Forgetful worker hurt coming to work for second time — should he get comp?
July 2, 2012 by Jim BurgerPosted in: Injuries, new court decision, Special Report, Workers' comp
PDF The coming-and-going rule usually prevents employees who get hurt en route to or from work from getting workers’ comp. But what about an employee who’s coming to work for the second time in one day, because he forgot something the first time and went back home to get it?
That was what a Nebraska court had to decide in the case of Parks v. Marsden. And it came down in favor of the employee.
Gill Parks worked a second job as a janitorial supervisor at a building in Omaha from 4 p.m. to midnight.
On the day in question, he arrived at work and clocked in, but then realized he’d left his lanyard with his identification badge and access card to the building at home — not the first time he’d done that, his wife later testified.
Since the building locked down at 6 p.m., he wouldn’t be able to gain access to various suites without his card.
So he drove back home to get it, without clocking out. On his way back to work, he had a serious accident resulting in, among other things, a traumatic brain injury, fractured vertebrae, a ruptured spleen, and multiple rib fractures.
The question for the court: Were the injuries work-related?
The company argued that his decision to leave after his shift had started amounted to a substantial enough deviation from employment that comp wasn’t warranted.
But the court disagreed. It said the accident had arisen out of, and was within the course of, his employment.
Its reasoning: He hadn’t left for any reasons having to do with personal convenience or comfort. He’d left only because he thought he had to. The company had a rule. No one was allowed to borrow anyone else’s access card. And employees were instructed not to let anyone in the building without one.
He had to have his access card, said the court, to do his job.
It didn’t even matter that he’d broken a couple of other rules to get it. He was supposed to clock out if he left, and he was supposed to get permission to leave. He did neither, but those didn’t constitute enough of a deviation from his employment, said the court.
He was on the clock, and the trip home was related to his job duties, so the events that transpired did so within the course of his employment, the court ruled.
Was it the right decision? Let us know what you think in the comment box below.
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Tags: Parks v. Marsden
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July 2nd, 2012 at 9:59 am
Ridiculous.
Rulings like this are killing the business climate in this country. Any idea who was at fault in the accident? I am curious if working two full time jobs allows someone to get enough rest to reduce the likelihood of an accident… or forgetting your access card at home.
July 2nd, 2012 at 10:09 am
Prayers to him and his family for this brutal accident.
Because he was on the clock, the decision to award him WC was right.
But, if he wasn’t hurt that bad and was able to return to work, he should be terminated immediatly for going against company policy regardless of the reason for leaving.
July 2nd, 2012 at 2:31 pm
He was on the clock because he didn’t clock out when leaving, breaking one of his employer’s rules. Shouldn’t get Comp for breaking the rule that allows him to get comp.
As far as the company was concerned, he should have been clocked out as per their policy.
If the justification is simply that he hadn’t physically clocked out, then think about the guy who gets off a 12 hour shift and doesn’t clock out on his way home and ends up in an accident. Does he get comp? According to this ruling he should. Who in their right mind would think that is right?
July 2nd, 2012 at 3:01 pm
Guest, I know it’s a screwed up situation but he was on the clock going to get his pass needed to do the job. He probably has done this many times and never has gotten caught. The company did try to deny him as they should have because he did go against policy. The company should have corrected his time card before going to court. They have the right to. And for the guy who works 12hrs and forgets to punch out and gets in an accident. His leaving work for home is not job related. Again the company can correct his time card accordingly.
July 3rd, 2012 at 11:52 am
Does this mean an employee is on the clock when he leaves home because he is carrying his ID and pass key with him? He is required to have it at work. So because he forgot it, he was not at work. The company might want to start checking people’s ID at the gate to the parking lot and if they don’t have it they are turned away, not allowed to clock in, and are not officially at work. Company might also consider having the ID card be what activates the time clock. No ID or pass key, not at work, go home, still at portal to portal since employee cannot start day without ID and pass key.
This was a bad call. My heart goes out to his family and to the employee, but this was a bad call for Workers’ Comp claims. Bad, Bad call!
July 3rd, 2012 at 11:53 am
If you go to a football game and forget you ticket, do they stop the game until you get back. Or a plane trip, do they stop or delay the flight if you have to run home because YOU forgot you ticket. He forgot his badge. He knew he needed it. It is not the companys fault. Enough is enough. When will people be responsible for their own actions!!!!!!!!!!!!!
July 3rd, 2012 at 11:53 am
Maybe in cases where the employees actiions directly caused the injury, the employeer should not have the accident charged to them, even if the court awards comp. (the court system see it as “someone elses money”, so this outcome should be expected). But workers comp is an insurance program after all, with all employers paying premiums.
In this case the worker repeatably forgot his badge and snuck home (on the clock) to get it. Yes, he was required to have it. But he was expected to show up with it.
July 3rd, 2012 at 12:02 pm
My heart goes out to the worker & his family and hope he makes a full recovery. However, this ruling is ridiculous; had it not been for the employee’s negligence, the accident wouldn’t have occurred. Wonder when, if ever, people will stop being rewarded for disregarding company policy, or the law for that matter… IMHO…
July 3rd, 2012 at 12:06 pm
If he had gone to his childs game would he have been paid, after all he didn’t clock out. This is a classic case of “it is never my fault”. The scope of his job takes place at his place of employment, in my opinion, not scrambling to do things he neglected to do as a routine responsibility to prepare for his job. It is his responsibility to show up at work ready to perform those duties which he is trained and authorized to perform. In my oponion, based on the information in the article, when he left the job, he was responsible for himself and his car insurance or that of the other driver became his responsibility. This falls under WC scam to me.
July 3rd, 2012 at 12:10 pm
Sharon, When an employee is leaving his home to go to work he is not on the clock because he didn’t clock in. This guy clocked in then left. So by law he was clocked in. I agree with you about having the guard at the gate (if there is one) turn whoever doesn’t have their ID away. Also where I work there is no gaurd at a gate but you need to have your ID (which has a barcode) to unlock the door to get in as well as clock in or you don’t work that day.
July 3rd, 2012 at 12:31 pm
Having a guard check cards and/or clocking in with the card would be a solution. However, the solution to employees stupidity and/or negligence, as almost always, comes at the employers expense! Our liberal court system and lack of personal responsibilility/accountability can only be hurting businesses ability to be profitable and provide jobs in the long run.
July 3rd, 2012 at 12:40 pm
i wonder if he would have been awarded comp if he had forgotten his shoes… surely they are required part of dress code and therefor necessary to do his job.
July 3rd, 2012 at 12:48 pm
Jeff, just a friendly FYI. The company we work for does this generally for security reason but it does help the forgetful ones stay in check.
July 3rd, 2012 at 12:58 pm
I was recently on a jury and resisted the group until I had to cave. They awarded almost a million dollars to someone who was CLEARLY scamming. I say to this article as I did to all of the other jurors: If you agree with this I hope your insurance goes through the roof and you go bankrupt. This is one of the stupidest decisions yet.
July 3rd, 2012 at 1:09 pm
Another example of “entitlements”. It is the way our country does business (and government) these days. I am always entitled to something - even if I was responsible for my predicament.
Back to reality: Our State has a “penalty” for breaking a safety rule when there is a WC claim and the penalty reduces the benefit by a percentage. At the very least, a penalty should be imposed for breaking the company rule that, I believe, could be construed as a safety rule - We need to know where you are at all times.
July 3rd, 2012 at 1:18 pm
I believe before we can reply to this story, more information is needed. Was the employer aware that he would leave work at other times when he forgot his badge? Did he leave without approval everytime he had left his badge? If this was a known habit for this employee, then yes, he should receive w/c. If the company knew that employee was leaving at any point of his shift, even without permission and did not correct the problem, they are liable.
This would cause me to install lockers for workers to leave badges and access cards.. Had the access card been stolen, it would allow anyone to acess the entire building. The employee can be suspended or terminated for this accident. Although, it must be stated in the policy that would be the result of breaking the rule (or other rules). He would be terminated for breaking policies, not for the accident. I can only guess it was not stated in the policy, the course of disciplinary action that could result in breaking the policy.
July 3rd, 2012 at 1:43 pm
This kind of thinking is exactly what is decaying the core values of our society! Why are we talking about guards and gates?! What about some plain old common sense and personal integrity!!!!!
While I feel for the man’s injuries and his family’s fear and sadness, we absolutely must stop this insanity of rewarding people who break rules/policies, cheat their employers, and defraud WC and other benefit programs that are intended to help people who have done nothing dishonest to get it! First, this employee was irresponsible when he left his ID and Access Cards at home. Okay, fine, we are all human — he made a mistake (and not the first time apparently), but this guy did not want to “pay the price” for his own negligence by losing time on the clock. Nooooo, he preferred that his boss pay the price instead! So … he snuck out, did not ask permission to leave, and did not clock out = he committed time theft, plain and simple! NOW, thanks to our amazingly twisted liberal courts and judges, he is being rewarded for his act of dishonesty by having the WC carrier and, by extension, his employer pay, not only for his being on the clock when he was NOT working, but also for the car accident and its aftermath of medical expenses and months of lost work time. (These should rightly be covered by HIS auto insurance and HIS disability insurance, NOT by WC and his employer’s increased WC rates.) Mark my words, this guy and/or his family will not be satisfied with the WC settlement, no matter how much it is. They WILL sue the WC carrier for a bigger settlement AND they will sue the Company, too, saying it was the Company’s strict policy which “forced” him to go home to get his ID and Access cards in the first place! Oy vey!!
July 3rd, 2012 at 2:23 pm
@ Sonja - agree with you completely; well said.
July 3rd, 2012 at 3:04 pm
Rediculous ruling. The man, I assume was in a traffic accident, not a workplace accident. While I offer my sympathy to the family, I TOTALLY DISAGREE WITH THE RULING. The court should not hold the company responsible for a traffic accident. We do not information to even understand the circumstances of why the accident occurred or whose fault it was, but I do know one thing - THE COMPANY DID NOT HAVE A DOG IN THE FIGHT.
July 3rd, 2012 at 3:29 pm
What about the fact that he did something on the clock that should have been done already, I would view it as theft of company time depending on company policies. This said my prayers go out to him and his family for a good recovery.
July 3rd, 2012 at 6:36 pm
I disagree with the courts decision. The worker should have clocked out to go home and should not be rewarded for taking company time. I just see that anything and everything seems to be paid by worker’s compensation insurance. I think they need to really examine what is an actual work related injury and what is just a general risk everyone takes.
On a more philosophical note - I’d like to see an end to most insurance - just do universal health care, single payer system, and cover all major medical needs. Lets just stop all these stupid insurance games of finding who is responsible and just get to taking care of people. Most of these cases are just accidents - as long as we have imperfect humans (which is all of us) we are going to have accidents.
July 3rd, 2012 at 11:22 pm
This is ludacris, they employee should not be granted anything for breaking the rules. He should have been terminated for leaving on the clock reguardless of the reason why he left, now on another hand if he hard gone about it the correct way and got permission from a supervisor to go get his access card it would be a different story. I am sorry to hear that he was seriously injured but if he would have taken the time to get permission he prolly would not have been in an accident.
July 3rd, 2012 at 11:37 pm
They should make his clock in badge and access card the same card, “all in one” this way you have less to loose, My company does this, and since they have changed it to this way, lost or forgotten cards have dropped, by the simple fact of, if you forget your card you recive a point, 16 points and your terminated, there is also an option to buy another card, Keep it in your wallet. Its called RESPONSIBILITY you are an adult now, I have been with the same company for 6 years, at the age of nearly 26, and not once forgot my access/time card, I want to get paid!!!
July 5th, 2012 at 9:45 am
Sorry Melanie, I for one do not want universal health care. I want the right to be free to make my own choices as an American citizen should have on what health care (and the price of such) is good for me. This is the land of the free. The freedom to be able to make individual choices and decisions as long as nobody gets hurt in those decisions.
Now if your talking about the same WC insurance policy for every state, I agree with that.