McDonald's: No workers comp for employee shot protecting patron

Do they have no sense of decency?

Fast food giant McDonald's has denied workers compensation benefits to a minimum wage employee who was shot when he ejected a customer who had been beating a woman inside the restaurant.

A representative of the administrator for McDonald's workers compensation plan explained that "we have denied this claim in its entirety as it is our opinion that Mr. Haskett's injuries did not arise out of or within the course and scope of his employment.

"Nigel Haskett, then aged 21, was working at a McDonald's in Little Rock, Arkansas last summer when he saw a patron, later identified as Perry Kennon, smacking a woman in the face. A surveillance video of the incident, which had been posted to YouTube, was taken down after McDonald's charged copyright infringement, but according to written descriptions of the video, Haskett tackled Kennon, threw him out, and then stood by the door to prevent him from reentering.

See the full story from Rawstory.com here. See a news report and surveillance video of the event here.

The Commonwealth Court of Pennsylvania rendered a decision in the case of Philadelphia Gas Works v. WCAB (Amodei), dated February 4, 2009. The decision is highly technical but deals with the issue of pension offsets under Section 204 (a) of the Pennsylvania Workers’ Compensation Act.

Section 204 (a) allows the employer/workers’ compensation insurance carrier to take an offset or a credit for pension benefits paid. The question in this case was whether or not an offset gets taken by the net amount received by the employee or the gross amount received by the employee. There was prior case law that indicated that Section 204 (a) required the offset to be calculated via the gross amount. However, regulations were submitted by the Bureau which required the net amount to be considered.

In this case, The Commonwealth Court rules that the offset be based upon the net amount of pension benefits received. In layman’s terms, this means that it is the amount that the Claimant pockets from the pension, after all of the subsequent taxes are taken out, that would be the basis for the offset.

I am sure this case will be appealed to the Pennsylvania Supreme Court.

New Case Law on Serial Termination Petitions

There was a new Pennsylvania Commonwealth Court decision in the case of Delaware County v. WCAB (Browne) dated December 22, 2008. This case dealt with the issue of serial Termination Petitions by the insurance company. I have blogged about the issue of “serial termination petitions” previously, specifically about the case of Lewis v. WCAB (Giles & Ransome, Inc.) case. This blog post can be found here.

The Delaware County case involved the similar facts as in Lewis wherein a claimant previously defeated a termination petition and then a subsequent termination petition was filed. The Commonwealth Court held that the employer failed to establish that the Claimant’s physical condition had changed since the prior decision. The Commonwealth Court indicated that in order to show a “a change in the Claimant’s physical condition” before the employer can move forward with a Termination Petition, the employer could come forward with creditable medical evidence that the Claimant’s current physical condition is different than it was at the time of the last disability adjudication due to a total recovery from the recognized work injury. Such medical evidence, if found creditable by the WCJ and if referenced as a Finding of Fact in the Decision, would satisfy the employer’s burden of proving a change in the Claimant’s physical condition.

In other words, by accepting the employer’s medical evidence of a full recovery as creditable, a WCJ could properly make a finding that the employer has met the standards set forth in Lewis by demonstrating a change in Claimant’s condition.

I am sure this case will be appealed and we will receive more clarification on the burdens of proof in serial termination cases.