McDonald's Denial of Work Comp Benefits to Worker Shot is Appropriate

Nigel Haskett, 21 at the time he was shot, is or was an employee of a McDonald's franchise in Little Rock, Arkansas. On August 26, 2008, Haskett physically restrained a man and expelled him from the restaurant to end his battery of a female patron. Perry Kennon, the alleged attacker, went to his car, retrieved a gun and shot Haskett several times as he stood in front of the door to prevent Kennon's re-entry.

Police and the public have hailed Haskett's actions as heroic. But the franchisee's workers' compensation carrier is not swayed by such sentiment - they have denied Haskett's claim for workers' compensation benefits outright, claiming that his injuries did not "arise out of or within the course and scope of his employment" (as reported on rawstory.com).

The "Course and Scope" Rule

Few provisions surrounding workers' compensation coverage are agreed on by multiple states, much less every state. But every state does abide by the three-test "course and scope" rule. To be compensable, the injury must "arise out of and be in the course and scope of employment." Each of these terms is more specifically defined as follows:

• "Arising out of…" indicates a causal connection between the furtherance of the employer's business and the injury. If the employer benefits in some way from the activity, then the injury or illness suffered in the pursuit of that activity is considered to "arise out of" the employment.

• "In the course…" is a function of the timing and location of the injury or illness. The implication is that the injury must occur during operations for the employer, or "during employment," and at the employer's location or a location mandated or reasonably expected by the employer.

• "Scope of employment…" serves to more specifically define the first two tests by: 1) analyzing the motivations of the employee; 2) analyzing the employer's direction and control over the actions of the employee; and 3) analyzing the employer's ability to foresee the activities of the employee. Employee actions which ultimately lead to an accident or injury must be motivated, in whole or in part, by the "desire" to further the interests of the employer. Motivation or desire can be out of fear that failure to perform will result in the loss of a job, or from a more altruistic desire to do well for the employer. The basis for the motivation or desire is irrelevant; it is the fact that the motivation exists that leads to compensability. Further, the actions must, to some extent, be at the presumed direction of the employer or potentially foreseen by the employer.

Comparing Haskett's Actions with the "Course and Scope" Tests

Do Haskett's actions meet the requirements of each test? Comparing his actions with each requirement will clarify whether the workers' compensation carrier is correct in its denial or not.

Arising out of…: Does protecting patron safety benefit the business and further the business' objectives? Haskett's attorney stated his belief in an interview with a Little Rock television station that these actions accomplished both. If it can be proven that the employer and the business did or would somehow benefit from Haskett's actions, his injury may be judged to have "arisen out of" his employment.

Presumably, McDonald's business objective is to prepare and serve food while maintaining a safe and clean environment for its employees and customers. The question of whether wrestling someone out of the restaurant to prevent them from attacking another person qualifies as being a part of that objective. If customers feel safe, they are likely to eat at the restaurant.

Although a definitive "yes" to the question of "arising out of…" is tough to give, Haskett's actions border on furthering the business' objectives. It appears that his being shot arose out of his employment and satisfies the first test.

In the Course of…: This test is much easier to assign a definitive "yes." Haskett was on the premises of his employer, he was "on the clock" and presumably working at the time (not on break). No question that the injury occurred during the course of his employment.

Scope of employment: Compensability of Haskett's injury is on shaky ground when compared against the "scope of employment" test. This test has three qualifiers: 1) the motivation of the employee must be to further the employer's business; 2) the employer must have some direction and control over the employee's actions; and 3) the situation and actions must be foreseeable by the employer.

Employee's motivation: It is not likely that Haskett was motivated by the employer's business objectives. While his motivation was admirable, the protection of a seemingly defenseless individual, it does not meet the first test.

Direction and control of the employer: While the employer, in a letter to the press, supports and applauds Haskett's dedicated actions, neither he nor any manager directed Haskett to act as he did. The second qualifier is also not met.

Employer's ability to foresee the situation and actions: The question as to whether the situation was foreseen by the employer is somewhat gray based on the differing accounts provided by the two parties. According to McDonald's, part of employee training and orientation is a directive to not "try to be a hero." The employee handbook specifically states that the police are to be called and the employee is to not engage a robber or other such individuals. Haskett states in news reports that he never received this training.

If such warning and direction is in the employee handbook, which probably contains a signed statement that it was read in its entirety by Haskett, then the employer did foresee the possibility for a dangerous situation and gave strict instruction for employees to not engage. It was the anticipation and instruction of the employer that the employee stay out of harm's way. The third qualifier also falls against Haskett and in favor of the workers' compensation carrier.

Haskett's injury was NOT in the "scope of employment." His actions met none of the three "scope" requirements and he fails the third test.

Not Compensable

Sadly, two-out-of-three is not good enough; all three "course and scope" tests must be passed. The workers' compensation carrier may be correct in their denial of workers' compensation benefits for this injury.

Some arguments for compensability of this injury say that Haskett would not have been injured "but for" his being at work; this argument falls short because workers' compensation is not solely based on proximate cause. Just being "at work" is not enough to garner protection.

Based on the letter of the law, this is not a compensable claim when compared to the three-test "course and scope" requirement. Perhaps Haskett and his attorney can show "implied consent" or "ratification" of his actions since the employer did not try to stop him from throwing Kennon out of the store; or pull him inside when he stood at the door to prevent the attacker's reentry. The employer's inaction may be considered "at the employer's direction."

Regardless, this will likely go to trial before it is finally settled. It is impossible to know what any jury will do; so stay tuned.

NOTE: The definition of "course and scope" was taken from the soon-to-be-released book "The Insurance Professional's Practical Guide to Workers' Compensation: From History through Audit." This guide details how the modern workers' compensation system operates in the statutory, contractual and juridical world in which the coverage exists. Legal and contractual concepts are concretely demonstrated using simple and accurate explanations. What has been historically shrouded in "legalese" can now be confidently and correctly explained to clients in understandable terms. Unlike many workers' compensation texts, this book rarely delves into specific policy language.

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