local government entities rebutted to Bob Wilson, "the only prudent course of action is to seek a determination from the system set up for that purpose."

Beach refers to Hays' injuries - the 73 year old member of the Board of Trustees of TPS who sustained serious injuries in a car accident returning from a board meeting. The meeting occurred over the course of three days at The Woodlands. Her regular employer, the Temple Independent School District, marked the reason for her absence as "SCHBUSINESS (DIST)," or school business, in computer logs.

She was returning home after the board concluded its last meeting on Saturday, July 11, at around noon. The accident occurred at approximately 1:30 p.m.

The injuries to her right lower extremity required amputation. Hays still faces multiple other surgeries for her injuries.

Hays was highlighted in the Tribune because even though she is an "insider" her claim was denied on the grounds that it did not arise out of or in the course of employment. TPS is claiming the "going and coming" rule excludes coverage.

The "going and coming" rule says that workers' compensation is inapplicable for injuries or claims incurred during the commute to and from work.

TPS says it wants to take the "safe road" because they have an obligation to members, the public and TPS' insurers and reinsurers, to make sure the law is followed.

Hays was a volunteer Director of TPS and is not paid for the job. Instead they paid for her travel, her lodging at the meeting and her meals.

As explained by Beach, "For these meetings, the pool reimburses trustees' expenses, since they are not otherwise compensated for serving on the Board. For workers' comp purposes, the trustees are considered 'employees' of the pool when they are attending Board meetings. When they travel to Board meetings they are traveling to their 'place of work'. The pool does not direct the method, route or schedule of their travel or where else they go on their way to work or on their way home."

But expenses related to the "commute" are reimbursed by TPS as noted above, and TPS directs where the meetings are held (different resorts are chosen - the meetings are not held at "home office").

In other words, TPS essentially controlled the who, what, where and when of "the job."

And Hays, for her part, provided benefit and service to TPS.

But TPS' three legal opinions differed, according to Beach.

"All agreed that to overcome the 'coming and going rule as applied by Texas courts," Beach wrote Wilson, "the claimant would have to establish that the meeting from which she was traveling home was a 'special mission'. One opinion stated that it was a 'special mission' because the meeting was not held at the home office. Another opinion held that the fact that the Board had chosen to hold this meeting at another location did not convert it from a regular meeting to a 'special mission', and therefore the 'coming and going' rule excluded coverage. The third opinion stated that because there were novel issues involved, including statutory differences in the treatment of public and private employees, and legal questions distinguishable from prior case law, the case could go either way. They recommended following the process established by law to determine whether coverage exists."

That's the problem I have with this case - LAWYERS advised going to court, abdicating responsibility so no one person at TPS has to own up to questions by other board members, the public, or, gasp, the underwriting insurance carriers and reinsurers who may be asked to chip in - this is an expensive claim for crying out loud!

Lawyers advising to let the courts decide is like an orthopedic surgeon advising to have surgery - hello!

In a system that is allegedly "no fault" there seems to be enough fault being thrown around to make that a laughable description.

Wilson replied to Beach, "your comments leave me little solace or assurance that the spirit of the Grand Bargain is alive and well. The problem with workers’ comp today on a broader scale is that we are only concerned with doing what is legal, and not that which is simply right."

Beach essentially admits that denials are standard operating procedure for the pool, telling the Tribune, "I have to treat it like another claim. It doesn't matter how much I love Jane, and I do."

If Hays were Beach's mother, I'm sure the outcome would be quite different.

I try to paint workers' compensation as a social benefit.

But cases like this put too much cynicism in the way, because those who are tasked with paying see it as a private loss.

Work Is Not A Neutral Risk

Life is a risk - embrace it, don't dispute it.

Workers' compensation is supposed to be a "no fault" system. The basic concept is that if you get hurt at work then you get benefits.

It is amazing to me, though, how many states introduce fault as a concept. A recent Illinois appellate case is a prime example.

The Illinois Appellate Court last week ruled against an employer and said that a welder who injured his knee while pivoting on the wheeled stool he used at work was entitled to benefits.

The employer argued that using the stool was not a peculiar risk and that activities associated with "daily living" aren't supposed to be the subject of workers' compensation.

Illinois law provides that workers "should not award benefits for injuries caused by everyday activities like walking, bending, or turning, even if an employee was ordered or instructed to perform those activities as part of his job duties, unless the employee’s job required him to perform those activities more frequently than members of the general public or in a manner that increased the risk."

This is the "increased risk" doctrine that several other states embrace.

The "increased risk" test was the prevalent standard for compensation in the United States 40 years ago, but most states use "positional risk" standard, which applies a presumption that an injury "arises out of" employment if it occurs while the employee is at work. The reason is that the benefit of greatly reduced litigation outweighs the risk that once in a while a non-legitimate case gets through the system.

In Adcock v. Workers' Compensation Commission, Adcock injured his right knee on the job, and his doctor imposed limitations on his ability to twist, kneel, or walk extensively.

In order to accommodate his restrictions, Knaack, Adcock's employer, provided him with a wheeled stool so he could move about his workspace in a seated position. I have to commend Knaack for this proactive return to work accommodation.

Adcock said he was constantly moving along the length of the workstation on the stool, and swiveling from side-to-side, as he worked.

He said he was unable to maneuver the stool using his right leg because of his knee injury, so he always had to use his left leg to propel the chair.

Adcock said he felt his left knee "pop" while he was twisting towards his work station in May 2010. His doctors later determined he had torn the meniscus in his left knee.

The arbitrator determined this injury was compensable.

"Conducting welding duties from a rolling stool would simply not be a risk to which the general public would likewise be exposed," he opined.

The Workers' Compensation Commission reversed, finding "(t)he act of turning, even in a chair, is an activity of everyday life," so it was "a hazard to which the employee would have been equally exposed apart from the employment."

The Circuit Court judge upheld this decision, but the Appellate Court on Friday reversed, finding compensability.

Presiding Justice William Holdridge wrote for the majority.

He noted that the act of turning while in a seated position is "an activity of everyday life" which is regularly "faced by all members of the general public."

Thus, he said, it was not “distinctly associated” with the Adcock's employment, and an injury from engaging in this act would only be compensable if something about Adcock's job exposed him to a risk of harm that was greater degree than the risk faced by the general public.

Since Adcock performed his job duties under time constraints, and his job duties undisputedly required that he be constantly moving in his chair, Holdridge reasoned Adcock was moving the chair more frequently than members of the general public would, which increased his risk of injury "both quantitatively and qualitatively."

Under such circumstances, Holdridge said, Adcock clearly confronted a neutral risk of daily living to a greater degree than members of the general public by virtue of his employment.

The ruling comes at a unique time in Illinois work comp history as political activity is focused on a more refined attempt at amending the system. Business leaders want cheaper work comp insurance. Labor wants better protection. It seems both are losing right now.

I don't know the specific statistics, but my educated guess is that litigation is a major contributing cost factor to the Illinois system. Litigation arises out of disputes. One big dispute is whether or not an injury arises out of and occurs in the course of employment.

As I said, in most states, with rare exception (such as horseplay) if one gets hurt at work then benefits are due; i.e. "no fault."

A concurring opinion was written in the Adcock case, which I think explains why having any sort of "risk" qualification increases disputes, which thus increases costs.

As the concurrence noted, "almost everything we do at work, we can do at home," but the difference is at work, "you are doing what employer hired you to do," so an injury in the course of engaging in that activity should be compensable.

If Adcock's employer didn't want to take on the risk that he'd hurt himself using the stool, then it could just pay total disability benefits and let Adcock stay home, the concurring opinion stated. But the employer "asked him to come to work an tool around on the seat" doing as much work as he could despite his medical restrictions, and "they got what they bargained for."

It's too bad that Adcock got hurt during a work accommodation. Knaack did the right thing, and I can understand the frustration. But sometimes bad stuff happens. The goal of work comp gets defeated when fault is introduced, and the Illinois standard creates its own extraneous costs by creating disputes when none should exist.

It Wasn't For Donuts

If the mission had been to procure a donut the result may have been different.

The Appellate Court of Connecticut said in a decision released Monday that a police officer's injuries incurred from a motor vehicle accident while dropping his children off at day care before the start of his shift were compensible.

Connecticut recognizes the "portal-to-portal" rule: certain workers, principally police officers and firefighters, are statutorily deemed to be within the "course of employment" from the moment they leave home, until they return as part of a public policy recognizing that some workers are "always on duty" when they are moving among members of the public, and thus are "always exposed to the dangers of their profession."

Officer Steve McMorris had been a patrol officer for the New Haven Police Department. He lived in Hamden, a suburb of New Haven, with his girlfriend, Anais Rivera. Both worked nights, from 11 p.m. until 7 a.m.

McMorris had two children from a previous relationship, Devin and Jaiden. On nights when both he and Rivera worked, McMorris would take the children to stay overnight at a day care center on Chapel Street in New Haven.

On the evening of June 25, 2011, McMorris left his home with his children in his private vehicle, while dressed in his fully equipped service uniform. He would later testify that his plan was to drop his children off at day care, then continue on to the police station to report for duty.

He followed the normal route he took to work, and before he reached the turn where he could have had to deviate from his normal route, he was involved in an accident.

Both McMorris and Jaiden suffered injuries.

The workers' compensation commissioner for New Haven found McMorris' injuries to be compensable, and a Review Board panel upheld this decision last November.

The Police Department then sought judicial review, arguing McMorris' accident should not be compensable pursuant to General Statutes Section 31-275(1)(E)(ii).

Section 31-275(1)(E)(ii) carves out an exception to the coverage afforded to portal-to-portal workers. It provides that a personal injury will not be deemed to arise out of the employment if the injury is sustained at the portal-to-portal worker's home, and while the employee is engaged in "a preliminary act or acts in preparation for work."

The Department argued that McMorris was engaged in a "preliminary act" of dropping his children off, in preparation for coming to work.

The Appellate Court reasoned that Section 31-275(1)(E)(ii) was inapplicable to McMorris, since his accident had not happened while he was at home.

"Section 31-275(1)(E) is two-pronged and injuries are not compensable only if both prongs of the statute are met," the court said. Since the department conceded that McMorris' accident happened after he had left his home and was on his way to work, the court said this concession was fatal to its argument.

The court said it couldn't consider McMorris' plan to stop at the day care center a "significant deviation from his work route" either. The Appellate Court reasoned that McMorris' act of driving his kids to day care was "inconsequential relative to his job duties."

Those interviewed by WorkCompCentral reporter Sherri Okamoto commented that while they thought it was unusual for the Department to appeal since the law is fairly well settled in Connecticut, the decision clarifies that doing two things at once is not necessarily a deviation, but that "you have to really take yourself out of the course of action that benefits the employer" to lose the protection of the comp system.

Those interviewed also commented that these facts might not work in neighboring New Jersey.

Had McMorris "been in New Jersey, picking up some nice New Jersey bagels," then the "substantial deviation" argument might have worked, said Lawrence Morizio of Cousins, Desrosiers & Morizio, a claimants' attorney and chairman of the Connecticut Bar Association's Workers' Compensation Section.

There was no commentary about a donut deviation exception though.

The case is McMorris v. City of New Haven Police Department.

Buffalos in Illinois

My daughter and I flew N6641M to Catalina Island yesterday.

Catalina/Avalon airport is 24 miles as the Bonanza flies from Los Angeles Harbor and is, I think, one of those magical places that few ever get to experience.

My daughter was excited to see a few of the famous Catalina buffalo. She asked the airport manager on duty when we checked in if there were any around.

"There were quite a few roaming near the airport yesterday," he said. So we paid our fees and hiked the Airport Soapstone loop - a short 2.3 mile walk without a whole lot of elevation change.

The airport is at 1,600 feet above mean sea level, so the vistas are spectacular, and the nearly unspoiled environment served up red tailed hawks feeding, wild flowers blooming, and a soapstone quarry.

But no buffalos. There was plenty of buffalo evidence and a couple were large enough for discus throws, which of course was tempting, except for the relative freshness of the discs.

In workers' compensation several states serve up more buffalo discs than others.

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Illinois is the one state that has a workers' compensation system as much maligned as California's.

And like California, political attempts to "reform" it focus on costs arising out of the symptoms rather than the underlying "disease" that gives rise to the symptoms.

Newly-elected Republican Gov. Bruce Rauner made workers' compensation reform a center-piece of his campaign, albeit with little detail, but his fellow Republicans in the legislature have some ideas.

In search of buffalo.

A legislative package, filed by Sen. Kyle McCarter, R-Decatur and Rep. Dwight Kay, R-Edwardsville, would, among other things, tighten the rules governing compensation for travel-related accidents, place a 500-week limit on cumulative awards for partial disabilities, reclassify shoulder and hip injuries and define the term "injury" so that claimants would have to prove they are medically impaired to "a reasonable degree of medical certainty, based on the medical findings."

The new definitions are included in Senate Bill 770 and its companion, House Bill 2421, and some companion bills (see below).

Supporters of these bills refer to them as the "causation" bills because the bills try to more tightly define what a work injury is by calling an "accident" an "occurrence arising out of the employment, resulting from a risk incident to the employment, and in the course of employment at a time and place and under circumstances reasonably required by the employment."

SB 770 and HB 2421 also would require workers to show that an "accidental compensable injury" was a major contributing cause of the injury – meaning it was more than 50% responsible for the injury compared to all other causes combined for which treatment and benefits are sought.

The two bills also provide that injuries would be deemed to include the aggravation of a preexisting condition only for as long as the aggravation continues to be the contributing cause of the disability.

Also included in the Kay/McCarty package are:

SB 769 and HB 2419 , which covers instances in which an employee is working for multiple employers and the employers named as a respondent in the claim is aware of the worker's other jobs. Under the bills, the worker's wages from all of the jobs would be considered as being earned from the employer deemed liable for the injury.

SB 771 and HB 2420 would bar temporary partial disability benefits to workers discharged for cause. Claimants would be entitled to a hearing to restore benefits before the Illinois Workers' Compensation Commission and would receive retroactive benefits if the commission rules that worker was not fired for cause. "Discharge for cause" is defined as a discharge resulting from an employee's voluntary violation of a rule or policy not caused by his or her disability.

SB 772 and HB 2422 would limit the maximum cumulative compensation for workers receiving partial disability to 500 weeks. Awards for partial disability would be deducted from any award for a subsequent injury to the same portion of the body. In addition, injuries to the shoulder would be considered injuries to part of the arm and injuries to the hip would be considered injuries to part of the leg.

Seems to me that these bills would simply invite a large dosage of litigation to define what the definitions actually mean when applied to real live facts of a case.

But this is politics, and the point of politics is to propose something that might be distasteful to some in order to get an advantage on something else that may or may not be related.

And with Democrats solidly holding majorities in Illinois' Senate and House, Republican's know they have an uphill battle if they don't compromise on some other topic.

The opinion from business groups is that Rauner may offer an increase in the state's minimum wage as a bargaining chip to pass workers' compensation legislation. Rauner also announced a budget Wednesday that calls for cutting state spending by $6.7 billion, which also may enter into the political debate over business reforms according to sources interviewed by WorkCompCentral.

And we also know that what gets introduced into a legislative session is far different than what ultimately makes it to the governor's desk, if at all. Similar legislation has failed to clear the General Assembly since 2011.

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We didn't see any buffalo on our hike and I didn't toss any discs.

So my daughter and I lunched at the DC-3 restaurant at the airport.

We both ordered buffalo burgers.

They were good.

I'm Dual Purposing!

I'm in Austin, TX, for the next couple of days.

My Aunt Gail died late last week after a protracted fight with cancer, so the extended family is here to both commiserate and celebrate - last night we drank some wine, ate some pasta, and did lots of hugging.

Today we'll attend services, probably shed some tears, and then drink more wine, eat more pasta, and do more hugging.

It's all so Italian...

In between the family activities I'll be meeting with some Texas workers' compensation industry people - Austin after all is headquarters to the state's Division of Workers' Compensation.

Which brings up the dual purpose doctrine - if I were to get injured or succumb to a disease while in Austin, there's a chance it could be "industrial" and covered by workers' compensation, though frankly I'm not sure I would want that to occur since I have good general health insurance and am largely in control of my own salary...

The Ohio Supreme Court yesterday flat out said that doctrine has no place in that state's workers' compensation system.

This is kind of big news in Ohio - while the court had never explicitly rejected the doctrine, it had never embraced it either.

The closest the Ohio Supreme Court ever came to addressing the dual-purpose was in a 1951 case called Cardwell v. Industrial Commission.

What if this were ME on the way to the airport yesterday?

The worker in that case was hit by a train while heading back to work, after running a personal errand. Ohio's 2nd District Court of Appeal had found the accident to be compensable, relying on the dual-purpose doctrine in reaching that conclusion.

The Ohio Supreme Court reversed the 2nd DCA, saying there was no causal relationship between the worker's job and the accident.

Last year, the 5th District Court of Appeals ruled in Friebel v. Visiting Nurse Association of Mid Ohio that because the injured worker had "dual intent" when the accident occurred that it was covered by workers' compensation.

Tamara Friebel, a home health care nurse, regularly used her car to drive from her home to see patients. She was paid for her mileage and her time, including transportation time, when she handled calls on weekends.

On Saturday, Jan. 22, 2011, Friebel promised her kids she'd drop them off at the Richland Mall before going to see her first patient of the day. The mall was on the way to the patient's house anyway.

While Friebel's car was stopped at a traffic light before the mall's entrance, another vehicle struck it from behind.

Friebel filed a workers' compensation claim based on her injuries from this accident. Her employer, the Visiting Nurse Association of Mid-Ohio, disputed her claim on the basis that Friebel was outside the scope of her employment when the car accident occurred.

An administrator for the Ohio Bureau of Workers' Compensation allowed Friebel's claim for a neck sprain. VNA appealed, and a district hearing officer for the Industrial Commission vacated the administrator's decision on the basis that Friebel had not yet begun her employment duties at the patient's house when she was injured.

A staff hearing officer then vacated that ruling and allowed Friebel's claim since she was paid both mileage and for her travel time from her home to the first patient's home.

After the Industrial Commission declined VNA's request for further reconsideration, VNA sought judicial review in the Richland County Court of Common Pleas.

A trial judge granted summary judgment in favor of VNA.

The judge reasoned that since there was no dispute that Friebel was on a personal errand at the time she was injured that there was no industrial causation.

The judge also opined that it was "immaterial" that Friebel was paid for travel time and mileage on the weekends because at the time of the injury, Friebel was traveling to the mall and not to work.

A divided 5th DCA panel then reversed the judge, the majority finding that Friebel had "dual-intentions" when she left home on the day of her accident.

Since Friebel had not yet made the turn into the mall, which would have deviated from the route to her patient's home before her accident, it could not be said she was on a personal errand when the crash occurred.

VNA petitioned the Supreme Court for review last December, and yesterday the court ruled in favor of VNA.

Though a strong dissent argued that the 5th DCA made a very basic AOE/COE analysis, the majority was worried that the lower court's assertion of a "dual intent" was changing the law in Ohio.

Justices Judith Ann Lanzinger, Sharon L. Kennedy and Judith L. French said they thought the doctrine influenced the appellate court's analysis. Thus, they said it was appropriate for the court to provide guidance on "the correct standards for addressing similar claims."

The Supreme Court majority said it was an "impossibility" to have a "one-size-fits-all test" for when an injury is compensable, and so a test like the dual-intent or dual-purpose doctrine "does not have a place in analyzing workers' compensation claims in Ohio."

Even when work creates the necessity for travel and the travel includes a personal purpose, the majority explained, the fact remains that "workers' compensation benefits are available only for an injury that occurs in the course of and arising out of the employment."

Sigh - trim the fat off the bone: it's all about who pays...

I'm not in Ohio, and my employment contract is in California; still, I'm not worried about whether or not I would be covered by workers' compensation if I have an injury in Austin - I'm lucky to be able to have family, industry, colleagues and a job in both Texas and California even if I just happen to be living life...
.

Ebola and Work Comp

What if the ebola virus is industrially acquired? Working abroad, or health worker infected...

The general media yesterday ran headlines about an adult who recently traveled from West Africa to Texas and tested positive for Ebola, the first case to be diagnosed in the U.S.

According to the reports, the man developed symptoms of the viral disease about four days after landing in Texas and was admitted into isolation on Sunday at Texas Health Presbyterian Hospital in Dallas.

The Centers for Disease Control and Prevention in Atlanta confirmed that the patient had tested positive for Ebola and said "a handful" of people may have been exposed. They also reiterated that the disease could be contained with standard public health efforts and said the patient can be treated safely at the Dallas hospital.

Also in the Wall Street Journal yesterday was a story about the spreading of disease and germs in the work place.

Regardless of your sanitation habits at work, it's pretty hard to avoid the germs of your co-workers, even the ones you don't know personally.

Just one door contaminated with a virus spreads the germ to about half the surfaces and hands of about half the employees in the office within four hours, according to a study at the University of Arizona, in Tucson. 

Bowzer may be infectious...

The research was presented at the Interscience Conference on Antimicrobial Agents and Chemotherapy in Washington D.C. earlier this month.

According to the article, researchers calculated that employees had a 30% chance of infection just being in the work place.

Albeit most of the time an infectious disease in the work place doesn't have any real consequence - flu bug or common cold, these diseases don't arise to industrial significance at least for workers' compensation.

But what if that infectious disease is ebola? The report of the Texas man transporting the disease to the U.S. demonstrates the portability of disease, and the transmission of it can occur quite easily, as demonstrated by the Arizona researchers, in the work place without detection until it could be too late.

California Governor Jerry Brown yesterday vetoed a couple of presumption bills put on his desk, one of which would have granted a presumption to certain health care workers that contract methicillin-resistant Staphylococcus aureus infections.

The bill, AB 2616, was sponsored by Nancy Skinner, D-Berkeley, and is the third attempt to create the presumption, but the first time it got to the governor's desk. It also would have been the first time any industrial disease presumption would have extended into the private work place.

In general I'm opposed to presumptions. I think they do more harm than good, create more animosity between employee and business, generate more litigation and medical discovery than not, and in general are bad policy.

We have seen over time now public safety employee presumptions grow outside of intentions - on Monday I blogged on a Los Angeles Times report about first responders taking advantage of salary continuation benefits for reportedly minor issues - and presumptions follow the same discourse.

The argument for the presumptions is that proving industrial causation of disease is inordinately difficult for the employee, and I get that.

But the reason for the public safety presumptions was to encourage people to seek careers in that sector and not be afraid that some disease was going to ruin their lives serving the public.

There isn't any evidence that the possibility of contracting MSRP inhibits potential health worker employment opportunities.

There apparently is evidence of health workers being harassed and otherwise intimidated in their quest to get benefits to cover treatment and disability associated with MSRP, and Brown has directed officials to look into this - perhaps that is what is needed for the nurses to get their presumption.

Here's what it really all comes down to - workers' compensation, like pretty much everything in life, has limitations and borders. Some of those limits are easily defined, and clearly denoted. Some are fuzzy and create more controversy and discourse than others.

At some point lines are drawn; not necessarily to discriminate against any particular sector or occupation, but simply because a line has to be drawn so that people affected or functioning within a system know what to do.

With communicable disease, where infection can as easily occur in the work place as not, there is nearly always going to be disagreement on causation and employer liability.

In the end the question is what does society want workers' compensation to be?

Does society want work comp to be more of a universal health and disability program that covers anyone for anything as long as they have a job? And society is willing to pay for it?

Or does society want a more circumspect system that covers only the obviously employment related injuries and illnesses, and put the burden of covering the fuzzy cases onto the general health system?

This is an age-old debate, one that will likely carry on for many, many years, particularly as the country wrestles with the ongoing implementation and coverage of the Affordable Care Act and its many permutations.