Wal-Mart Associates, Inc., New Hampshire Insurance Company, and York Risk Services Group, Appellants,
v.
Patricia S. Kolb, Appellee.
Decision No. 237
AWCAC Appeal No. 16-015
AWCB Decision No. 16-0099
AWCB No. 201419711
Alaska Workers’ Compensation Appeals Commission
August 1, 2017
Final
decision on appeal from Alaska Workers' Compensation
Board Final Decision and Order No. 16-0099, issued at
Anchorage, Alaska, on October 28, 2016, by southcentral panel
members Janel Wright, Chair, Rick Traini, Member for Labor,
and Amy Steele, Member for Industry.
Commission
proceedings: Appeal filed November 10, 2016; briefing
completed April 5, 2017; oral argument held May 24, 2017.
Vicki
A. Paddock, Russell Wagg Meshke & Budzinski, PC, for
appellants, Wal-Mart Associates, Inc., New Hampshire
Insurance Company, and York Risk Services Group
Joseph
A. Kalamarides, Kalamarides & Lambert, for appellee,
Patricia S. Kolb.
James
N. Rhodes, S. T. Hagedorn, Deirdre D. Ford, Chair.
FINAL DECISION
Deirdre D. Ford, Chair
1.
Introduction.
Patricia
S. Kolb (Ms. Kolb) was injured on December 5, 2014, at a
Wal-Mart store. A dispute arose over whether she was injured
in the course and scope of employment with Wal-Mart
Associates, Inc. (Wal-Mart). On April 27, 2016, Ms.
Kolb's claim was heard by the Alaska Workers'
Compensation Board (Board). The Board initially issued an
Interlocutory Decision and Order
1 raising a question of
whether a Second Independent Medical Examination (SIME)
should be ordered to address any gaps in the medical evidence
and whether Wal-Mart's actions towards Ms. Kolb following
the injury exacerbated the fracture. The Board acknowledged
there was a split within the panel over the issue of the
credibility of the witnesses.
The
Board received additional briefing from the parties, closed
the record on October 17, 2016, and issued its Final Decision
and Order on October 28, 2016.
2 Based in part on the additional
briefing, the Board found that no SIME was needed and that
Ms. Kolb had been injured within the course and scope of her
employment. The additional briefing assisted the Board in
reaching a consensus that also found Ms. Kolb to be more
credible than Wal-Mart's witness. Wal-Mart appealed to
the Alaska Workers' Compensation Appeals Commission
(Commission) and filed a Motion for Stay. A stay was granted
on December 21, 2016, as to past medical and indemnity
benefits but denied as to future medical
benefits.
3 Oral argument on the issues of the appeal
was heard on May 24, 2017. The Commission now finds that Ms.
Kolb was injured within the course and scope of her
employment and affirms the decision of the Board.
2.
Factual background and proceedings.
[4]
Ms.
Kolb has worked for Wal-Mart since July 2013. She started as
a stocker in health and beauty aids and after several months
began work as a cashier at Wal-Mart's Eagle River,
Alaska, store.
5
Ms.
Kolb attended orientation on July 26, 2013, and at that time
was made aware of Wal-Mart's Associate Purchases Policy
(OP-23).
6 This policy applies to all of
Wal-Mart's employees and provides in part:
Associates may make purchases only during meal periods,
breaks, or off-duty hours. Merchandise cannot be sold to
anyone unless the facility is open for business . . . . Any
violation of this policy is a serious infraction. The company
will investigate any deviation from this policy. If the
company determines an associate has violated this policy,
s/he may be subject to discipline, up to and including
termination.7
In
January 2014, when Ms. Kolb became a cashier, the policy was
again presented to her during cashier training.
[8] Ms. Kolb
testified she saw supervisors and other employees shop when
she thought they were on the clock. She thought most of
Wal-Mart's staff shopped on the clock and she was not
aware of anyone who was ever disciplined for shopping while
on the clock.
9
On
December 4, 2014, Ms. Kolb shopped and made purchases during
Wal-Mart's "25% discount days," which is a
two-day period when employees who worked on Thanksgiving may
shop and receive a larger than normal discount. Discount
shopping days last 48 hours. Ms. Kolb forgot to purchase cat
food and kitty litter on December 4, 2014.
[10]
On
December 5, 2014, Ms. Kolb worked an afternoon shift
scheduled to end at 5:00 p.m. Her relief cashier arrived
"a bit before 5:00 p.m." and Ms. Kolb closed out
her register at 4:47 p.m.
11 Wal-Mart gives demerits to
employees who clock out prior to their shift's
end.
12 Ms. Kolb wanted to take advantage of her
25% discount shopping and so, before clocking out, she picked
up a shopping cart, which she planned to leave near the
restrooms which are close to the employee locker room and
time clocks.
13 She then planned to clock out, get her
belongings from her locker, and proceed to a register to
purchase her items.
14
On her
way to clock out, Ms. Kolb went to the store's "Pet
Zone" to pick up cat food and kitty
litter.
15 The kitty litter, on a shelf 70 inches
high (above her head), was heavy, and the kitty litter fell
off the shelf. When Ms. Kolb tried to stop it with her knee
and leg from crashing and spilling all over the floor, the
kitty litter hit her, breaking her leg. Ms. Kolb fell, hit
her head, and was unable to walk.
16
Wal-Mart's
assistant managers Chip Dawdy and "J.J." were
notified Ms. Kolb was injured. Mr. Dawdy took Ms. Kolb's
and others' statements about the incident.
[17] J.J. then
transported Ms. Kolb to the back of the store on a cart so
she could get her purse and coat. Instead of calling
"911" to obtain an ambulance to take her to the
hospital, Mr. Dawdy and J.J. decided J.J. should take Ms.
Kolb to an emergency room.
18 However, before taking her to
the emergency room, J.J. took Ms. Kolb to Workplace Safe for
a drug test.
19 He expected her to walk into Workplace
Safe. However, due to her severe pain, she was unable to
stand and bear weight and a male stranger picked her up and
carried her into Workplace Safe.
20
Upon
completion of the drug test, but before taking Ms. Kolb to
Providence Hospital Emergency Room, J.J. took Ms. Kolb to
Tesoro so J.J. could get gas and something to
eat.
21 At this time, Ms. Kolb was under the
supervision of the Wal-Mart employees Mr. Dawdy and
J.J.
22 Ms. Kolb did not clock out on December
5, 2014, because she was injured and unable to finish
clocking out.
23
Trudy
Jordan is Wal-Mart's personnel coordinator.
[24] She testified
she assists with hiring, maintaining employees' personnel
files, and "keeping personnel on track." If
employees are unexpectedly unable to clock out at their
shift's end, Ms. Jordan is responsible for contacting
employees to inquire and determine their quitting time. The
protocol is for Ms. Jordan to complete an "Hours
Adjustment / Prize or Award Form." Ms. Jordan first
signs the form, she then has a salaried member of management
sign the form, and then the form is presented to the employee
for signature.
25
On
December 8, 2014, since Ms. Kolb had not clocked out on
December 5, 2014, Ms. Jordan contacted her because she
"needed to know what time [Ms. Kolb] left." After
speaking to Ms. Kolb, Ms. Jordan completed an Hours
Adjustment Form and recorded Ms. Kolb's December 5, 2014,
"Clock Out" time as 16:47.
26 The reason for the
adjustment was: "Didn't clock out." Ms. Jordan
signed the form on December 8, 2014; Mr. Dawdy signed it on
December 10, 2014. Ms. Kolb did not initial the form, but she
did sign it on July 10, 2015. The form states:
By placing my initials here and signing below, I acknowledge
that I have reviewed all information above and that
everything on this form is accurate to the best of my
knowledge. I also acknowledge that I have been informed and
agree to this hours adjustment, prize or award . . . .
27
Wal-Mart's
Eagle River, Alaska, store has time clocks in three
locations. There are two time clocks at the back of the store
near employee lockers and restrooms, and at two
"hubs."
28 One hub is at Wal-Mart's customer
service center near the cash registers, and close to shopping
cart parking.
29 Employees and management usually clock
out at the time clock nearest where they place their personal
items for storage during work hours. Ms. Jordan stated she,
like Ms. Kolb, goes to the back of the store to clock out
because that is where her belongings are stored in her
locker.
30
According
to Ms. Jordan, Wal-Mart's employees are permitted neither
to shop nor to make purchases while on the clock. She further...
