Commercial Liability: Case # 27

Statutory Liability: Workers' Compensation

Facts:

Sue Sampson, age 42, worked as a manager for a large department store that has multiple locations throughout the state. Part of her job required she visit these stores to ensure they had adequate inventory and that the products were properly displayed.Many times she participated in assisting these stores, including building special displays, stocking racks and shelves, and even helping to unload trucks as deliveries came in. All of these activities were part of her job responsibilities.

At one of these stores, Ms. Sampson claimed she injured her neck while performing some of the physical activities. She sued her employer for workplace negligence. She claimed that she was supposed to have assistants, but due to cost cutting measures, the company had eliminated many of those positions in all of the locations. As a result, Ms. Sampson claimed she had to complete these physical activities on her own which resulted in her injury. She further claimed she reported it as a workers compensations claim; the claim was denied and she was told to submit her claim to her group health insurer.

Her company claimed they were never informed of this on the job injury; they believe she sustained this injury pursuing activities outside of her employment.

Damages:

Ms. Sampson claimed she suffered a herniated cervical disc which required surgery. She had two ribs removed over a two year period, one on each side, to ease the pain from the herniation. She claims that she continues to have pain, which is at times debilitating, and that the surgeries did not help relieve her pain. She suffers from depression and has to lie down throughout the day to alleviate her discomfort. She has not been back to work since her second surgery - over 24 months ago. She claims she loved her job and had been advancing within the company prior to her injury. She currently has a medical lien of $250,000 and believes she will need a cervical fusion in the future. Prior to the injury, she was making $125,000 per year in wages.

Her company argued that the injury did not occur on the job but offered no defensive arguments as to the extent of the injury or her allegations regarding the loss of her career progression.

What information would you review on the Information Page of the WC & EL policy issued to Sue's employer and why?

Is Sue covered under Part I? Part II? Explain your answer.

If Sue is covered, what type of damages would be payable to her (under which coverage part)? Detail the dollar and/or time limit you would pay and why, outlining any defenses the company would have to mitigate the damages.