We have to give her an A for effort. This past week a 19-year-old waitress was working on the rooftop bar of a restaurant located on a Daytona Beach, FL pier when she saw a young boy struggling in the water far below. Her response was to do what any red-blooded American girl would do. Scratch that – today a red-blooded American girl would record the drowning on her phone in hopes of getting to post a video that goes viral. This girl did what any exceptional red-blooded American girl would do. She gave her apron and personal belongings to a patron (we assume that included her phone), and then jumped off the restaurant/pier into the depths below.
The child would be saved.
Well, not quite. While she gets an A for effort and spunk, the grade for planning and execution would definitely lower her average. She admits in a video interview that the moment she left the pier she knew she “should have gone further out.” Sadly, our would-be heroine landed in just a few feet of water and hit a sandbar, breaking bones in her feet and her back.
The child would be saved, but not by her. As it turns out, rescuers got a “twofer,” as she also had to be salvaged from the water. She is recovering after surgery in a local hospital.
Now, we do not know if this injury will be filed as a workers' compensation claim, and many would scoff at any suggestion of compensability. However, can we be sure?
Restaurant workers deal extensively with the public. As a result, they are often trained in life saving techniques such as CPR and the Heimlich maneuver. If a restaurant server sprains a wrist or wrenches their back while saving a customer's life performing one of those procedures, it would almost certainly qualify under the auspices of workers' compensation. Is a 30-foot drop for the same purpose just a leap too far?
Remember, in many jurisdictions, if she were a first responder, off duty or not, she would get an automatic presumption of compensability. Should a job title be the defining factor?
The argument for or against a potential claim is not being made here. The effort is to simply highlight and discuss the increasing complexities of the system we work in. After all, we recently discussed a firefighter who qualified for comp after having his genitals burned during a practical joke. The courts reasoning? Practical jokes were common and therefore it was simply an expected part of his job.
It is expected that an employee would help a customer in distress. Would that apply if they saw someone collapse outside the front door? If so, what about 30 feet below? If the only difference is the method of transport to the location of the victim, there is one thing we should remember; stupidity is not normally a criterion for determining workers' comp compensability.
Stupidity affects workers' compensation tremendously; it just doesn't get to weigh into the determinations most of the time.
It could be suggested that the act of leaving the pier was tantamount to leaving the workplace, therefore the injury was outside the course and scope of her employment. I suspect this one would be a real struggle to rubber mallet into the “Going and Coming” rule. Had she stumbled down a flight of stairs, would the story be different?
A number of years ago a harbor worker on the west coast was injured on the job. He admitted to having consumed a massive amount of alcohol while working, and the injury occurred while he was attempting to relieve himself over a railing. He stumbled and fell over the railing, landing on concrete eight feet below. He based his workers' compensation case on the claim that it was not the drunken fall that injured him, rather it was the employer owned concrete he landed on that was the cause of his injuries. Fortunately for the employer, and to a greater sense the sanity of the world in which we live, that worker lost his case.
There is a parallel in these cases that relates to a fall outside the scope of employment, however, our harbor worker lost because being drunk and urinating in public was outside the arena of any “benefit for the employer.” Our intrepid Wonder Woman was neither drunk nor urinating.
Although I probably would have wet my pants on the way down when I realized the mistake I had made.
I am not a lawyer, nor am I a judge. I am simply an observer of the workers' compensation complex and condition. My wife, who has dual master's degrees in both humanities and philosophy, tells me that in philosophy, there are no answers, only questions. This makes it almost impossible to win an argument with the woman, but that is really an irrelevant point in this story. What is relevant is that there are also areas within our industry that have no simple, clear and definable answer.
On the other hand, we never have a shortage of questions.
I encourage lawyers, judges and others with any interest to engage this topic in the comments below. I am curious about both the opinions and specific legal parameters that might affect our (likely hypothetical) claim. You may remain anonymous, and it might prove to be an interesting conversation.
There is some risk in encouraging public comments. History has taught us that, while the news and blog area of this site is very well read, comments are very few and far between. When it comes to public posting, even anonymously, the workers' compensation industry is collectively as quiet as a church mouse. This post might very well remain sans comments, which will give the distinct appearance that I am merely talking to myself. The other risk of course, is that commenters will make such convincing counter arguments as to expose me as a blithering idiot.
That second risk is really a minor concern. As noted earlier, my wife has dual master's degrees in both humanities and philosophy. I'm quite accustomed to the feeling.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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Bob is an accomplished speaker for the workers' compensation industry. He is available for conferences, corporate events, children's birthday parties and Bar Mitzvahs. You may access his Speakers Brief here.