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Posted in Uncategorized on March 13, 2016   |  by Gary Burger

New Workers' Compensation Case about Employee Determination

This case (Jensen-Price v Encompass Medical Group, 2016 MO WCLR Lexis 17 (Feb. 24, 2016)) deals with the determination that a particular employee was injured on the job. As mentioned multiple times in this volume, this seemingly straightforward determination is actually quite complex. Moreover, it determines whether you are going to be in the workers’ compensation system, the civil system, or both, and therefore has a big impact on your ultimate recovery.
In this case, Claimant was struck by a cleaning cart in a common hallway on her way home. She sought out workers’ compensation benefits to her low back, head and body as a whole. The commission here affirmed a denial of benefits.
Here, the Commission affirmed in dicta that an accident arises in the course of the employment even after claimant leaves the employer’s property because going home with an intent to work is a travel between job sites that keeps the accident a compensable workers’ compensation injury.
In this case Claimant testified that she worked as a nurse and was leaving work in August of 2010. The claimant said she fell down when she was bumped by a cleaning cart and trying to get into the elevator. She was carrying her work laptop at the time.
As a workers’ compensation attorney, I can see all too well how this case would play out. When Claimant would try to get her case into civil court, and increase her recovery, Employer would defend by implying that she would only be carrying the laptop if she was going home to work. Despite the fact that there are literally dozens of other plausible explanations for why she was carrying the laptop, this explanation could easily win out and keep the case in comp.
In any case, Claimant sought to obtain benefits for a back surgery with a pre-existing condition. She had prior hip replacements and back pain prior to the accident. Her expert had concluded that her back pain meant that she was unemployable in the open labor market.
Here, the ALJ found that the case was not compensable as claimant was “going and coming” to work. The ALJ had used the lease for the hospital to determine that the employer had exerted no right of control over the area by the employer, and therefore that the employee was not in the workers’ compensation arena at that time. If the ALJ had prevailed here, the claimant could have filed a claim in tort.
However, the Commission had reversed the determination of the ALJ and found that that the case involved a dispute about whether about whether the injury arose out of and in the course of the employment, even though the parties had framed the issue as being under a theory of extended premises. The Commission found the reasoning of the ALJ to not be persuasive. The lease offered by Claimant was not relevant to any determination of employment.
In addition, the Commission found that because claimant was carrying a case with intent to perform further work in the scope of employment, it did not matter that she was not actually working at the time. The case would still be governed by the Workers’ Compensation statute. This means that the employee could not recover under a civil liability theory. The injury that occurred was a product of a risk attendant to employment, even if it did not happen while the employee was actually being paid.
Here, the commission disagreed with the ALJ’s analysis that claimant’s work ended when she left the suite and camp to a common area and concluded that because claimant was going home to work and going from one work location to another, she was still on the job.