Opinion
BOARD No. 00350393
Filed: December 28, 1998
REVIEWING BOARD DECISION
(Judges Smith, Wilson, and McCarthy)
APPEARANCES
Donald L. Gibson, Esq., for the employee.
A. William Kennedy, Esq. for the insurer at hearing.
Justin F.X. Kennedy, Esq. for the insurer on brief.
David S. MacLeod, Esq. and Brian Heermance, Esq. for the employer.
The insurer appeals from a decision awarding §§ 28 and 31 benefits for the employee's death. The employee's estranged husband attacked her at work; she died at the hospital shortly thereafter. The judge found the insurer and employer liable based on the "special relationships" theory that employers have a duty to provide security for their employees and protect them from the wrongful activities of third parties. We reject the application of that negligence doctrine to workers' compensation cases. Instead, we apply the traditional workers' compensation requirement that the assault must arise out of employment. Because the employee's death arose out of a personal dispute unconnected with work, we reverse the decision and vacate the award of compensation.
Linda McLean-Jenner, the 42-year-old mother of six children, worked as a licensed practical nurse (LPN) at Beverly Manor of Plymouth Nursing Home. On January 8, 1993, McLean-Jenner's estranged husband, the father of her youngest child, walked into the nursing home, sought her out and, in the presence of several other employees, stabbed her numerous times. She was rushed to the hospital, where she died within an hour. McLean-Jenner had taken out a restraining order against her husband, and had told several other employees that she feared he would kill her. (Dec. 5-8.) Her co-workers did not report this information to the management. (Dec. 13.) The nursing home had no security system, or even a receptionist, in place on McLean-Jenner's shift. (Dec. 10-11.)
The employee's dependents filed a claim for benefits under §§ 31, 13 and 36A, as well as a claim for double compensation under § 28. Following a denial at conference, a hearing de novo was held, with testimony from fourteen witnesses spanning four days. (Dec. 1-2.) Much of the testimony dealt with the security system or lack thereof, in place at the nursing home, and the foreseeability of the attack by employees and managers of the nursing home.
In his decision, the judge did not find that the employer had actual acknowledge that McLean-Jenner individually was at specific risk of domestic violence. Instead, to impose workers' compensation liability, the judge relied upon a general duty of care. The judge acknowledged the general rule that an assault does not arise out of employment when the source of death or injury is a dispute that is imported into the employment from an employee's domestic or private life and is not exacerbated by the employment. (Dec. 8.) He nevertheless found that the Massachusetts courts have been chipping away at this concept through the developing theory of "special relationships." The judge understood the "special relationships" theory to impose on employers an affirmative duty to provide security for their employees and thus protect them from the wrongful acts of third persons. (Dec. 8-9.) The judge found that this employer had a "special relationship" with its employees because of the inherent institutional need for security at nursing homes. (Dec. 13-14.) He found that the employer failed to provide reasonable and adequate security for its staff and facilities, (Dec. 10), based in part on security measures it instituted after the murder. (Dec. 14-15.)
The judge concluded that McLean-Jenner's murder arose out of and in the course of her employment, and awarded § 31 dependency benefits. In addition, the judge found that the employer's "disregard of fundamental security and safety precautions and its special relationship with employee/patients" warranted an award of double compensation under § 28. (Dec. 15.)
On appeal, the insurer argues that the theory of "special relationships" does not address the question of whether an injury arises out of employment, and is only applicable to civil cases where negligence is a consideration. It contends that the employee's death arose out of her marital problems and had nothing to do with her employment. The claimants respond that most workplace violence against women is committed by their friends and lovers. They urge the reviewing board to reject the general rule regarding workplace assaults and recognize that employers have a special duty to their female workers to take reasonable steps to protect them from attacks arising out of their personal life. They argue that, because the employer failed to take these steps, it breached its duty of care to the employee, depriving her of her ability to flee, to avoid contact with her attacker, or to summon the police. Thus, the claimants maintain that the employer's failure to act allowed the murder to occur, making the employee's death "arise out of employment." We reject the application of the "special relationships" theory and reverse the award of compensation based upon it.
The "special relationships" theory is a negligence doctrine and does not apply to workers' compensation cases. See 1 A. Larson, Worker's Compensation Law, § 11.21(a) (1998) ("When the animosity or dispute that culminates in an assault is imported into the employment from claimant's domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employmentunder any test.") (Emphasis supplied). Acceptance of the employee's argument would make employers liable for murders and assaults occurring on the job, arising out of domestic disputes completely unrelated to the nature and conditions of the employment. This we decline to do.
Most of the cases cited by the employee deal with civil claims alleging negligence in non-employment settings. Relying onFoley v. Boston Housing Authority, 407 Mass. 640 (1990), the employee argues that the court, in the appropriate circumstances, will find a special relationship between an employer and an employee, giving rise to a duty on the part of an employer to protect its employees from the criminal acts of third parties. However, that case is inapposite. There, the issue of whether the assault against the employee arose out of and in the course of his employment was not disputed; the employee received workers' compensation benefits for an assault by a co-employee over sick leave credits. The issue was whether the employee's dependents were entitled to benefits at common law for loss of consortium because the employer negligently failed to provide proper security and negligently failed to train, discipline or otherwise supervise its employees. (The claim was brought before St. 1985, c. 572, § 35 amended G.L.c. 152, § 24, abolishing the rights of spouses and children of employees to maintain consortium claims. See Foley, supra at 641, n. 3.) The court found that no special relationship existed that would give rise to a duty to protect, because the attack on the employee was not reasonably foreseeable.
The purpose of the workers' compensation act is to treat the cost of personal injuries incidental to . . . employment as a part of the cost of business. Madden's Case, 222 Mass. 487, 494-495 (1916). The act is not meant as a balm for all of society's ills or to protect against all risks of life, including the scourge of domestic violence. See Zerofski's Case, 385 Mass. 590 (1982).
An assault that occurs in the course of employment, with nothing more, is not within the act. Massachusetts courts have consistently held that, for an assault to be compensable, it must have its "origin in the nature and conditions of the employment, so that the employment [bears] to it the relation of cause to effect." Dillon's Case, 324 Mass. 102, 107 (1949). "[I]n compensation cases, fault is not a determining factor . . . the question is whether the injury occurred in the line of consequences resulting from the circumstances and conditions of the employment, and not who was to blame for it." Id. at 106; see also Tripp's Case, 355 Mass. 515, 517-18 (1969). Although fault is an issue under § 28, in order to have liability for serious and willful misconduct, there must first be a compensable injury as defined by § 26.
Section 28 provides in pertinent part: "If the employee is injured by reason of the serious and wilful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled." G.L.c. 152, § 28, as amended by St. 1986, c. 599, § 45 (emphasis supplied).
Section 26 provides in pertinent part: "If an employee. . . receives a personal injury arising out of and in the course of his employment . . ., he shall be paid compensation by the insurer or self-insurer, as hereinafter provided;. . . . G.L. c. 152, § 26, as amended by St. 1991, c. 398, § 40 (emphasis supplied).
Section 31 provides in pertinent part: "If deathresults from the injury, the insurer shall pay the following dependents of the employee . . . compensation. . . ." G.L. 152 § 31, as amended by St. 1990, c. 177, § 347 (emphasis supplied).
An injury or death resulting from an assault will be compensable only if the "employment brought the employee in contact with the risk" which injured her. Baran's Case, 336 Mass. 342, 345 (1957). The employee's nursing job did not do so.
The security precautions taken by the employer after the employee's murder have no bearing on whether the employee's death arose out of her employment. The judge erred in relying on them to find causation. See Ladd v. New York, New Hampshire and Hartford Railroad, 335 Mass. 117, 120 (1956) (post-injury actions generally are not an admission that such actions should have been taken prior to the injury); 19 Hughes Mass. Practice, Evidence § 294 (1961) (repair evidence generally deemed irrelevant and inadmissible).
The law does not permit an award of compensation for a death resulting from an injury arising out of a domestic dispute unrelated to work. G.L.c. 152, §§ 26, 28 and 31. Therefore, we reverse the decision and vacate the award of compensation. G.L.c. 152, § 11C.
So ordered.
________________________ Suzanne E. K. Smith Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
FILED: December 28, 1998