Consult The Checklist

We were short and final for runway 22 at Catalina Island's Airport in the Sky yesterday when I decided to go around because we were too fast.

Just as I input full throttle a voice came over the radio, "check landing gear."

THAT's why we were so fast! I had failed to lower the landing gear.

How did this happen? I have 1500 hours of flight time, and over 800 of that is in Forty One Mike, and have never failed to check for landing gear deployment.

I thought about how that could have happened while relaxing with a cold one that evening in my lounge chair.

It was a WorkCompCentral director's meeting - we decided a day away from the office after all of the hustle and bustle of Comp Laude the weekend before so we could have some quiet time.

The conditions were perfect for a trip to Catalina and a Buffalo Burger - calm, clear air and modest temperatures. Wednesdays aren't too busy in the Los Angeles Class Bravo airspace and I figured Catalina wouldn't be too busy either.

The flight itself to the island was non-eventful for me, the pilot, and the passengers were thrilled with the view and stability of the flight.

Forty One Mike circled KAVX into pattern altitude for a right traffic entry to runway 22. On the downwind I sighted the touchdown zone and kept an eye on it as we turned right.

I felt for the landing gear knob and activated it, focused on the runway because Catalina is an "aircraft-style" landing - the runway sits atop a mesa with sheer cliffs on both sides, and it is steeply angled with a hump in the middle that causes a distortion from the normal cockpit view.

Forty One Mike was also heavy, with close to 800 pounds of humans aboard and only about 10 gallons of fuel burned off, so its handling was a little slow and ponderous.

And the passengers were gawking with delight.

In other words I was distracted.

As Forty One Mike was turned into final I reached to lower the last step of flaps, but it was already there - weird I thought.

I didn't think enough.

Nor did I check, as my habit and per check list, for "three green" - the three landing gear indicator lights illuminate green when the gear is fully deployed down and locked.

Normal approach speed in Forty One Mike is 80 knots with 15 inches of manifold pressure - but she wouldn't slow to less than 100 even at idle, so with about 100 feet of altitude to go to touchdown throttle went in to full power and I initiated the go-around.

All the clues were there, and yet, I almost got caught in a gear up landing.

This is a lesson we learn all the time in workers' compensation.

If things aren't the way you're expecting them to be, then they probably aren't...

In Ohio the mayor of Toledo died after an auto accident from a heart attack while in route following a snow storm press conference. The Bureau denied the claim, presumably based on the going and coming rule, but that was reversed by the Industrial Commission because substantial evidence reflected that D. Michael Collins often traveled the route home to check on road conditions. The Bureau is now seeking appellate review.

In Nevada some tweaks to the medical fee schedule for hospitals and ambulatory surgical centers should not cause more than a point four percent increase in medical costs in the state, but a study released last month by the Workers' Compensation Research Institute largely confirmed that you can't predict future behavior on past performance; reimbursement rates have a disproportionate affect on what procedures are deployed.

And in Pennsylvania a 48 year old field maintenance worker, with a long history of heavy smoking, hyperlipidemia, and family history of coronary artery disease died after working a 14 hour day in cold weather performing hard physical labor under stress. The substantial evidence standard supported the claimant widow's appeal for death benefits over the defense opinion that a heart attack was inevitable, and it just so happened to occur at work.

There are, every day, clues that should cause us to consult the check list. Things aren't what they seem. Sometimes the courts have to remind us. Sometimes history is not a good indicator of future performance.

As we were climbing out for the go-around another voice came over the radio.

"You owe that guy a beer."

"Yep" is all I could say.

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.

A Side Note

Going or coming?

One rule of statutory construction is that the courts make assumptions based on prior law - that is if a legislature does, or doesn't in some cases, specifically deal with or mention a particular concept of law, such as the "going and coming rule" in workers' compensation, then the courts will assume that the law makers didn't want to mess with the "old" law.

This is particularly true when the legislature does deal with other details.

The Oklahoma Court of Civil Appeals reminded the state's work comp participants of this propensity in a recent case, Robinson Medical Group/Castlepoint Insurance vs. True (113,528 - 10/07/2015).

Tommy True worked as a registered nurse for the Robison Medical Resource Group. His job required that he work at various hospitals throughout northeast Oklahoma – mostly in Claremore, Pryor and Mayes County and occasionally other locations.

True was supposed to go to Claremore to work on March 8, 2014, but Robison asked him to go out to Grove since a sleet storm had left the hospital there short of staff.

True testified that he negotiated a higher payment at a rate of $40 per hour representing his hourly rate of $37.50 and an extra $2.50 per hour for his mileage. Castlepoint did not offer any rebuttal testimony on payment arrangement.

On his way home from work, True's car hydroplaned when he swerved to avoid a deer. He crashed into a tree, sustaining severe injuries that almost cost him his leg.

The Administrative Law Judge found True's accident to be compensable last June, and Castlepoint appealed.

The Commission upheld the ALJ.

The Court of Civil Appeals found there was substantial competent evidence to support the ALJ's finding that Robison had compensated True for his mileage in driving to and from the Grove hospital because although Castlepoint offered evidence that the payment arrangement was not standard, there was no evidence to rebut True's testimony as to the specifics of pay.

The question then became whether Robison's payment of compensation for True's travel time kept him within the course and scope of his employment, even though he had already left work and was heading home on a public roadway, the court said.

Section 2(13)(a) of the AWCA defines the "course and scope of employment" as excluding a worker's travel to and from work, the court noted. "(T)his language is substantially similar to what, under the Workers' Compensation Act, was the general rule," often referred to as the "going and coming rule," the court said. Thus, the court reasoned Section 2(13)(a) represented "an express attempt by the Legislature to adopt that general rule."

The court observed that the AWCA expressly adopted, abrogated and modified many of the formerly recognized exceptions to the going and coming rule.

Under the Workers' Compensation Act, the going and coming rule did not apply when a worker was hurt while traveling to or from his workplace to perform a special task outside of his regular work hours, at the request of his employer, for the employer's benefit, the court said.

So, since there were expressed limitations and exceptions, etc. in the Act, the legislature's failure to eliminate the special task exception meant that it still applied.

As "Legislative silence on a well-established point of law is not indicative of the abrogation of the prior law," the court said it had to find the paid-travel exception "survives intact under the AWCA and it applies to this case."

Now, a side note.

You may have noticed that I inserted the insurance company's identity in place of the employer's identity relative to the procedural decisions in this case.

I will do this in the future when possible - the reason: employer's don't make litigation decisions (unless they are self insured/administered) in the vast majority of cases (and if an employer does direct the litigation, then YOU let me know!).

Overwhelmingly, the decision to deny, defend, litigate, etc. is delegated by the employer to the insurance company via the insuring contract.

Robison's, in this instance, would not have wanted this case to fall outside the exclusive remedy of workers' compensation because of the exposure to civil liability - which, by the way, would have been denied by the general liability carrier as a work comp claim: the proverbial Catch-22.

The courts are largely responsible for confusing the responsibilities of the employer and carrier because the courts have made it a habit, either through procedural rules or just customary practice, to lump the two together.

But an employer has distinctly different interests than the carrier does. That's the nature of the insurance relationship.

So, unless an employer actually does control litigation decisions and that point is distinctly available from the record, I'm going to assume that it's the insurance company that makes those decisions - and will criticize (or praise) accordingly.

In this Robison case, it is quite obvious to me that the decisions were those of the carrier. And, by the way, the management of evidence, particularly witness rebuttal to True's pay testimony, is telling - there was no evidence to rebut True, and that should have driven Castlepoint's decision to drop the litigation and pay the claim.

But other interests got in the way - and that's a rant for another day.

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.

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.

Bullshit.

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.

Mississippi Going & Coming

I don't know if Linde Gas in Mississippi is self-insured, or if it has any leverage over the decision making process of claims management, but to me a recent case out of the state Court of Appeals seems to indicate that there was some wrongfully placed emotion dictating the management of a work comp claim.

Larry Edmonds worked for Linde Gas as an instrumentation technician, responsible for maintaining the instruments at the Linde Gas plant that supplied oxygen, nitrogen and argon, through a pipeline to the steel plants in Columbus, Brandon, Vicksburg and north Mississippi.

Edmonds normally would travel to the Columbus plant every other week and work Mondays through Fridays, from 7:00 a.m. until 3:00 or 3:30 p.m. He would report and travel to the plant locations in Brandon, Vicksburg and north Mississippi during the alternating weeks.

Sometime he would also be called back to a plant to make repairs after his normal work day had concluded.

Linde gave Edmonds a Ford F-150 pickup truck and paid for its maintenance, insurance and fuel, to use to travel to and from work and to the other plants. Edmonds was paid for his travel time when he responded to calls outside of his normal work hours.

While on his way to report to work at the Columbus plant on Oct. 21, 2010, Edmonds suffered injuries in a car crash that he doesn't remember much about, though he testified that he didn't get sufficient sleep, and had taken pain medication before heading out at 5:45 a.m.

Edmonds claimed that he was driving the speed limit, and it was still dark outside when the accident happened. He recalled seeing the taillights of a gravel truck moments before his crash, but little else.

Linde's investigation determined that Edmonds' headlights were not on, that Edmonds was not wearing a seatbelt and that he was speeding.

Based on the investigator's report and because Edmonds had two prior car accidents while driving a company vehicle, Linde terminated his employment.

Edmonds filed a workers' compensation claim, but Linde denied it based on the "going and coming rule."

Editorial pause: to the disinterested observer, assertion of this defense on these facts was facetious: company vehicle, demanding travel schedule, payment of expenses, on-call status all conspire against this argument. Nice try though...

Linde also asserted that the accident resulted from Edmonds' willful intent to injure himself because of his medication, failure to sleep, speeding and lack of seat belt, which would bar compensation pursuant to Mississippi Code Annotated Section 71-3-7(4).

A workers' compensation judge rejected Linde's defenses and granted compensation to Edmonds.

On appeal, the Court of Appeals upheld the WCJ's ruling.

On the going and coming, the court excoriated the employer: "The law is clear that the employer-provided-transportation exception to the 'going and coming' rule allows an employer to assume responsibility for the employee's travel either by paying the transportation costs or by providing a 'company vehicle,'" the court said.

The court also said the evidence of Edmonds' lack of sleep and consumption of pain medication did not demonstrate a willful intent to cause injury to himself.

Curiously, Judge Virginia Carlton dissented on the willful intent finding, arguing that Edmonds "imparted risks into his travel" by driving without turning his headlights on, while not wearing a seatbelt, while speeding, driving while not feeling well and while under the influence of pain medication.

"Driving under such conditions reflects a voluntary act by Edmonds and a willingness to incur risk outside the scope of his employment," Carlton opined.

Judge Carlton apparently dismisses any idea that Edmonds might just be stupid, which is not grounds for denying workers' compensation compensability.

Linde Gas v. Edmonds, No. 2013-WC-01942-COA, 09/30/2014, can be read here.

AOE/COE Again

The tough thing about The Law is that sometimes we don't like it's application to us.

Yesterday I whined about New York and what I perceived as opportunistic bureaucratic business wrangling for the sake of governmental revenue enhancement at the expense of small business.

Indeed, the piece received a lot of attention in the LinkedIn world where brokers and risk managers basically confirmed that if you're a small business in New York, or doing business in the state, you don't have much of a chance agains the machine.

But sometimes The Law just isn't well understood because, particularly in a system such as workers' compensation, there is no correlation to logic. Nothing in real life actually prepares normal people for the implausibility of comp.

A dentist in Nebraska and her insurance carrier found that out.

Barbara Potter began her work as a dental hygienist for Patrick McCulla, DDS, around 1981. In late 2007 or early 2008, after more than 25 years on the job, Potter said she began having problems with pain in her neck.

She asserted that the pain was more intense toward the end of her workday on the days she worked, so she suspected it had something to do with the way she was positioning herself over her patients while she worked.

Bowzer's pain has occupational ties.

Potter sought medical treatment for her neck pain from Dr. Donald Walla in October 2008. Walla prescribed oral steroids and physical therapy but did not assign any work restrictions.

After this visit Potter told her employer, Dr. McCulla, about her symptoms and that she thought her neck problems were related to her work.

McCulla then submitted a report of injury to the Workers' Compensation Court and his insurance carrier, Hartford Underwriters, accepted Potter's condition as compensable.

Potter continued to see Dr. Walla through January 2009, but she was able to schedule all of her visits around her work schedule, so she didn't miss any work.

Meanwhile, McCulla sold his dental practice to Dr. Tracy Garcia.

Garcia's insurance carrier, the FirstComp Insurance Co., asked Potter to go see Dr. D. M. Gammel in September 2010.

Gammel opined that the cause of Potter's neck pain was a pre-existing and progressive degenerative cervical disc condition that was completely unrelated to her work. After receiving this report, FirstComp refused to pay for any additional medical care for Potter.

Potter left her job at Garcia's clinic in June 2011 and began working at another dental clinic.

After a year at her new job, Potter sought treatment with Dr. Phillip Essay for her neck. Essay reported that Potter had degenerative spondylosis in her cervical spine that was being aggravated by her work as a dental hygienist, but he said it was "impossible" for him to be able to say how much of the aggravation was caused by her work with any of her prior employers.

Based on Essay's report, Potter filed a petition in the Nebraska Workers' Compensation Court seeking benefits for her neck injury.

The Workers' Compensation Court Judge found Potter had pre-existing conditions in her neck which were aggravated by her duties as a dental hygienist and awarded benefits based on a 40% loss-of-earning capacity.

Fitzgerald post-dated the award to February 2009, when Potter first began to miss work for her injury.

Because Garcia was Potter's employer at that time, the judge held Garcia and FirstComp liable for all of Potter’s medical expenses and compensation benefits.

Garcia and FirstComp appealed, and the Supreme Court elected to have the matter bypass the Court of Appeals and come directly to its docket.

The Supreme Court said that Potter did not have to prove that her injury arose out of her employment with Garcia in order to get an award of benefits. To get benefits, the court said, all Potter had to do was prove that she suffered an injury from an accident "arising out of and in the course of" her employment.

The phrase "arising out of" describes the accident and its origin, cause and character, the court explained, and the court reasoned that Dr. Essay's opinion constituted competent evidence that Potter's injury arose from her employment.

Since Potter's injury was caused by repetitive trauma, the court noted, Dr. Essay said he could not pinpoint the exact date of injury to a reasonable degree of medical certainty, but Nebraska's courts – since 1999 – have been using the date that a worker has both received medical treatment and missed work due to the injury as the date of injury.

The defendants tried to argue that Nebraska should recognize how other states look at such cases - that a repetitive trauma injury manifests when both the fact of the injury and the causal relationship of the injury to the claimant’s employment are plainly apparent to a reasonable person.

The Supreme Court of Nebraska said it's not Iowa, nor Oklahoma, nor Kentucky.

Because that's The Law in Nebraska...

The case is Potter v. McCulla, No. S-13-944.

NC Shooting Case: An Employer That Doesn't Care

A school principal was driving to the office, talking to his administrative intern and curriculum coach on a cell phone that was provided by his employer. They were discussing the baby chickens that had hatched at the school and what had to be done with them as the school was letting out for Easter break, the new technology for the school, and the positioning of school staff when the students would be let out, when an unknown assailant in a pickup truck pulled alongside at an intersection and shot the principal in the face.

The school district denied workers' compensation benefits claiming his injury "was not a result of an accident" and "did not arise out of and in the course and scope of…employment."

I was outraged when I first learned of this case, and I'm still outraged at the behavior of the school district that contested this case.

The case is Hunt v. North Carolina Industrial Commission et al., No. W18411, and the North Carolina appellate court correctly found in favor of the school principal, James Hunt, on Tuesday.

Since the shooting, Hunt has undergone more than a dozen surgical procedures to repair the damage to his face, mouth, teeth, and right hand. His life is irreparably altered. The pain of his ordeal indelibly inscribed in his memory, the lack of empathy of his employer clearly communicated: "we don't care."

At the original hearing Hunt testified that he believed he was attacked in retaliation for his efforts to reduce gang activity in and around the school.
"Somebody did this to me…because of my role as a school administrator," he said. "Some decision I made or some student that I suspended or some gang member that I took some territory from didn't like it."

He also said he had received threats from some of the parents of his students and was suspicious of staff members whom he had to discipline.

Despite the fact that the original hearing officer granted benefits, which the Industrial Commission affirmed, the school district persisted, ensuring that Hunt lived with this day of near-death for THREE YEARS.

The appellate court noted that the district did not challenge key evidentiary findings by the commission: that Hunt had problems with gangs at Fairgrove Middle School, that he had suspended one gang leader from the school, and that he had a confrontation with another not long before the shooting; that “principals in Robeson County are on call 24 hours a day, seven days a week," and that the conversation Hunt had with Brown was an allowable use of the cell phone which the school district paid for and provided.

In addition, Hunt undisputedly received a travel allowance of $594.08 twice a year, and the district did not challenge the commission's determination that he used this money to cover the cost of commuting to and from the school.

Nope - the district argued the going and coming rule.

I don't know who was counseling the district on this case, but clearly that counsel was erroneous when gauged by anyone with workers' compensation experience.

Hunt, now 39, told WRAL News in North Carolina that he and his family struggled financially without the compensation payments, and was grateful for the assistance provided by his community.

He said he did not feel ready emotionally to return to work, but he is determined to do all he can to find his assailant.

"My case is going to be solved," he said. "I will not rest until I have closure (and) whoever did this – one or two – is brought to justice."

The district in the meantime is reportedly still reviewing the case to determine it's next course of action.

Seems to me the district's next course of action is to pay Hunt his past due disability benefits, pay his medical bills, and focus their investigative and legal resources on finding the perpetrator of the crime, bring him to justice and bring this case to a closure.

In the meantime I simply do not see how Hunt can return to work for this employer. They have clearly communicated how they treat their employees. My guess is that this is also a reflection of the quality of education in this district as well.