Teague enlisted his step-grandson, attorney Rick Kilfoy, to help him appeal Wal-Mart's denial at the state Industrial Commission. Wal-Mart retained Todd Lund­mark, a workers' compensation specialist who had co-authored a handbook on the topic.

The burden of proof before the judge was Teague's.

Under the law, he was forced to undergo physical exams by two doctors of Wal-Mart's choosing, which he did in January 2007.

Linda Kilfoy, with a photo of her mother, Cecil, and stepfather, Herm Teague.
Morgan Bellinger
Linda Kilfoy, with a photo of her mother, Cecil, and stepfather, Herm Teague.
Herm Teague, with a young friend, a few years before the Wal-Mart incident.
Herm Teague, with a young friend, a few years before the Wal-Mart incident.

Location Info

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Wal-Mart

4617 E. Bell Road
Phoenix, AZ 85032

Category: Retail

Region: North Phoenix

One of those physicians, Ernie Riffer, concluded that Teague's fainting spell and subsequent head injury "in no way related to his employment. [It] was related to his coughing and choking primarily. It was compounded by his underlying cardiac condition."

The second Wal-Mart doctor agreed with his colleague.

Teague didn't have the money to bring in experts to testify at the Industrial Commission, Rick Kilfoy says. But the lawyer still was confident the old guy had a fighting chance.

"If he had been on a couch at home when he fainted instead of standing up on a hard surface at work, he wouldn't have hurt himself when he fell," Kilfoy says. "He was a few feet from where he typically greeted people, and he took a second to get a soda. He wasn't on a break, and there was nothing in writing at Wal-Mart that kept him from grabbing a Coke."

Herm Teague was the first witness to testify at the Industrial Commission hearing.

It humiliated Teague even to be there, his stepdaughter says, and he kept his answers terse, not having much more to add than he'd sipped from his soda, fainted, and came to on the floor at Wal-Mart in a pool of blood.

Wal-Mart assistant manager Janice Kursch­ner testified that she had assisted Teague on the floor after he'd fainted. She said it was "unusual" for someone to drink a soda while on duty.

"They're not to have anything on the floor except water," Kurschner testified.

So, Wal-Mart attorney Lundmark asked her, it wasn't okay for Teague to consume a soda near the machine?

"Normally, no," she said, "because we need somebody on the door at all times. So he had technically walked away from the station."

Rick Kilfoy asked whether "company employees [are] expressly precluded from purchasing and consuming sodas from that soda machine."

"No, sir," Kurschner replied. "They can do it on their breaks and lunch."

Kilfoy told the judge that Teague's employment with Wal-Mart "contributed to, if not caused, his injuries."

In his closing remarks, attorney Lund­mark focused on a 1970 Arizona case in which a woman working as a stock clerk for a school district injured her lower back while arising from a toilet at work.

Going to the bathroom, Lundmark argued, even at work, is considered a "personal comfort activity" by the courts as compared with a more-typical work-related injury, such as blowing out a knee while lifting a large object.

It turned out that the stock clerk, whose name was Sacks, had pre-existing back problems, akin to how Herm Teague had heart problems before fainting on the job.

In the Sacks case, an appellate court upheld an administrative law judge's ruling that her back injury had happened "in the course" of her employment with the school, but had not arisen "out of" her employment.

Under Arizona law, that's a huge distinction.

The court in that case said, "The mere fact that the accident occurred on the premises of the employer during working hours does not make it compensable."

But in March 2007, Judge Moore ruled against Wal-Mart, contrasting the Sacks case with the case at hand.

"Here," the judge wrote, "the employer contributed to the personal comfort of customers and employees by placing the vending machine on the premises . . . Employees had not been expressly prohibited from purchasing beverages from the soda-dispensing machine and had not been expressly prohibited from consuming such beverages at times during their work shift that were other than break times."

Even so, the Teague case was far from resolved.


Rather than take their small defeat and move on, Wal-Mart commissioned its attorney to file a special action with the Arizona Court of Appeals. That put any workers' comp payments to Herm Teague on hold.

What really continued to eat at Teague were the mounting medical bills that Medicare was refusing to pay because of the still-pending comp case.

"He had doctors turning him away because they weren't sure if they'd ever get paid," Linda Kilfoy says. "Even the hospice, when he was near the end, called us and asked what was going on with the payments. I had to call the Wal-Mart insurance people and their lawyers to see what could be done. They said they didn't know who I was or what I was talking about."

Rick Kilfoy says he noticed a distinct deterioration in Teague's demeanor and physical appearance as time wore on.

"Even though we had won at the administrative-court level, Herman was very, very depressed and worried at the whole thing. Without being cliché about it, I think the ongoing battle and the mess with Medicare and so on was breaking his heart."

Teague spent his last months going back and forth between Arizona and Wyoming, where he still had dear friends.

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28 comments
JST Books
JST Books

Injuries are very dangerous. This can spoil anybody's life. So if necessary one should claim for compensation against offender. Making a claim for broken leg injury compensation should be a straightforward process.I think, A solicitor will also be able to represent you in court should litigation be required to resolve your claim.Broken Leg Injury Compensation Claim

Christie
Christie

Are you kidding me??? Wal-mart should not get any credit for "Just" hiring that man. I have been getting the run a round for 4 almost 5 years now from Wal-Mart. I was told at the start if I made a claim they would not get their bonus...What the heck??? After 4 years I lost my left leg. This could have been avoided if I had received treatment earlier. But, no they just kept messing with me. I still cannot work because of all the pain that I am in and they depression and anxiety. Wal-Mart should be closed!!!!!

Stuart Mead
Stuart Mead

I have had an on going workers comp case for the past 13 YEARS with no end in sight. I have been waiting for over 17 MONTHS currently just to see my Agreed Medical Examiner why? who knows but the lawyer for the jerks which is the fifth set of atty's for them sence this started. They have changed the name of their so called insurence carrier 5 times and I'm on my 25th Caseworker. My atty has tried numerous time to reach a settlement with them so I am able to seek the medical attention that I need but wally world would rather spend It's money sponcering a race car with a rookie driver that has barely made it around the track five laps without crashing totally demolishing the car. For what it costs for two sets of tires they could settle my case.After injuring my back I returned to work and was put as a door greeter on the front door exit because they didn't want some one sitting on a stool at the front I was sent to the garden dept. and it was about a week later they asked me to assemble wheelborrows while checking reciepts as people walked out. Then I was written up for moving a rolling ladder 1 foot to get a basket off the top shelf for a customer and was told that "I was the reason the store didn't make a profit that month because of my doctor bills". My reply to the assistant store manager who was writing me up was that "wouldn't it have been cheaper to buy a forklift than pay for my injury and potentially others that could have been avoided"? There was no responce from him. The store now has a forklift and it only took them 6 YEARS AFTER my injury for them to finally wake up.

David
David

This man had surgery in late Feb, and went back to work on March 6th. The doctors were wrong to say he was fit to go back to work. An 86 year old man with a history of heart conditions isn't going to be productive in a fast pace environment like Wal-Mart. His health was poor before he got hired, Wal-Mart should have offered to split his ER tab, but then would have had to let him go.

Tomtir
Tomtir

Your boycott is working so great that when I drive by I can't see a parking place. I'm no big walmart fan but what about giving them credit for hiring an 86 year old man with serious heart problems. What effect does all this have on anyone thing about hiring someone in their 80's. Then he takes off for heart operations and they still welcome him back.All you gripers: If you employ any one at all, would you have hired this man to work for you? Then he falls on your front step!! If Walmart is so unreasonable, how come the Federal appeal court voted unanimously in Walmart's favor. The man had insurance but he got greedy. He wanted walmart to pay him a salary (self-insured workman's comp) for time lost when he went on a break. Workman's comp must be work caused.

Tom
Tom

On the one side, Walmart is obviously contesting nearly every claim, even legitimate claims. However, the plaintiff's attorney committed borderline malpractice by not obtaining a plaintiff's doctor examination. Sounds like he really half -ssed the work. You get what you pay for, pro bono means no work. That attorney did a great disservice to AZ compensation laws by setting this precedent in this case.

michael
michael

Stories like Herman's are commomplace with wal-mart. A few years ago there were over 10,000 lawsuits pending against the company. wal-mart has its troves of lawyers, and they appeal every case over and over until the victims are either broke or dead. It is astounding that wal-mart has been able to get away with its unscrupulous business practices all these years. There is a high cost to wal-mart's low prices, and Herman's story is just one of many.

Fenny
Fenny

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Knarly cat
Knarly cat

The whole soda thing is not important really. It's terrible that the medical bills were piling up and there was nothing he could do about it. At the same time, I could see how a company would not want to pay for this. If the injury is directly work related..then yea. If a guy is really old and passes out because of failing health.. then that is his own responsibilty with his own insurance. Work Comp. is reserved for injuries solely caused by the work itself..not just anything on work property. Why the fuck is it $3,500 to sew up a guy's head? Why does Medicare have to wait to see if the work comp pans out in order to start making payments?

God
God

Shut up already you whiny cunts!

Jim Bailey
Jim Bailey

Why do people shop at Wal-mart? Wyatt Earp asked Doc Holiday why he was playing a rigged faro game one day to which Doc replied "Hell I know it's crooked Wyatt but it's the only game in town". That's what Wal-mart has become. Karma may catch them someday.

THE REPEATER
THE REPEATER

Common sense is the only thing not found at Walmart - and if it was, it would have been made in China. I would NEVER allow a family member to work there. It is slave labor (read "Nickle and Dimed in America").

jm
jm

Common sense is the only thing not found at Walmart - and if it was, it would have been made in China. I would NEVER allow a family member to work there. It is slave labor (read "Nickle and Dimed in America").

Bette
Bette

I never liked that store. I won't step in there again.

Chris Born
Chris Born

Wal-Mart is just like every other major corporation in the US... it's easier to stone wall in the courts than to settle out of them. What needs to be done is to change our form of laws. In this case, if the injury is an on-the-job injury, the State should pay the benefits and let the company sue the State to prove that the injury is not work-related. Things would get settle a lot faster... and the injured would be back on the job a lot faster. But then again, I learned a long time ago to "vote" with my wallet!

Zack Aydelotte
Zack Aydelotte

Sorry, obviously I did not mean to post that 3 times...although that may be how many times people need to read it.

Zack Aydelotte
Zack Aydelotte

I continue to be disgusted with corporations. They do not have the conscience of a human being, yet they seem to have the ambition and greed of a human being.

What we have to remember is that corporations ARE run by human beings. PEOPLE make these decisions for these corporations, and those people should be held accountable. We have to stop talking about corporate giants like Wal Mart as though they are another entity, superior to us in not only wealth, but knowledge of what is right and wrong.

It's the same sentiment Herman Teague had expressed-you do what's RIGHT, whether you are an individual, or a company.

These days, we do not put enough pressure on corporations to be morally responsible. It's very easy for us to attack an individual when they are a celebrity, and point out everything that's wrong with them, even though they have no effect on our lives whatsoever.

But it's so hard for people to say anything about corporations, because they sponsor everything. No one wants to lose their job, or opportunity, or their funding.

So we seem to accept this ridiculous notion that these corporations will do what they want with us, as we are just mortal human beings, and they are the immortal corporations.

I say no! Let's remember that PEOPLE make up these corporations, PEOPLE make the decisions. What if Mr. Teague had fallen in a very successful mom and pop store, and mom and pop hired a lawyer to avoid paying him? How would the community look at that store, if they knew that?

When corporations do atrocious things like this in a formal setting, we have to look at it the exact same as if an individual did it in a casual setting. That is how you can tell what is right and what is wrong, in case you forgot.

I'm really proud of New Times running this article. There seems to be so little pressure on corporations, even though I feel they represent the trunk of the tree of our country's problems, while we bicker furiously over the leaves and branches.

No one ever seems to speak out against them. The fact that New Times can and others still don't really bothers me.

fred
fred

In my dad's day I'd seen his plant shut down several times when word got around to others that someone was getting the shaft. They just all walked off the job and set up a picket line... Once while I worked for greyhound we walked off and shut the terminal down because our checks were late.Those were the days!!!

former walmart shopper
former walmart shopper

Did anybody bother looking at the floor where this happened? I used to shop there and can tell you there are large titles with uneven surfaces around the front door and soda machines. I have stumbled on them on at least one occasion. Too bad somebody didn't bring that up.

WON'T SHOP AT WALMART
WON'T SHOP AT WALMART

#1 and #7 hit the nail on the head. Between the government's shoddy practices and the corporate giants, the average person is very much at risk for devastation. This is a sad story about a proud elderly All-American man whose life should never have ended this way. Won't be shopping at Walmart and supporting their inhumane business practices.

Coz
Coz

Fuck Walmart, I will no longer shop there.

MYTME2SHNE
MYTME2SHNE

$20,000 a minute. WOW!! In a case like this it seems as if we have forgotten about ethics, in which alot of companies have just lost track of. Time will tell if Wal-Mart is actually getting away with "MURDER". What goes around comes around, ten fold. We will know sooner or later.

Ann
Ann

This story is sad. This poor elderly man just wanted to work and not waste away into old age, why couldn't Walmart give to him $3000 that was pennies to them to help him out? This makes me want to never shop there again.

MaxPower
MaxPower

Why should Wal-Mart pay for this guy? He doesn't sound 'short of money'.. HE WAS NOT COVERED... HE KNEW THIS!!.. MY IS THE USA BECOMING THE WELFARE COUNTRY!

Steve
Steve

Just another reason not to shop at Walmart the ultimate corporate criminal. This is a company without conscience and a company that thrives by destroying small towns, senior citizens and provides not even subsistence wages to its employees, if you can call them that. Walmart indentured slaves is a better term. Well I know that the millions of consumers seeking garbage products at cheap prices don't give a damn about corporate ethics or responsibility of a business to its employees. I never, never shop at Walmart. Boycott it.

 
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