What happens when an employee is also a customer and an incident occurs? In this session at the 2020 CLM Workers’ Compensation and Retail, Restaurant and Hospitality Conference, a panel reviewed a national lawsuit, highlighting the intersection of a workers’ compensation claim and a premises liability cause of action.
- Paul Caleo, Attorney, Burnham Brown
- Sonya Goykhman, Corporate Councel, Starbucks Corporation
- Richard Keating, Attorney, Swanson Martin & Bell LLP
The workers’ compensation “grand bargain” ensures that workers hurt on the job will be provided with medical care at no cost to them and that the employer will provide a path to return to full employment. If there are permanent disabilities or limitations caused by the industrial accident, then the employer must evaluate whether they can be accommodated within their respective workplace. Comp benefits provided to the injured worker are conditioned on the worker not being allowed to then sue the employer for tort damages. The employer has a defense to a tort lawsuit that is routinely called the “workers’ compensation exclusivity remedy” defense. Under most state workers’ compensation programs, there are some very limited exceptions to the workers’ comp exclusive remedy defense.
Starbucks shared a case study in which an employee visited the store on his day off with friends. Upon using the restroom, the off-duty employee noticed that the sewer was backing up. He was asked if he would clock in and help with the clean up. He did just that. The sewer clean up professionals arrived to conduct their professional clean up, and then the employee helped clean to prepare the store for opening the next day. He claimed that the store cleaning materials had a reaction with the professionals’ cleaning materials, creating a toxic gas. He submitted a workers’ compensation claim for respiratory injuries, and then turned around to file a third-party liability claim.
You Can’t Have it Both Ways
In short, you typically cannot submit both a workers’ compensation claim and a premises liability claim. It is one or the other. At face value, a case like this would usually have no legs.
In this situation, the plaintiff had clocked in, which triggers availability of workers’ compensation benefits. He would have no other remedy. On the other hand, if he had not chosen to submit a workers’ comp claim, he could have submitted the liability claim. Once it went to litigation, Starbucks had no other option but to aggressively fight it.
Often when this situation occurs, the plaintiff’s attorney is inexperienced. You can try to explain the situation to them to help absolve the case, however, when you do that, you run the risk of handing the other attorney your playbook on how you plan to try the case. You must consider this if you are not confident that you can win. If the plaintiff’s attorney is receptive to the conversation, and is open to considering items that they might not learn for months in the discovery phase, they may be open to not pursuing the lawsuit.
For the plaintiff, it is recommended that an attorney advise their client to pursue the workers’ compensation claim if no exceptions comply with the case. The workers’ comp system is there for a reason and that is the best path for an injured employee. Further, workers’ compensation claims are typically quicker than pursuing liability claims and the “no fault” system means that you do not have to investigate elements like the plaintiff’s potential motivation to file a claim.
When a case does go into litigation, during the discovery phase, it is important to investigate training and job requirements of each store and talk to other employees. This is how you help determine negligence. Keep in mind that young people working together often become friends, so you may not get straight answers when interviewing co-workers.
When investigating, research documentation of cleaning processes and standards. This investigation phase is vital to determine what strengths and what weaknesses you may have in your case. If there are weaknesses, consider if it is worth exposing your business in that way before you proceed to trial.
In this case study, one of the best witnesses the defense had was the workers’ comp claims professional that was assigned to the employee/plaintiff once the claim was made. The plaintiff in this case testified that he did not know he filed a workers’ compensation claim. This witness testified to all communications with the employee/plaintiff to prove otherwise. Starbucks also asked their risk manager to testify. It was not an easy decision to make, but it worked in their favor because he helped create the company’s entire self-insured workers’ compensation program, therefore had deep knowledge of their safety standards.
As with any chemical exposure case, an effort should be made to exclude the opinions of the plaintiff’s experts who will seek to establish both an injury and the causation link to the injury. In this situation, the plaintiff was claiming that the respiratory failure would prevent him from obtaining college sports scholarships. To defend that claim, it was important to question the expert on the potential of a long-term injury instead of immediate shortness of breath at exposure that could have gone away after a short time.
Finally, the exclusive remedy defense should be asserted at every stage of the litigation as possible. In this case study, it was asserted by way of a Demurrer to the Complaint, and then by way of a Motion for Summary Judgment, and finally by way of a successful motion for non-suit at the close of plaintiff’s case after eight days of a jury trial.