By Lance J. Ewing
On March 27, 1981, in Washington, D.C., six bullets were fired in 1.7 seconds as President Ronald Reagan and his entourage left the Washington Hilton. The first bullet struck White House Press Secretary James Brady. The second struck District of Columbia policeman Thomas Delahanty. The third struck no one. The fourth bullet hit Secret Service agent Tim McCarthy, and the fifth bullet bounced off the waiting limo landing on the concrete walkway. The final bullet fired in those brief seconds rebounded off the limo striking President Reagan. A mass shooting takes very little time. Most mass shooting events are over in less than five minutes unless the shooter goes mobile. While the actual event is short-lived, the aftermath of such an incident takes much longer to recover from, including those where workers’ compensation is concerned. Recent events in Orlando, Dallas, and San Bernadino prove that mass shootings quickly are becoming more commonplace than ever, making preparation for them more critical. While there is no federal law specific to the deterrence of workplace violence, the federal Occupational Safety and Health Administration (OSHA) requires employers to provide a workplace that is free from dangerous conditions or hazards that are likely to cause serious injury or death. This general duty to prevent dangerous working conditions is interpreted to include threats of workplace violence, including a mass shooting event. In addition to what is required by OSHA, many claims and risk managers must ask, “Does state workers’ compensation cover employees in the event that they are involved or affected by a mass shooting event?” In many cases the answer is “It depends.” Most injuries or deaths in the workplace (within the course and scope of employment) will be covered by workers’ compensation coverage according to each state’s statutes and within the workers’ compensation carrier’s policy. Some states do prohibit workers’ compensation benefits for violent acts. State laws differ on whether there are any exceptions that would allow an employee to bring litigation against an employer in court for injuries caused by a mass shooting incident. In many states, as long as the shooting occurred while the employee was on the clock and performing a work-related job, he would most likely be covered under workers’ compensation. Conversely, in some states, including California, the shooting also must arise out of employment in order to be subject to workers’ compensation. In this case, a victim can file a lawsuit against the employer if the shooting occurred between two co-workers at their place of employment. If your company works in a high-crime area, there could be a legal duty to provide a higher level of security and training. Risk managers and claims professionals also should be proactive in considering the following questions:
Employment contracts and the standard question of “who is my employee” should be vetted well before an incident that could become litigious in the workers’ compensation arena. In Lewis v. L.B. Dynasty, the seven-year workers’ compensation appeal was ruled in favor of the “contracted employee.” Lewis, an exotic dancer in South Carolina, was dancing in a club when a fight broke out and she was struck in the abdomen by a stray bullet. She filed a workers’ compensation claim due to severe damage to her internal organs and the loss of a kidney as well as substantial scarring, which left her unemployable as an exotic dancer. The case went all the way to the South Carolina Supreme Court, and in 2015, the court ruled that she was an employee and entitled to workers’ compensation benefits. The aftermath of a shooting also is likely to result in workers’ compensation claims for post-traumatic stress disorder (PTSD). PTSD routinely falls into two classifications. The first is when PTSD is dueto a shooting in the scope and course of employment. The second is when PTSD is due to nonworkplace suffering that is triggered by circumstances at work. PTSD situations can happen in any profession, but there are a few occupations that are more likely than others to see PTSD exhibitions, such as police, firefighters, and emergency medical technicians (EMTs). If a school or university teacher witnesses a shooting, PTSD might be a claim. Security, convenience store, and retail employees also may have a higher exposure to PTSD when shootings occur. Each individual state has its own criteria for allowing a PTSD claim, so knowing the state thresholds for accepting a claim is critical. For example, PA Liquor Control Board v. Workers’ Compensation Appeal Board (Kochanowicz) involved Gregory Kochanowicz, who managed a liquor store. In April 2008, a masked robber put a gun to the back of his head and duct-taped him to a chair during a robbery. However, he was not physically injured or shot. The Pennsylvania Liquor Control Board and its insurer argued that robberies were a “normal working condition” and, therefore, his resulting PTSD should not trigger benefits. In 2015, a higher court disagreed, and the claimant was awarded benefits. The employee’s attorney said that the opinion “affects not only his case but…anyone who works in a retail environment, a bank, a grocery store. As a legal precedent in Pennsylvania, it’s very, very important.” Prior knowledge of your state’s workers’ compensation claims rulings regarding PTSD will be to your advantage. The TPA handling company claims should be able to provide this information. A workplace shooting incident may be over quickly, but the long-term effect on workers’ compensation may last a lifetime.
Lance J. Ewing is executive vice president of global risk management and client services for Cotton Holdings Inc. He is a past president of RIMS and has been a CLM Fellow since 2014. He can be reached at lance. firstname.lastname@example.org.