What do a crockpot and a paycheck have in common? In this case they were two items that brought the claimant into her employer, Boscovs, on her day off. And this being my case on behalf of the employer, the fact that claimant used her employee discount to purchase a crockpot warms my heart. That said, my heart was not quite warm enough to suggest that Boscovs accept this claim.
So we went to a Legal Hearing on July 10th. I argued that this injury, a hip fracture sustained by an injured worker approaching 80 years of age, was outside the course and scope of employment and as such, the DCD Petition should be dismissed. Factors in my favor were:
· Claimant was not on the schedule that day and was not there to perform work activity.
· Claimant used her employee discount to purchase a crockpot, thus a purely personal errand.
· While claimant also retrieved her paycheck while in the store, she was scheduled to work the next day and could have easily obtained it then.
· There is case law that says I am right.
· I could probably beat the claimant in dueling crockpots.
Now the true mark of a gifted advocate is the ability to compel feelings of nagging doubt in my argument and despair in my soul even when common sense tells me I’ve got this covered. Like Santa Claus says in Miracle on 34th Street….. it is the belief in the nearly impossible even when your common sense tells you no. And that gift belongs to my opponent in this case, Walt Schmittinger. And I would expect no less from Walt, given his stellar lineage.
Walt advanced several arguments on behalf of the injured worker, one of which was that the date of the injury was a Friday, the Claimant was a senior citizen on a fixed income, and the need to obtain that compensation on the last banking day of the week, along with the fact of doing work for remuneration itself is such an intrinsic part of the contract of hire, that accepting a paycheck should be deemed in the course and scope of employment. And while that argument did not carry the day, it was advanced with such passion and in terms so articulate that I was worried when I left Slower Lower.
The case is Charlotte Hudson v. Boscovs, IAB# 1395398 (7/17/13) (ORDER). The DCD Petition was dismissed.
I also have to give a shout out to Dennis Menton who at the last conceivable moment before I got into my car to head to the Hearing sent me the closest thing to a case on point (actually pretty much on point). That case was Brittingham v. Draper King Cole, a 1992 DE Superior Court case, [enhanced version available to lexis.com subscribers], holding that picking up a paycheck (or workers comp check) is not in the course and scope. And by way of eerie coincidence, Walt’s father Jay represented Mr. Brittingham.
This day was special not because of any of the above. The trip downstate gave me an opportunity to visit a feral cat colony that exists on Route 1 in Milford adjacent to the Valero station. At any given time, a veritable hodge podge of kittens make their residence there and I have developed a tradition of bringing them a 10 lb. bag of dry cat food. Today’s kitties were a tad skittish but a couple of them did make their way out when I dumped the food into the box lids that are always at the ready to serve as food trays. Thus, the picture above.
Walt, if you send me Charlotte’s address I will be happy to send her a copy of Crockery Cookery as a consolation prize.
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