7-31-2019; Take A Leap: Is Jumping Off a Truck Dock Compensable in Illinois WC or Your State?; The Belt Dodges An FELA Death Claim and more

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Synopsis: Take A Leap: Is Jumping Off a Truck Dock Compensable in Illinois WC or Your State? An in-depth look at the Benson case by Nathan Bernard, J.D.

 

Editor’s comment: First, KCBA and defense attorney Nathan S. Bernard, handled this claim at all levels of litigation from the arbitration hearing to a panel of three commissioners at the IWCC then before a circuit court judge and finally briefs and oral arguments before the five esteemed justices at the Illinois Appellate Court. At all levels, it was unanimously held the claim was denied with zero workers’ compensation benefits awarded.

 

Second, credit should be given where credit is due, and we applaud the insurance carrier and Respondent for their strong diligence in providing defense evidence necessary to support denial of this claim. As noted in further detail below, the incident was captured on high quality security videotape that was properly maintained and then expeditiously retrieved in the aggressive investigation by the adjuster and employer representatives. This security video and solid employer representative testimony later at hearing, allowed the defense to present arguments for denial and rebut inconsistencies and allegations which arose during the course of litigation and the appellate process.

 

In certain circumstances, there is a duty to preserve evidence but regardless, lost evidence at the outset of the claim for unexplained reasons or from inattentiveness can certainly weaken defenses and prevent the successful opportunity to properly deny a claim. Our attorneys at KCBA would be happy to provide advice on steps necessary for an initial aggressive investigation of a claim – please feel free to send a reply and contact us at any time. Nathan Bernard can be reached at nbernard@keefe-law.com and (312) 756-3726.

 

Now, to the crux of the claim; in Benson v. Kirby Medical Center (14 WC 36242), security cameras on the loading dock of a hospital bay showed Petitioner jumping off a loading dock off of a hydraulic lift and falling to the ground sustaining a fracture to the lower extremity. The video shows, and Petitioner testified, he purposefully jumped off of the loading dock in order to get down to the ground quicker so he could enter a company vehicle parked in the loading dock bay area. The video shows, and Petitioner testified there were stairs to the immediate right he could have taken which he estimated would have been an extra 30 seconds to get off the loading dock plus a ramp on the other end of the loading dock he could have taken. He estimated there would have been an extra 60 second to get off the loading dock using the alternate path. Petitioner agreed he was never directed, either verbally or in writing, to ever jump from the loading dock or to use the hydraulic lift to get down off the loading dock, but that he had been told to hurry and get the task done quickly. As noted above, the videotape, while showing an incident occurred, prevented the potential for inaccurate testimony, inconsistencies, or exaggeration and focused the issues narrowly to allow the law to be applied to a very specific fact pattern.

 

A job description and safety documentation entered into evidence at hearing did not specifically mention any limitation on jumping off the loading dock. Petitioner was required to observe “all safety protocols”. At arbitration, it was found Petitioner’s actions took him entirely out of the scope of his employment and he was injured while violating “common sense” safety rules. The Arbitrator denied all benefits and noted Petitioner chose to voluntarily, without the knowledge of Respondent, engage in a hazardous method of taking himself off the loading dock when his duties and good sense required him to make the trip in a safer manner.

 

The fall-down injury “was not the result of fulfilling any duties required of his employment and thus there was no employer/employee relationship at the time of the accident.” Further, longstanding appellate case law regarding ingress and egress to and from an employer’s premises noted employers should not be required to “police” all routes when an obvious safe route is provided. Here, the Arbitrator found when Petitioner ventured off a safe route provided by the employer for ingress/egress and instead, purposefully jumped off a loading dock onto a hydraulic lift thus falling off to the ground. The Arbitrator felt Claimant exposed himself to an unnecessary personal risk, for his own personal convenience. Any injury sustained while performing this activity was not within the employment relationship and did not arise out of or in the course of the employment.

 

On appeal, the IWCC, Circuit Court, and Appellate Court disagreed somewhat with the Arbitrator and found Petitioner did establish an employee/employer relationship at the time of the injury and Petitioner was in the course of employment, but did not disturb the Arbitrator's ultimate determination the injury was not compensable insofar as it did not arise out of his employment.

 

In a Rule 23 order (which is oddly “unpublished”), what the IL Appellate Court did, and we strongly agree with, is to perform a risk analysis which all parties/both sides of the bar should do. The initial step in considering the “arising out of” component of a worker’s compensation claim is to determine the type of risk to which the claimant was exposed at the time of injury:

 

  • PERSONAL: Is there any evidence the injury was the result of a personal risk, such as an idiopathic fall?;

  • EMPLOYMENT: Is there any evidence the risk of injury was peculiar to the claimant’s work or that the risk was the result of a defect in the premises?;

  • NEUTRAL: Do members of the general public encounter the risk of injury in their everyday living?

 

The Appellate Court, Worker’s Comp Division, applying the “manifest weight of the evidence” standard, agreed with the denial of benefits as the risk that resulted in the injury was jumping off of the loading dock, an act which was not reasonably expected to be performed in connection with the assigned duties and did not stem from any employment requirement such as would have exposed him to risk greater (qualitatively or quantitatively) than that faced by the general public. Therefore, it was a neutral risk that was not compensable as members of the general public encounter the risk of injury descending from elevated platforms or structures to ground level in their everyday living.

 

Again, Nathan S. Bernard of KCBA was the defense attorney that handled all aspects of litigation and the appellate process regarding this denied claim. Nathan Bernard can be reached at nbernard@keefe-law.com and (312) 756-3726.

 

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Synopsis: The “Belt” or BSNF Dodges an FELA or Railroad Death Claim.

Editor’s comment: It is hard not to agree with this ruling by the U.S. Seventh Circuit Court of Appeals. In Guerrero v. BNSF RAILWAY COMPANY, the legal question the court had to resolve is a sad story: as Celso Guerrero was trying to drive to his job at BNSF Railway through a snowstorm early one morning, his car skidded, it collided with a snowplow, and he was killed. His widow, Rita Guerrero, who appears on her own behalf and as administrator of her late husband’s estate, was seeking compensatory money damages from BNSF.

 

The Federal District Court concluded Decedent Guerrero was not acting within the scope of his employment when the fatal accident occurred, and thus the Federal Employer’s Liability Act (FELA) does not apply to the case. In our view, the question of work status is a

close one, but it is one the Federal Appellate Court did not need to resolve. They ruled no jury could find BNSF was negligent in any action it took or failed to take with respect to Guerrero, and so on that ground they affirmed the District Court’s judgment.

 

Celso Guerrero was a machine operator for BNSF. His normal schedule required him to work from Monday through Friday, but he was subject to possible overtime work at other times. His primary duty was track repair, but he was also expected to perform other tasks as needed, including snow removal. On Saturday, January 31, 2015, Guerrero received a telephone call around 6:00 p.m. from Nick Burwell, the BNSF Roadmaster in charge of track maintenance for the Galesburg, Illinois, railyard and surrounding area. Burwell told Guerrero a significant snowstorm was expected, and so he was looking for employees to clear snow from the tracks starting the next morning at 7:00 a.m. at the Galesburg facility. In making these calls, Burwell followed a union seniority list. Guerrero was not required to accept this work opportunity, but he

did.

 

Driving his personal vehicle, Guerrero left his home in Kewanee, Illinois (about 40 miles northeast of Galesburg) at 5:00 a.m. on February 1. The predicted snowstorm was underway, and it was snowing hard as Guerrero drove along Illinois Route 34. The National Weather Service documented at least four, but likely closer to eight, inches of snow cover along his route. While heading southbound, near Oneida, his car slid on the roadway, spun across the median, and collided with a snowplow being operated by the Illinois Department of Transportation (IDOT); the plow was in the northbound lane. Guerrero was severely injured and died the next day in the hospital.

 

Asserting that her husband was killed while he was on duty and acting within the scope of his employment, she sought compensatory damages. BNSF took issue with her assertion that Guerrero was on duty at the time of his injury; it contended that he was merely commuting to work, as he did for his normal shift every day, and that commuting falls outside the scope of employment in this situation. BNSF argued in the alternative that no trier of fact could find that BNSF was negligent either by act or omission, and that this was an independent reason for judgment in its favor. On BNSF’s motion for summary judgment, the federal district court ruled that Guerrero’s fatal injury occurred at a time when he was not acting within the scope of his employment. The FELA thus did not apply—a conclusion to which the judge attached jurisdictional significance. Without addressing BNSF’s negligence argument, the judge granted summary judgment in BNSF’s favor, presumably with prejudice, since the judgment document does not specify otherwise and makes no mention of a jurisdictional ground for dismissal.

 

The Federal Appellate Court focused primarily on BNSF’s alternate, negligence‐based argument. The reason is simple: it appeared to them there are disputed issues of material fact on the former point that would preclude summary judgment, but there are no such issues on the latter point.

 

The Appellate Court noted the federal reporters are littered with cases examining whether the FELA applies to an employee injured while he or she is commuting to or from work. Often the answer is no: courts generally hold the employee is on their own during the commute and does not report to work until they have reached the place of employment. Some cases, however, slip into a gray area. For example, employment status is often contested where a commuter is injured while traveling to or from work on the same railway that employs them, using a pass issued by the employer. Nonetheless, those cases usually find  the travel is outside the scope of employment. The ruling noted those commuters “are excluded from [FELA] coverage for two reasons—they are not required to commute on their employer’s trains, and while commuting, they are in no greater danger than any other member of the commuting public.”

 

A second group of borderline cases includes those in which an employee has just clocked out, or not yet clocked in, but is traversing the work site on the way to or from the assigned post when injured. Those cases typically uphold FELA coverage, because “traversing the work site … is a necessary incident of the day’s work.” Relying on a former line of cases, the district court found Guerrero’s accident occurred while he was on his way to work, far from his worksite, as he drove his personal vehicle on a public highway and faced dangers identical to the rest of the commuting public.

 

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