An employee's injury, sustained when she slipped on wet grass in her yard while walking to her automobile to go to a work-related appointment, did not "arise out of employment" and thus was not compensable under the Workers Compensation Act, according to the Supreme Court of Oklahoma.

Cheryl Worden was a field nurse for Odyssey/Americare of Oklahoma. She lived about 20 miles from her employer's office. She went to the office about once a week. Otherwise, she worked out of her home, scheduling appointments with patients and traveling to visit them. Ms. Worden was walking to her car to go to a patient appointment and slipped on wet grass in her yard, falling and injuring her foot and ankle. The grass was wet from rain. If not for the patient appointment, she would not have left the house. Ms. Worden filed for and was awarded workers compensation benefits.

The appellate court concluded that, while Ms. Worden was in the course of employment at the time of the injury, the injury did not arise out of employment. The court said that the question here is whether Ms. Worden's employment subjected her to a risk that exceeded the ordinary hazards to which the general public is exposed. The court concluded that it did not. The court emphasized that Ms. Worden's employment exposed her to no more risk from injury from wet grass than that encountered by any member of the general public. The court ordered that benefits be denied.

Odyssey/Americare of Oklahoma vs. Worden, Supreme Court of Oklahoma, Nov. 4, 1997. Rehearing Denied, Dec. 3, 1997. (BI/05/Jy.-$10)

Benefit reduction not discrimination

In a case of first impression in Kentucky, the Court of Appeals ruled that reducing an income benefits award for workers compensation by 10% beginning at age 65 did not amount to age discrimination in violation of the state constitution's due process and equal protection clauses.

Mary Jo Edwards, a 66-year-old woman, worked for Louisville Ladder Co. for about 30 years. In February 1993, Ms. Edwards fell and suffered a hip injury that was not work-related. Six months later, she returned to light duty. In September 1994, Ms. Edwards experienced pain in her lower back when she stooped to pick up some parts at work. She filed for workers compensation.

Ms. Edwards was awarded a 20% work-related disability; however, it was also directed that her benefits be reduced by 10% beginning at age 65 and by 10% each year thereafter, until and including age 70. This "tier-down" reduction was enacted by the state General Assembly in 1994. Ms. Edwards filed an appeal, arguing in it that the "tier down" provisions of the workers compensation law constituted age-based discrimination and violated her rights under the state constitution's due process and equal protection clauses. The appellate court said that a worker's level of compensation often decreases upon attaining the age of 65 as a result of retirement, reduction in work or other reasons. Thus, the court said the General Assembly had a rational basis for enacting the "tier down" provision. It was held to be constitutional.

Edwards vs. Louisville Ladder, Court of Appeals of Kentucky, Oct. 10, 1997. (BI/01/Ju.-$10)

ERISA punitive damages ban upheld

ERISA does not provide a damages remedy for the denial of rights under a benefits plan or for breach of a fiduciary duty in the withholding of such benefits, according to the 1st U.S. Circuit Court of Appeals.

In 1991, Charlotte Turner was diagnosed with breast cancer. The disease was at first treated by surgery, chemotherapy and radiation. In May 1993, tests showed that the cancer had metastasized, was beyond control by conventional therapies and threatened Ms. Turner with death within 12 to 18 months. Ronald Turner, Charlotte's husband, was employed by General Motors Corp., and Charlotte was covered by the health coverage that the Fallon Community Health Plan Inc. provided for family members of GM's employees. The plan expressly excluded "bone marrow transplant for treatment of solid tumors." The Turners sought to have the plan approve her participation in a clinical trial of bone marrow transplantation treatment. Mr. Turner brought suit in state court against the plan, seeking damages for failure to provide coverage. The case was transferred to the federal court, where the trial court ruled for the plan.

The appellate court said that the civil enforcement provisions of ERISA expressly provide relief to secure benefits under the plan rather than damages for a breach of the plan. The court emphasized that the U.S. Supreme Court has stressed that ERISA does not create compensatory or punitive damage remedies where an administrator of a plan fails to provide the benefits due under that plan. The trial court decision was affirmed.

Turner vs. Fallon Community Health Plan Inc., 1st U.S. Circuit Court of Appeals, Oct. 20, 1997 (BI/03/Ju.-$10).

These abstracts were prepared by Mayo H. Stiegler. Copies of these decisions are available by sending a $10 check payable to Mayo H. Stiegler, to Business Insurance, 740 N. Rush St., Chicago, Ill. 60611-2590. Please list the number for each opinion.