As strange as it sounds, sometimes employees intentionally injure themselves to try to get workers’ comp benefits. That was the allegation in this case from Arkansas.
Carolyn Kirshberger worked as a manager for Frost Oil Co. On May 29, 2012, she fractured her left leg in three places while at work.
An administrative law judge found her injury eligible for workers’ comp benefits. But the Arkansas Workers’ Compensation Commission reversed that ruling for two reasons. The Commission found Kirshberger:
- willfully and intentionally caused her injury, and
- wasn’t working at the time of her injury.
Kirshberger appealed the Commission’s ruling. The Arkansas Court of Appeals affirmed, basing its decision on whether she was working when she was injured.
On that day, a customer, Ann Greenhill, came into Kirshberger’s office to purchase oil. The two had been friends for some time.
Greenhill completed the purchase within ten minutes, then the two spent more than an hour talking about personal matters.
Office security video shows Kirshberger and Greenhill hugging and kissing goodbye in the plant office. Shortly after that, video shows Kirshberger jumping off the loading dock, injuring her leg. The Commission found she intentionally jumped off the loading dock to the level below – a distance of about 29 inches.
The appeals court found Kirshberger wasn’t working at the time of her injury because she had completed her business dealings with Greenhill in about ten minutes, and then the two talked about personal matters for over an hour. The court upheld the Commission’s decision for that reason. It didn’t address the question of whether the injury was premeditated and staged.
(Carolyn Hirshberger v. Frost Oil Company, Arkansas Court of Appeals, No. CV-13-910, 4/30/14)
Was friend an accomplice?
The appeals court’s written decision is relatively short and to the point since it only addresses whether Kirshberger was working at the time of her injury.
On the other hand, the Commission’s written ruling lays out the details regarding the allegation that Kirshberger planned her injury … possibly with the help of Greenhill.
The earlier ruling contains portions of testimony from the company’s HR manager who said after reviewing surveillance video, she noticed some “red flags.”
It appeared to her that Kirshberger jumped off the landing onto the surface below.
Also, after leaving the plant office, Greenhill seemed to pause on some steps and look back toward Kirshberger’s office.
An insurance claims investigator, Gary Smith, with over 40 years of experience, also reviewed the videos taken that day. His final assessment of the incident: “It looked intentional and staged.”
Among Smith’s observations about what he saw on the video:
- Greenhill gets to the end of a set of steps, turns toward Kirshberger’s office and watches, and
- There’s no sign of Kirshberger tripping in the video; she seems to jump off the landing with her hands in the air, instead of putting her hands down to try to break her fall.
Jerry Frost, President of Frost Oil, testified before the Commission on why Kirshberger might have staged her injury and why Greenhill might have helped her plan it:
- Kirshberger had been trying to buy the Frost facility, but she couldn’t obtain financing. She found out through a source that Frost was in talks to sell the facility to someone else. Frost said this “got her very upset.”
- Kirshberger found out about the potential sale of the facility on the Friday before the three-day Memorial Day weekend. Frost believed she thought about the situation over the holiday weekend, discussed it with Greenhill, and followed through with a plan to stage a work-related injury when she returned Tuesday.
- Greenhill had been placed on a “watch list” as a customer who had trouble making payments. Kirshberger didn’t follow the company’s directions on watch list customers, according to Frost.
The Commission noted that Arkansas’ workers’ compensation law says:
“There shall be no employer liability for compensation where the injury of death was substantially occasioned by the willful intention of the injured employee to bring about such compensable injury or death.”
That was the situation in this case, according to the Commission. It found evidence was clear and convincing that Kirshberger’s actions on May 29, 2012, were “premeditated and rose to deliberate willful misconduct.”
The videos were “compelling evidence,” according to the Commission that Kirshberger “staged the incident that led to her injury.”
One Commissioner wrote a dissenting opinion saying Kirshberger had proved she suffered a compensable injury from an accidental fall. The judge wrote:
“She credibly testified that she weighed 275 pounds with a 48DDD bra size and was thus top-heavy and unable to regain a standing position if she stumbled and lost her balance.”
Sounds incredible that an employee would go to this length to get workers’ comp. The good news for employers: Despite the fact that workers’ comp laws differ from state to state, many include language stating that comp benefits won’t be awarded when an employee intentionally causes his/her own injury.
Have you ever dealt with a case of an employee intentionally injuring themselves on the job? Let us know in the comments.