Rulings focus on compensability boundaries

Moving into 2022, courts continue to explore the boundaries of compensability for injuries. From sinkholes and COVID-19 to car accidents and influenza, courts have started off the new year addressing a variety of scenarios, with diverse outcomes.

California

Just before Christmas, California’s 2nd District Court of Appeal in Los Angeles issued See’s Candies Inc. v. Superior Court (Ek), allowing a widow to pursue a claim against her employer because her allegedly unsafe workplace led to her infecting her husband with COVID-19.

Matilde Ek had worked for See’s Candies, and she contracted COVID-19 in March 2020. Her husband, Arturo Ek, provided care for her while she was ill and subsequently became sick himself. He died in April 2020.

Ms. Ek sued her employer, asserting See’s failed to implement appropriate safety measures to mitigate its employees’ exposure to the novel coronavirus, even though it knew or should have known its acts would increase the risk that workers would be infected and carry the virus home, where they could infect their families. 

See’s filed a demurrer arguing that the lawsuit was precluded by the derivative injury rule, a theory that the exclusive remedy of a workers compensation recovery applies to all claims that are collateral to or derivative of a compensable injury.

The trial court overruled the demurrer, and the Court of Appeal affirmed, ruling that even if Ms. Ek’s contraction of a virus was a cognizable injury subject to coverage under the workers comp system, viral transmission does not depend upon any injury to the transmitting party. In such a situation, the court said, the employee “is merely the conduit of a toxin or pathogen,” and so Mr. Ek’s injuries were not collateral to, nor derivative of, Ms. Ek’s COVID-19 infection.

Oregon

In February, the Oregon Court of Appeals in Salem addressed another case involving a different infectious virus. In In the Matter of Rogers, the court revived a bus driver’s claim for benefits based on her contraction of the flu.

Tri-County Metropolitan Transportation employee Diane Rogers fell ill in February 2019 and was hospitalized for 10 days with an influenza-A infection.

An administrative law judge denied Ms. Rogers’ claim, and the Workers’ Compensation Board affirmed. But the Court of Appeals reversed, finding that Ms. Rogers met her burden to establish medical causation by a preponderance of the evidence through expert medical testimony, as it was evident her expert regarded her work environment as a greater risk of exposure to flu than her brief potential exposures in her off-work environment.

On the flip side, the same Court of Appeals denied a claim for benefits filed by a worker who was injured while taking a walk as part of her participation in her employer’s wellness program. 

In the Matter of the Compensation of Watt, filed in January, held that the worker’s risk of being injured by a fall during an off-premises walk was a “neutral risk” – one that was not employment-related or personal to Lori Watt.

An injury resulting from a neutral risk is compensable when the conditions of employment put a claimant in a position to be injured, but since it was Ms. Watt’s personal choice to take the walk, which itself was not an employment duty or incidental to the job, the court said her accident had no connection to her employment.

Delaware

Walking off the employment premises also was not compensable for a judicial assistant in Delaware in Browning v. State. 

In January, the Delaware Supreme Court in Wilmington upheld a denial of benefits to Kim Browning for her injuries from falling into a sinkhole while walking from a parking spot on a public street toward the state courthouse where she worked. 

The court found that Ms. Browning was outside the course of her employment when she fell, as it was beyond the courthouse property line and she had not been instructed to park in any particular place to access her workplace.

Pennsylvania

Being off the employer’s property was not a bar to a recovery for a worker in Pennsylvania. In a January decision in Henderson v. WP Ventures (WCAB), the Commonwealth Court of Pennsylvania in Harrisburg ruled that Stanley Henderson was entitled to benefits for his injuries from a fall he suffered while he was heading out to have a cigarette and get food.

The court found that Mr. Henderson’s actions fell within the parameters of the personal comfort doctrine, which “embraces intervals of leisure within regular hours of the working day” and recognizes that “momentary departures from the work routine do not remove an employee from the course of his employment.” 

Since allowing an employee “to administer to his personal comfort better enables him to perform his job,” the court said breaks to attend to personal comforts are considered to be in furtherance of the employer’s business. The court therefore concluded that Mr. Henderson remained within the course of his employment when he was injured.

New Jersey

In January, the Supreme Court of New Jersey in Trenton ruled that a librarian was entitled to benefits for her injuries from an accident after she had left the building where she worked.

Diane Lapsley worked for the Township of Sparta at a public library. She had been heading to her car when she was struck by a snowplow being operated by another township employee.

In Lapsley v. Township of Sparta, the court said that an accident that happens while a worker is going to or coming from work arises out of and in the course of employment if the injury takes place on the employer’s premises. The court said that Mrs. Lapsley was entitled to benefits because the accident happened in a parking lot controlled by the township. 

While it was undisputed that the township did not own the lot, the court said the township’s act of plowing the lot “visibly demonstrated” its control over it, and the township had to have been aware that a library employee would use the lot directly abutting the library. 

Texas

A Texas court ruled similarly when it said an employer faces potential liability for a nurse’s death after she was struck by a car. In January, the Court of Appeals for the 14th District of Texas in Houston granted en banc reconsideration of HNMC Inc. v. Chan.

Leny Rey Chan was working for the Houston Northwest Medical Center when she was hit by a motorist as she crossed a public roadway between the hospital building and the hospital’s fenced parking lot.

The Court of Appeals explained that, generally, a property owner has no duty to ensure the safety of a person who leaves the property and suffers injury on an adjacent public roadway. However, a premises owner assumes a duty of care if it creates the dangerous condition; agrees or contracts to make safe a known, dangerous condition of real property; assumes actual control over the adjacent property; or knows about but fails to warn of an obscured danger on land directly appurtenant to the premises owner’s land. 

A majority found the hospital had a duty to use reasonable care and avoid foreseeable injuries to others by instructing pedestrians, such as Mrs. Chan, not to cross the street at a mid-block location outside the hospital exit, where the vehicle entrance/exit to the fenced parking lot was located. 

Colorado 

In a contrasting ruling, the Colorado Court of Appeals in Denver in January ruled that an employer did not have potential liability for a tree trimmer’s injuries from a car accident while traveling to a doctor’s appointment for an alleged work-related injury.

After James Salazar told his employer that he had hurt his back, his employer gave him a list of doctors from whom he could seek treatment. Mr. Salazar made his selection, and was hurt in a car accident while traveling to his initial appointment.

In its decision for Salazar v. ICAO, the Court of Appeals said an employer is responsible for the direct and natural consequences that flow from a compensable injury, but proof of causation is a threshold requirement that an injured employee must establish by a preponderance of the evidence before any compensation is awarded.

Thus, the court said, injuries sustained while traveling to or from covered medical care for a compensable injury may be compensable, but the initial injury must be compensable before a claimant can recover benefits for the travel-related injuries.

Sean Goodbody of Withers, Seidman, Rice, Mueller, Goodbody, who represented Mr. Salazar, said an appeal is pending. He will argue that Mr. Salazar’s injuries from the accident should be compensable because he would not have been traveling if not for the employer’s control over his medical treatment for the reported work injury. 

Sherri Okamoto is a legal reporter at WorkCompCentral, a sister publication of Business Insurance.