Justices reject woman's comp claim for tripping in street

CHARLESTON – West Virginia's Supreme Court of Appeals rejected a workers compensation claim from a woman who tripped as she crossed a street on a 15-minute break from her job.

In an unsigned opinion on Nov. 2, the Justices affirmed a decision of the Worker's Compensation Board of Review denying benefits to Jenny Williby.

They ruled that her fall and injury did not occur in the course of her employment or as a result of her employment.

"In crossing the street to pick up her lunch, the appellant was exposed to the same risk as every other member of the public walking on the street that day," they wrote.

They identified Williby as a loan clerk at First Century Bank in Bluefield, with two paid 15-minute breaks per day.

On a break one day in 2004, she crossed Federal Street to Market Manor. She picked up lunch and started back across the street.

She tripped and landed on her right shoulder, tearing her rotator cuff.

She filed a claim. The Workers Compensation Commission found she qualified, and the bank protested to the Office of Judges.

A bank lawyer deposed Williby, who said that she wasn't doing bank business and the bank had no control over what she did on break.

The lawyer asked what caused the fall, and she said it was uneven pavement.

The lawyer said, "The bank doesn't control that Federal Street, does it?"

Williby said, "Not to my knowledge."

The Office of Judges upheld her claim in 2005. In 2007 the Board of Review, under insurance commissioner Jane Cline, rejected it.

Williby petitioned the Justices to restore her benefits, and the Justices wrestled with the case for almost two years before granting an appeal.

They took another year in deciding, but they made it sound like an easy call.

"She was not on her employer's premises, she was not engaged in any work related activity, she was not required or even directed by her employer to cross the street and pick up her lunch during her break," they wrote.

"She testified that employees could go across the street, pick up a pop, a muffin, their dinner, or go to pick up their kids at school during lunch break, as long as they were back in 15 minutes," they wrote.

They wrote that Williby recovered, with some limitations, and returned to work.

Senior deputy attorney general David Stuart represented insurance commissioner Cline. Gregory Prudich of Princeton represented Williby.