Worker attacked by candy machine sues for comp
April 24, 2008 by Fred HosierPosted in: Dubious decisions, Here comes the judge, Special Report
Time to play the popular HR Blunders game, “Comp or No Comp.” Here are three recent court cases in which employees sought comp for unusual accidents. Did the workers get comp? Read each case, then check to see whether you guessed right at the end of this post.
1. Does the company pay workers’ comp if an employee, returning from an unpaid break, injures his foot while rocking a vending machine to shake loose a stuck candy bar?
Here’s what happened in this case from Oregon: Maintenance worker Kaleiokalani Barela injured his foot at work. While returning from an unpaid lunch break, he tried to help a co-worker dislodge a purchased candy bar from a vending machine in the company’s lunchroom.
Barela attempted to rock the machine when he heard a sound from below.
It wasn’t the sound of the candy bar dropping in the machine. It was Barela’s Achilles tendon rupturing.
Barela sought workers’ comp. His duties did not include maintaining the candy machine, which was done by an outside contractor. Did Barela’s employer have to pay?
2. In another case, a car salesman, Clifton Roberts, was bored one day so he decided to take a ride on a co-worker’s motorcycle in his employer’s lot.
The salesman didn’t have any current customers. He took the little spin on the motorcycle while waiting for the next customer to arrive. Other employees, including the car dealer’s general manager, took rides on the bike earlier in the day.
While the salesman was riding the cycle, another employee backed a company pickup truck into him, causing the salesman serious injuries. Comp or no comp?
3. In another case, one of Hr Blunders’ favorites in the world of workers’ comp, a worker, Dwight Nichols, broke a tooth while chewing on a candy at work.
The candy was provided for employees by the company. In fact, Nichols was the employee who was often in charge with picking up the candy and making sure it was available to employees while they were working. (And if you’re interested, the snack was a Hot Tamale, a chewy, cinnamon candy.)
The worker was on duty when he broke a filling and cracked his tooth. Is dental work compensable under workers’ comp in this situation?
Answers
1. The Workers’ Comp Board ruled Barela’s foot injury was compensable because he wans’t participating in a recreational or social activity. But his employer’s insurance company, Washington Group International, appealed.
The Court of Appeals of Oregon reversed the comp board’s decision and sent the case back for further consideration.
So, while the employer and insurance company have won this battle, the employee may yet win the war by somehow proving his injury is compensable.
2. Roberts didn’t get comp.
Why? The court said the injury happened while the salesman was engaging in a recreational or social activity primariliy for his own personal pleasure.
It said since there was no work-related reason for riding the motorcycle, the salesman wouldn’t collect comp.
3. In the case of Nichols, the candy-chewer, the employer rejected the claim on the grounds the injury happened due to an activity that was recreational or social.
But the Workers’ Comp Board, and later, a state court, approved the claim! Both said the injury arose out of and in the course of employment.
The comp board said in this case, eating candy was never touted as being recreational or social. It viewed chewing the Hot Tamale as being an ordinary part of an average work day such as taking a drink of water or sitting at a desk.
What’s the take-home from all this? HRB wishes there was a definitive formula or test to tell HR pros whether it’s worth it to contest questionable workers’ comp claims. As these cases show, it’s not black and white at all; it’s just about as gray as you can get. And to make matters worse, these rulings also vary from state to state.
Here’s one question to ask those making the decision about whether to contest: Will it be worth it to spend the money on legal, administrative and other resources to fight the claim?
Has your company ever contested a questionable workers’ comp claim? How’d it turn out? Let HR Blunders know by entering a comment below.
Tags: candy machine, court rulings, workers' comp
April 25th, 2008 at 12:02 pm
A workers compensation hearing representative was returning from an out of town hearing. During the 60 moile drive she reportedly injured her wrist due to to the strain from driving one handed on a windy day.
At the hearing, the hearing officer was very confused as to who was the claiment because the hearing rep was frequently in his office representing employers. Once we straighten that out, it was clear that she had no proof of any kind, she was clearly expecting this to go by uncontested. When her claim was denied, she appealed with proof from a notorous WC Doctor (whom she usually argued against) proving her injury and perment partial disability. The claim was not large and we decided we had sent the message that she shouldn’t assume we would let everything go so we didn’t fight further.
An analysis showed that 80% of our WC Hearing reps were on some form of work related disability. pretty high for a job in which the most strenious part is walking from the car to the hearing. We did get a laugh out of the “back strain” caused by getting locked in a restroom stall during dinner with a client and having to crawl under to get out.
April 25th, 2008 at 12:18 pm
When I was working for a manufacturing plant, an employee injured his back at work while lifting. The employee had been trained in proper lifting techniques just 3 weeks prior. The company required post accident drug testing for all accidents. The employee tested positive for drugs. He was fired. He filed a worker’s compensation claim, we contested due to the fact that he was under the influence of drugs, he won and was compensated.
April 25th, 2008 at 12:21 pm
My first job out of college, I worked for a company in Texas, we had an employee who filed a worker’s compensation claim because she said she slipped on a puddle of water on the top of the stairs and fell down. There were no witnesses that saw her fall and she did not report the injury to anyone for two weeks. Her supervisor did recall hearing a bump when the employee was walking up the stairs, but it did not sound like anyone fell and she saw the employee emerge from the steps right after the alleged incident looking fine. To be clear, the employee said she fell going down the stairs, the supervisor claimed to hear a bump when the employee was walking up the stairs. The stairs connected two main lobbies; no one heard or saw the fall.
Obviously, we contested this claim. This was a company that contested every claim unless it was 100% clear cut worker’s comp, which, in my opinion is unwise. There were many times I contested a claim and did not feel good about it. This was not the case in this claim. We actually went to court over this issue. By the time we went before a judge, the employee, unbeknownst to us, had full blown AIDS (she resigned shortly after she submitted her claim). I don’t have to explain to you what it looked like to have a giant company drag a dying – clearly very sick – lady to court over a worker’s compensation claim. We lost, and I honestly don’t believe we would have if the circumstances were different. We did not appeal. I will never forget the judge’s accusatory glare as she stared at our side of the table. And why was a young, green, HR newbie there? My company sent me to testify against the employee since I handled her claim and investigated the work site with our WC rep. This situation was, in my opinion, fairly clear cut from the worker’s compensation side, but very grey when you threw all the other factors in – which is often true in the world of Human Resources.
April 25th, 2008 at 12:48 pm
We had an employee that took a piece of candy from another employee. Then while talking with the candy in her mouth, choked on it and could not breathe. Another co-worker performed the heimlich maneuver on her and unfortunately cracked a rib in saving her life. She filed for workers comp. This time, fortunately for us, she was denied.
April 25th, 2008 at 1:58 pm
This did not happen where i work but to a friend of mine.
He has a firefighter and injured his knee three time while at work. Each injury was written up and he did see doctors for the injuries. He complained often about the injury and was told by doctors that he was okay. They would not approve an MRI.
Anyways, he also plays Soccer. One day, while playing soccer, his knee gave out completely and he had to have severaly surgeries to fix it. He was off work for 10 months and had to use sick time because the department denied the claim. When the specialist did the MRI, he saw obvious damage that had been there previous to this Soccer injury.
My friend retained a lawyer to fight the department and they ended up settling. He received back 1/2 of his sicktime. My friend was not trying to blame the department 100% for the injury but, he felt they should be responsible to some degree.
April 25th, 2008 at 2:41 pm
People will do anything to get money from comp when sometime it has nothing to do with work.
April 25th, 2008 at 2:42 pm
I work for a manufacture in California. My first week of work I had an old worker’s comp case where an employee had hit her head on a taco wagon door when she bent down to pick up a free burrito when they gave then out for free. She was on a paid break so the company did not contest the claim. The big problem I ran into was with the doctor who was leading her into an series of other issues that she wasn’t having until he mentioned them.
I was sitting in on one of the appointments when he looked over at her and asked if she has been “forgetting stuff lately” and she started crying and said “what?” it was like a movie script. I think he was running some sort of game on us, I have not been back to use that doctor since.
April 25th, 2008 at 7:48 pm
We had a very similar case as stated in #3. Our employees were provided with boxes of raisins to eat as snacks at work. The employee bit down on a raisin that contained a seed and broke a tooth. She also won the case.
April 27th, 2008 at 11:52 am
I had an employee caught stealing money(not disputed). He was promptly fired. Two days later he filed for worker’s comp for back strain lifting a box the day before he was fired. Of course I fought the claim but he won. $10,000.00. Insurance company said it was more cost effective to settle than to fight. What that did was show other employees how to scam the system. A couple of years later, I had another employee who one day just stopped showing up for work. No phone call, nothing.
When I called, she said she didn’t want to work anymore. Guess what. A week later she filed a claim that she dropped a bowl on her foot and when she bent over to pick up the bowl, she hurt her back. What do you think happened when I fought that claim? She won. Once again the insurance company said it was cheaper to settle than fight the case. I don’t know what is worse, the lying employees or these insurance companies who actually help facililtate the frauds.
May 7th, 2008 at 7:19 am
I think it is very telling that in Doug Reye’s case, 80% of the folks who represent his company in worker’s comp cases are on some sort of disability. I guess they have learned how to scam the system. That is sad.
The second thing I am taking away from this discussion is that providing food for employees leaves the door open to a compensable claim.
Finally, everyone should be wary of claims which are not promptly reported. We emphasize immediate reporting during new hire orientation. Ultimately, late reporting leads everyone to question the legitimacy of a claim and leads to suspicion when there are no witnesses.
By the way, I am not surprised that a positive drug test does not void a work comp claim.
May 7th, 2008 at 10:26 am
My company prides itself on being a family atmosphere and really worked to take care of a former employee that had been having some health issues only to find out later that it was a substance abuse problem. He was late to the job site on a regular basis and had repeated absences for his days in the office. When we finally cut him loose, we had already packed his belongings and had them by the front door. He claimed that he strained his back carrying his belongings to the car and has been milking the worker’s comp for several years now.
July 25th, 2008 at 1:42 pm
A positive drug test will not validate a w/c injury; it provides the means to terminate the employee if you have in place a policy for this. Sorry!
October 10th, 2008 at 3:48 pm
We never contest WC claims unless we are 100% sure the claim is not valid. For example, we had a personal trainer working at a gym. There were no customers so she was sitting at a desk doing paperwork when she sneezed and threw out her back. There were no witnesses but she was given 6 weeks of FMLA protected leave and worker’s comp payments.