The June 2008 updates for Larson's Workers' Compensation Law were recently shipped to subscribers.
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Chapter Revisions
- Ch. 10, Range of Compensable Consequences
- Ch. 13, Going to and From Work
- Ch. 14, Journey Itself Part of Service
- Ch. 27, Acts Outside Regular Duties
- Ch. 28, Acts in Emergency
- Ch. 29, Conclusion: Work-Connection as Merger of "Arising" and "Course"
Range of Compensable Consequences. When the primary injury is shown to have arisen out of and in the course of the employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of some independent intervening cause. Chapter 10, which discusses this important core rule within workers' compensation law, has been revised and updated. Under this rule, not only are complications of the original injury covered, but also injuries brought about through treatment, even if occasioned by medical malpractice, can generally be found compensable, so long as there is some causal connection between the resulting injury and the original compensable one. This chapter also discusses those instances in which the alleged independent intervening cause is due to an injured worker's refusal of reasonable treatment.
Going to and From Work. Chapter 13, which discusses the widely utilized "going and coming rule," has been updated as well. Under this rule, as to employees having relatively fixed hours and place of work, injuries occurring on the premises while the employee travels to and from work or at lunchtime are generally compensable. If the injury occurs off the premises, claims are generally denied. The employer's premises are sometimes held to be broader than the specific metes and bounds description of the employer's facility. Most jurisdictions attempt to determine if the employee faced risks that were either under the control of the employer or sufficiently greater than those faced by the public at large. Thus, in one recent case, Fiero v. New York City Department of Housing Preservation and Development, 34 A.D.3d 911, 823 N.Y.S.2d 290 (App. Div. 2006) [see Ch. 13, § 13.02[2][e] n.20.1], where an employer arranged for the employee, who had a heart condition, to park in a parking lot directly across the street from his office so that he could avoid walking a long distance, and the employee was struck by a truck as he crossed the street, and later died from his injuries, the appeals court found that there was no evidence that a special hazard existed at the off-premises location where the decedent was struck. Instead, the court concluded that the risk of being struck by vehicular traffic in this location was shared by the public in general and, therefore, the death benefits claim was not compensable.
Journey Itself Part of Service. An important exception to the "going and coming rule" discussed above is that which is taken up in Chapter 14, which has been revised. Generally, the rule excluding off-premises injuries during the journey to and from work does not apply if the making of the journey, or the special degree of inconvenience or urgency under which it is made, is in itself a substantial part of the service for which the worker is employed. Thus, in Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448 (2005) [see Ch. 14, § 14.03 n.2.1], where the employer required that the employee report directly from her home to the patient's home each day rather than beginning her day at the employer's fixed place of business, and where the employee cared but for one patient per day, the employee's injuries sustained in an auto accident as she drove to the employer's office at the end of a day were found to be compensable. Here, it should be noted that the court awarded benefits at least partly because the employee was paid a mileage allowance for the travel.
Acts Outside Regular Duties. Chapter 27 has also been revised, bringing up to date the discussion of the important point of law, that an act outside of an employee's regular duties which is undertaken in good faith to advance the employer's interests, is generally within the course of the employment. For example, self-education is generally deemed to be in the employer's interests; injuries sustained while pursuing such personal development are generally compensable. In one recent case from New York, Murphy v. Mt. Sinai Hospital, 37 A.D.3d 919, 829 N.Y.S.2d 728, 2007 N.Y. App. Div. LEXIS 1432 (App. Div. 2007), a nurse practitioner sustained multiple injuries in a traffic accident while attending a continuing education conference. He contended his attendance at such conferences was a mandatory requirement of his position, that he had been encouraged by a supervisor and mentor to attend the specific conference at which he was injured, and that the supervisor had even supplied the claimant with a brochure advertising that conference and had strongly encouraged him to take advantage of the employer's policy advocating employee participation in such courses. Those factors, coupled with the fact that the employer's payment records indicated the claimant had received remuneration for two "conference days," was sufficient to support the Board's decision.
Acts in Emergency. The course of employment can also be expanded by emergency. Chapter 28, which contains the discussion of those emergency situations in which the normal rules are broadened, has been updated as well. The injured employee is in a strong position when his or her emergency activity is within the interests of the employer. Nevertheless, bizarre fact patterns are relatively common here. For example, in one 2006 case from Florida [Deutsch v. Heritage Automotive Enters., 939 So.2d 259 (Fla. Dist. Ct. App. 2006), a car salesperson, who sustained injury when he chased down and was run over by a woman who took a $15 "bubble machine" that had been purchased to attract customers, was awarded benefits [see Ch. 28, § 28.01[1] n.11.2]. Likewise, in a New Mexico case, Grimes v. Wal-Mart Stores, Inc., 2007 NMCA 28, 154 P.3d 64 (Ct. App. 2007), cert. denied, 156 P.3d 39 (N.M. 2007), a Wall-Mart "greeter" received an award of workers' compensation benefits after he sustained injuries "taking-down" and handcuffing a suspected shoplifter. That the employer contended the worker was injured during a prohibited activity, that nothing in his job description as a greeter could be construed so as to allow the worker, on his own, to attempt to apprehend the alleged shoplifter, was not convincing to the court. Noting that the greeter's job description required that the worker monitor the doorway and ask for and examine cash register receipts if an alarm sounded as any customer left the store, the court ruled that there was no sufficient evidentiary support for a finding or conclusion that the worker disobeyed or violated any clear and specific employer policy or instruction given to the worker [see Ch. 28, § 28.01[3] n.24].
Work-Connection as Merger of "Arising" and "Course." Courts occasionally treat the "course of employment" and "arising out of employment" tests as if they are severable, when in reality they are not. The better view is that the two are parts of a single test of work-connection. Chapter 29, which makes this important point, has also been revised and updated. The importance of joining the "course of" and the "arising out of" into one single test is illustrated by a recent South Carolina case, McGriff v. Worsley Cos., 2007 S.C. App. LEXIS 221 (Nov. 27, 2007). An employee was in the parking lot of the store where he worked, cleaning the outside premises of the store, when he saw an acquaintance stop a truck at a nearby intersection. The employee crossed the parking lot and entered the intersection to speak with his acquaintance. The two men discussed the application for employment that the acquaintance had filed with the store (as part of his employment duties, the employee was expected to help the employer hire good workers). The employee indicated that he would speak with the store manager on the acquaintance's behalf. As he turned to go back toward the store, a car struck the employee. The employer contended that the employee's act of ceasing the cleaning activity and walking into the intersection to talk to his friend removed the employee from the course of his employment. The appellate court disagreed. Looking at the evidence, it could not be said that the employee's actions constituted a substantial deviation from the employment. See Ch. 29, § 29.01[1] n.3.