This Story Shows Why Employers are Frustrated with Workers Comp Judges

We all have our war stories about questionable claims that Judges nevertheless find compensable. This is one of those stories.

Carla Burdette was a casino employee in Atlantic City.  After work one evening she was driving her car off of her employer's property and turned onto a busy street.  Unfortunately she pulled out directly in front of oncoming traffic, and the laws of physics being what they are, there was a collision and the claimant was injured.

I know what you are thinking...."the "Going To Coming From" rule means that this injury is not compensable". As Maxwell Smart used to say: "Missed it by that much!"

It seems as if, at the time of the collision, 12 inches of the claimant's car (the rear bumper, actually) was still on the employers property - - 1 FOOT. As such, the appellate court in New Jersey determined that the claimant was entitled to workers comp benefits for her injuries because the back of the car was still on company property at the time of the accident.

A security camera showed that the claimant was NOT on company property at the time of her accident, but that 1 foot of the rear bumper WAS on the employer's property. If the Warren Commission could have looked into this claim they would have undoubtedly labeled that part of the car as the "Magic Bumper"

It may not be a Magic Bumper, but it is certainly a golden bumper for the claimant. This demonstrates why Employers become so frustrated by the entire workers compensation process which often times is more interested in giving away someone else's money rather than caring for employees who are truly injured in the scope and course of their employment.

This claimant was not injured in the scope and course of her employment, nor was she injured in any way that could have been prevented by the employer. She had clocked out of work and was performing no useful service to her employer. She was on her way home and she now gets buckets full of money for an injury that had nothing whatsoever to do with her employment.

The question here is this: why?

Workers Compensation law is often mired in arcane doctrines and theories and this case is no exception.  Here, the crux of the case centered on what is called the  "Positional Risk Doctrine".  Under this doctrine, there is a "but for" test applied to determine compensability - - "but for" the employment would the injury have occurred? If the answer "no", then the claim is compensable.

Applying this reasoning to the claimant's car accident, would this accident have happened but for her departure from work? Clearly not, admittedly, and from this idea springs a finding of compensability.

Most conservative jurisdictions long ago abandoned the positional risk doctrine because it often leads to, like here, an absurd result.  For those jurisdictions that have abandoned the positional risk doctrine, it was replaced by a requirement that the injury must have a rational relationship to the work performed by the injured worker in order to obtain workers comp benefits.  Isn't this the reason why workers compensation benefits were created in the first place?

Claimant-oriented jurisdictions still cling to the positional risk doctrine because of the idea that workers who are injured during the work day, regardless of how little the employment is related to the injury, deserve to be compensated.

In this case, pulling a car out into a lane of traffic has nothing whatsoever to do with the claimant's work duties as a casino dealer. However, since the accident would not have happened "but for the fact that the conditions or obligations of the employment put claimant in the position where she was injured" (the exact definition of position risk theory), the claim magically becomes compensable.

It's no secret that quality jobs are becoming more and more scarce, and as this trend continues the competition among states to keep high-paying jobs within a state's border will become hotter than ever.  It would seem that during this time of inter-state economic competition, states would want to portray themselves as being friendly towards business interests as opposed to hostile.  Then again, if possession of common sense were a crime, there would be scant evidence upon which to convict most state governments.

About the Author

J. BRADLEY YOUNG is a partner with the St. Louis, Missouri law firm of Harris, Dowell, Fisher & Harris, where he is the manager of the Worker's Compensation Defense Group and represents self-insured companies and insurance carriers in the defense of workers' compensation claims in both Missouri and Illinois.  Brad is a frequent Conference Speaker and can be regularly heard on KMOX radio in St. Louis discussing a wide variety of legal topics.  You can email Brad at byoung@hdfh.com .

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