Kidnap and rape/strangulation off-premises--HELP

manda · August 2004

I am trying to find law in Oregon (or elsewhere) that supports coverage for a worker kidnapped during her shift at gunpoint and taken off-premises and raped and strangled to unconsciousness. Kidnapper is in custody. Kidnapper is believed to be related to/affiliated with employee's manager. Employee seeks coverage for medical and psychiatric care.

I find Oregon follows a two-prong course and scope test for determining coverage but I cannot find any similar cases either granting or denying coverage.**

Also, does anyone understand how the Oregon Crime Victims' Act plays into this?

**Citing from WC 01-07907 (Hearthstone Manor):The work-connection test of ORS 656.005(7)(a) contains two parts, as indicated by its text: To be compensable, the injury must occur "in the course of" employment, and it must "arise out of" employment. Each part of the test imposes a different requirement. To occur in the course of employment, "the time, place, and circumstances of the injury [must] justify connecting the injury to the employment." Robinson, 331 Or at 186. To arise out of employment, "some causal link" must exist between the injury and the employment. Krushwitz v. McDonald's Restaurants, 323 Or 520, 525-26, 919 P2d 465 (1996). That link exists if employment exposes the worker to some risk from which the injury originates. Fred Meyer, Inc. v. Hayes, 325 Or 592, 601, 943 P2d 197 (1997). To meet the unitary work-connection test, an injury must, to some degree, meet both parts, Krushwitz, 323 Or at 531, but "the work-connection test may be satisfied if the factors supporting one prong are minimal while the factors supporting the other prong are many." Id. (citing Phil A. Livesley Co. v. Russ, 296 Or 25, 28, 672 P2d 337 (1983)).

Parabeagle · August 2004

If this is the case I'm thinking of, I would encourage the victim to file. The worst that can happen is the insurer will say "no." It would be worth a phone call to a compensability adjuster at your insurance company for a more definitive interpretation of Oregon law.

Is there private health insurance that can be used as a fallback position if the claim is denied?

I don't know who your carrier is, but I am aware there is a 'fast track' process for claims adjudication of critical claims (at least through SAIF Corporation). It allows the victim to immediately seek professional care while the claim is being processed. One of our employees took advantage of it after being robbed at gunpoint (but not physically injured) during his shift.

Good luck.

Whatever · August 2004

First of all, welcome to this site. Second, the rule is, when in doubt file. Whether or not it is covered should always be determined by the insurance company. Finally, there are times when compassion over rides the exact wording of any law or rule. This is such a case. Even if this had happened off-premises, I would go out of my way to help this person get all the help they are entitled to and would "stretch" the rules.

Balloonman1 · August 2004

Why type of job/employer are you? If it is say a convienence store WC may be liable. Issue that will determine was this an exposure created by employment, or just the act of a lunatic?
Hard to say, I am fortunate to have not run into this in the past.
My $0.02 worth.
DJ The Balloonman

System · August 2004

manda,

If I were you, I'd consult a lawyer in Oregon right away. Your company could face mega liability depending on the facts, such as the manager inviting the kidnapper to your worksite while knowing he was dangerous. Even if the risk of losing a lawsuit is slim, the potential damages could be in the millions.

If you don't have an attorney, you could call one of the attorneys who write our Oregon Employment Law Letter:
[url]http://www.EmployersCounsel.net/bios/oremp.shtml[/url]

Good luck.

James Sokolowski
HRhero.com

Don D · August 2004

This is certainly not a criticism of the new poster; but, I'm often amazed at the number of HR Managers and others who feel it is our position and responsibility to determine whether or not something might or will or should be compensable as an industrial accident/injury. It is simply never our responsibility. If I were the manager in this case, I would immediately file it and let those who are paid to, do the investigation and legal legwork.

System · August 2004

Manda, what is the status of this incident? I sensed that your post was emotionally-driven and you were also looking for support. What have your supervisors done with this? I'm assuming you've contacted your WC and an attorney. Please let us know.

njjel · August 2004

I agree with James. There may be other issues here which would be the failure of the company to provide a safe work environment. (I'm only making a general assumption here.) I would definitely file it with the comp carrier AND contact my liability carrier as well as the company counsel immediately. Please let us know how it turns out. Good luck!

WT · September 2004

I have seen a similar case where benefits were denied. The argument ran that being a victem of a crime was not of and in the course of duties but rather a risk all people take at any location. In that case, the crime happened at the work site late at night with the criminal getting into the workplace. Workers Comp is generally the only remedy for injured workers so they cannot sue the employer. You might regard this as cold blooded advice but compensation could well be the cheaper alternative particularly if a link to management could be construed as negligence on your part. If not, consider some sort of settlement to help the employee now when help is needed rather than waiting for the inevitable lawsuit. I wouldn't pinch pennies on this one.

Kidnap and rape/strangulation off-premises--HELP

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