KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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is employee injured responding to alarm entitled to workers comp recovery / Webinar notice / Holiday party notice
September 21, 2018
Save the date: This years K&K annual party will be on December 14, 2018 from 6:30 to 9:30 PM at Pine Hollow Country Club, East Norwich, NY. We are going to need a head count this year and restrict the invitation to you and guest. invite with RSVP will be sent out soon. Hope to see you.
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is employee injured responding to alarm entitled to workers comp recovery
Staff pharmacist was called at home on Christmas day [a day the pharmacy was closed] and asked to check on a burglar alarm. The alarm company [it appears that the subscriber had its own central station] did dispatch the police but the police would not give any information on what they found, so the alarm company requested the subscriber to go to the store. The employee drove to the store, parked in the lot and got out and walked towards the door. Before getting there the employee stepped onto a curb, fell and was severely injured. He applied for workers comp insurance coverage.
There were two issues [you'll be in interested in only the first issue]
1. was the employee engaged in business of his employer at time of the injury or commuting to work, in which case all agreed he would not be covered by workers comp?
2. was the injury caused by pre existing medical condition and unrelated to employer's work, in which case employee would not be entitled to workers compensation?
"When Bess sustained his injury on December 25, 2016, he was sixty-six years old and had been employed with the Kroger pharmacy for about three years. Bess worked as a staff pharmacist, and on the day of the injury his employer required him to go to work to check on the pharmacy after the security alarm sounded. Bess left his home in Conway and drove to the pharmacy, which is located in Russellville. The pharmacy is a free-standing building located in the Kroger grocery store parking lot. Bess parked in the space directly in front of the pharmacy, sat in his car for a few minutes, and he observed that there was no sign of forced entry and that he could not hear an alarm sounding. Bess exited the vehicle and fell while climbing the curb, breaking his left leg."
"At the hearing, Bess testified in pertinent part that part of his job as a staff pharmacist is ensuring that the premises are secure and “making sure there is no pilfering or stealing[.]” Bess testified that on Christmas day in 2016, he received a voicemail message from the Kroger Central Alarm Control (“KCAC”) informing him that the alarm had sounded at the pharmacy. Bess advised KCAC to send the police and to ask the police if any doors or windows had been broken. KCAC explained that the police would not divulge that information, which Bess thought was unusual. A little later, Bess received a call from Scott Carpenter, an asset-protection manager for Kroger, who told him to go check on the store, and Bess drove to Russellville to do so. Bess testified that “I felt that I needed to comply with Mr. Carpenter’s request because that is my job. I am supposed to take care of the pharmacy and assumed whenever security or loss prevention called that we are required to take care of that. I thought he had apparent authority to tell me what to do.” Bess testified that he had been required to check on the pharmacy when an alarm sounded once before the incident on Christmas day. On the day Bess injured his left leg, he arrived in the parking lot and did not hear the alarm sounding, nor did he observe any signs of forced entry. He sat in his car finishing a cigarette and then got out of his car and approached the front door to unlock it. Bess stated that he stepped up on the six-inch curb with his right foot and then fell and broke his left leg. The security video of Bess’s fall was admitted and showed Bess stepping up onto the curb with his right foot and immediately falling down. Bess admitted that in the past he had issues with his right knee, he had used a cane, and that sometimes his right knee felt weak and as though it was going to “go out on me.” Bess stated that he had not had any treatment for his right knee, and it had been ten years since he had talked to a doctor about his knee. Bess also stated that his knee did not give out on him that day, that he had not had any trouble before the fall, and that three entrances to his home involved climbing and descending stairs."
Scott Carpenter described the protocol regarding the sounding of the security alarm. Carpenter explained that when the alarm sounds, someone from the KCAC calls the employees on the call list to make contact with someone to go to that location if they feel it is necessary for someone to go. The judgment of whether someone should go is up to the call center people. They decide if there’s someone that needs to be called to be notified or if they feel that someone may or may not need to go to the store. Carpenter testified that on December 25, 2016, KCAC contacted him and told him that someone needed to go check on the store and that police had arrived at the scene. Carpenter asked if there had been a break-in, but KCAC was unable to give him that information. Carpenter testified that though he was not Bess’s supervisor and had no authority over him, he asked Bess to check on the store, and Bess agreed to go."
The Workers Comp board determined that the employee was entitled to worker comp coverage. The workers comp insurer appealed.
Here's the law:
"Arkansas Code Annotated section 11-9-102(4)(A)(I) defines compensable injury as
[a]n accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence.
Our court has held that an employee is performing employment services when he or she is doing something that is generally required by his or her employer. Hill v. Treadaway, 2014 Ark. App. 185, 433 S.W.3d 285. We use the same test to determine whether an employee was performing employment services as we do when determining whether an employee was acting within the course of employment. Id. The test for determining whether an employee was injured while performing employment services is the same as the test for determining whether an injury occurred out of and in the course of employment: whether the injury occurred within the time and space boundaries of the employment when the employee was carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly. Herrera-Larios v. El Chico 71, 2017 Ark. App. 650, at 6, 535 S.W.3d 305, 310. The critical inquiry is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Id. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Centers for Youth & Families v. Wood, 2015 Ark. App. 380, at 4, 466 S.W.3d 422, 425.
The ALJ’s decision—adopted by the full Commission—that Bess was performing employment services when he was injured relies on substantial evidence. The ALJ found that Bess’s “trip to check on the store [was] an inherent and necessary incidental to a required employment activity in order to satisfy his job description.” The ALJ noted that Bess had previously driven to the store to check the alarm because he believed it was his job to do so. Also, the ALJ heard testimony that Bess and the pharmacy manager agreed that KCAC “called the shots” and that he must go to the pharmacy to check the alarm. Furthermore, there was testimony that the police refused to disclose whether the building had been physically breached, which related directly to Bess’s job description that he was responsible for ensuring the premises are secure and for preventing loss. There is no error in the Commission’s finding that Bess was performing employment services as he approached the pharmacy to check on the building and the situation involving the alarm, and there is sufficient evidence to support the finding that Bess was performing employment services when he was injured."
The court found that there was no evidence of prior medical condition that caused the accident, and therefore it was employment related. Workers comp coverage was awarded properly.
The case is Court of Appeals of Arkansas. KROGER LIMITED PARTNERSHIP I AND SEDGWICK CMS APPELLANTS V. MICHAEL LAWSON BESS APPELLEE
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