December 9, 2008

Dollar Tree's Investment

On December 1 we blogged the story of Taneka Talley, an employee of the Dollar Tree stores who was stabbed to death at work by a deranged racist. We believed that Talley's death was compensable under workers comp, as she died at work, performing her job (she was stocking shelves at the time of the assault). Dollar Tree's TPA denied the claim under the theory that the death was not work related because the killer was motivated solely by Talley's race (she was African American). A few of our readers agreed with the denial.

This was no personal dispute. Talley and her assailant had no prior relationship. She died because she was in the wrong place at the wrong time. If she had been stabbed on the street, there would be no workers comp claim. But she died while working, so in our view her orphaned son is entitled to benefits.

Dollar Tree's mission statement refers specifically to the importance of good judgment: "Do the right thing for the right reasons." Well, Dollar Tree has now agreed to pay the full amount allowed by California workers comp for death benefits. The company's statement asserts that it was acting voluntarily because "we feel this is the right thing to do." Mission accomplished!

In this emotion-laden situation, a literal and nit-picking interpretation of the law is simply not in the company's best interests. To be sure, a case for denial can be made. They might even prevail in workers comp court (we doubt it), but Dollar Tree had much to lose in the court of public opinion. Some customers had called for a nationwide boycott and protesters picketed the Fairfield store where Talley died. With this agreement to pay the claim in full, Dollar Tree ends a public relations nightmare and preserves its standing in the community. Dimes to dollars, that's money well spent.



So Dollar Tree has been blackmailed into making a payment that the law does not require. In effect, a charitable contribution. So now there's a precedent, everybody who gets hurt on their employer's premisies will demand that the employer pay for it, whether the accident had anything to do with the employer or the work, or not. Why is it good to keep piling more and more burdens on employers?

I do not believe the employer/insured would of have prevailed with their denial in the long run. The IW was placed at a greater risk then the general population because of where she worked. Unlike domestic violence where the victim would be targeted anywhere.

I agree with Mikk. Although you have every right to write your blog any way you want, the anti-employer slant of the Dollar Tree entry is offensive.Since when is it "literal and nit picking" to defend a claim for which there is a traditional and reasonable defense? Of course every person is saddened by the death. But the remedy is not to force into the w.c.system a claim that doesn't fit. You may doubt the employer would prevail in Calif. but there are several states where the burden is on the worker to prove job-relatedness and I am not as sure as you are that the employer would lose in those states.My guess is that there are some enterprising Calif. lawyers who would love to file a civil suit against Dollar Tree, and have the chance to get in front of a jury,if there is no w.c. jurisdiction.

Actually, financially speaking, accepting the claim is in the best interest of Dollar Tree as well. If the claim is denied as not work-related, arguably this would allow Talley's family to file a civil suit. The costs of a successfully won civil suit (or even the court costs of defending one) would certainly over-shadow survivor benefits through W.C.

We faced a similiar situation several years ago, with work place shootings by a racially motivated disturbed individual. The traditional analysis for work comp liability did not provide a clear answer. Typically, assault in the work place will fall into one of two categories; assault as a result of a disagreement arising from a work related topic OR an assault for purely personal reasons. In one sense, the shooter has personal animosity against the worker, based upon racial hatred. But the logic of this exception is not convincing, where the victim does not even know the assailant.
Is it prudent for the insurer to investigate to determine the assailant's "motives" ? I believe the answer is "yes", you need to rule out reasons of personal animosity. If you rule out personal animosity I believe the analysis is simple, Was the employee in a place required as a condition of their employment? Was she furthering the business of the employer? Here she was stocking shelves... an easy answer, it's compensible... once you rule out the "personal animosity" exception.
It is important to investigate as workers compensation cases can exposure the parties to the most unusual circumstances. For example, we had a case where a construction worker, was shot and killed in his out of town hotel room. At first blush it seems like an easy case, a traveling employee remains within the scope of employment, unless they deviate from that relationship. The subsequent police and insurance investigations resulted in the wife and her boyfriend being charged with the murder. One never knows ...

Anyone who believes that this claim does not fit the system is wearing some pretty strong ideologically-tinted glasses. She was murdered in the store by a stranger during her work shift. Suggestions that this interpretation of the law is 'anti-employer' or 'adding extra burden to employers' stretches the imagination. But for some, the store's financial 'burden' is the only one worth considering. Dollar Trees' burden, however, doesn't compare to the life lost in the store.

Call it what you will -widow and orphan law or whatnot - it's not a work comp injury. The Legislature of the state where I reside recently passed legislation that cleared up ambiguities such as this one. It's no doubt that this is a tragic situation, and the employee's dependent might well prevail in a civil suit against Dollar Tree for failing to adequately protect its employees, but to bootstrap this fact scenario into a work comp case is wrong, and it bastardizes the work comp law that was passed to protect employees from accidents that are CAUSED by their work rather than injury that employees could encounter anywhere.

In states that adhere to a positional risk theory, this accidental injury is compensable.

In states such as Illinois that do not adhere to a positional risk theory, it should not be compensable.

I agree with the Illinois approach--what about her being randomly attacked at work should make the claim the responsibility of her employer?

If the employer knew she was at risk due to a personal factor and they didn't protect her, it would make more sense. But if this truly was a random occurrence, it is a tragic event and outcome but shouldn't be compensable.

No one is suggesting that an employer's financial burden outweighs a worker's death.The posts were discussing whether this is a compensable w.c. claim. Jim might be stating a correct interpretation of the law for his state,but in mine(Virginia), which does not have a presumption of compensability and is not a positional risk state, I do not believe his analysis is correct.

This employee did not go out of her way to get killed. A retail outlet leaves its doors unlocked and anyone can enter. Employees are at the mercy of whoever walks in the door. To my mind, this is why it should fall under worker's compensation. The store 'allowed' this gunman into the store. The employee had no protection at all.

First off - this is a horrible tragedy.

Two different questions are being combined into one. Is this case compensable? and Should this case be compensable?

In answer to the first, Gene is correct in his analysis. The positional risk theory or doctrine is the key.

Should the positional risk doctrine be the "be all" to compenability? If we take Jessica's line of thinking, we can argue that the flu an employee in retail suffers is work related. Most Workers Comp Acts use "in the course of and arising" from the work. The work itself needs to be the cause. The worker chooses to work with the public, he/she is not sentenced to work threre.

Just a small point, but (I think) an important one, albeit slightly off-topic. Dave, your last sentence states: "The worker chooses to work with the public, he/she is not sentenced to work there." I don't agree with this particular line of thought. No one is sentenced to work in mining, but we still have laws protecting the workers that work there. I'm not say the analogy is directly comparable to this case. I'm just saying that the argument "No one forced her to work at Dollar Tree" is flimsy at best.

For the people who oppose compensability, I would l like them to explain why or why not the follow are/should be compensable.
1. Clerk at 7-11 is shot by a random guy who wants to rob the store.
2. Clerk at 7-11 is shot by a random guy who wants to shoot a black guy/clerk/someone.
Simply put, people who work with the public, face the risk the public will injure them, intentionally or unintentionally. When that risk becomes a reality, the employee is injured because of their work.
Indeed, many employers adopt risk management strategies to protect their employees from violence by the public (security guards, bulletproof glass, cameras, etc).

Brad - Why should the employer be liable if someone was shot not due to her work as a clerk but skin color?

What risk management strategies do you propose for all people in contact with the public?

You have not answered my question. Why does the shooter's motivation matter to the compensibility of the injury?

She was shot at work. How is that not "do to her work?"

In some states the shooters motivation is the determining factor in deciding whether the shooting "arose out of" the employment.

"Shot at work" - she was not shot because whe was a clerk. She was shot due to her skin color.

If the perp entered her church and shot her there not because she was a member of the congregation but because of her color, would the church be responsible?

I would argue that if the perp shot her because of he hated clerks, it would be compensable.

Now what is your theory of how this incident arose from her employment? She was in the scope if employment but it did not arise from her employment.

I'm surprised that no one has drawn a parallel to 9/11. The 9/11 victims had no personal relationship to the killers, whose motivation was cultural and political hatred. That was another state, of course, but the I can't imagine an insurer denying a 9/11 death claim on that motivation basis. The biggest difference is the scale of the crime.

Unless the church is covered by a WC statute (with respec to parishioners0, the comparison is totally without merit. If a visitor is injured (or killed) in a church, the victim has a remedy under state tort laws.

At work, a worker gives up his/her tort remedies in return for WC benefits should they be injured at work. Because employers end up free from tort liability, employers benefit from this arrangement.

Frankly, I suspect most employers would prefer WC liability to the prospect of facing lawsuits alleging they provided inadequate security to protect employees.

Let's say someone "goes postal" and shoots his superior b/c he is black. While trying to escape, he shoots an office assistant, a coworker, and the security guard who were "in the way."

Should the supervisor be denied WC benefits while the others are compensated by WC insurance?


Submit your email to be notified when this site is updated

Need help with your workers' comp program?

Monthly Archives

About this Entry

This page contains a single entry by Jon Coppelman published on December 9, 2008 1:13 PM.

Maryland officials monitoring GM solvency related to workers compensation was the previous entry in this blog.

Health Wonk Review, medical costs, price hikes, joint & several liability, and more is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.

OpenID accepted here Learn more about OpenID