Longform

MISCUE 911

Page 4 of 5

But so far, the huge firm is winning its fight in Maricopa County Superior Court to avoid legal responsibility for what happened after Sarah's collapse.

Usually in disputed workers' compensation cases, a boss will contend an employee's injury didn't stem from the job. In the case of Sarah Dugan, however, American Express has insisted Sarah is covered. If the courts finally conclude Sarah is entitled to workers' comp, the Dugans would be barred by law from suing American Express.

That's because in exchange for their right to compensation for on-job injuries, workers in the early 1900s gave up their right to sue their employers. With certain exceptions, employers still enjoy that immunity.

The difference between workers' comp benefits and what a jury might award the Dugans after a trial could be millions of dollars.

American Express' strategy has been chillingly effective. The company recently convinced Superior Court Judge Michael Wilkinson that Sarah is eligible for workers' comp benefits, thus invalidating the family's lawsuit against them.

Judge Wilkinson ruled in American Express' favor despite an Arizona law that excludes heart-related injuries from workers' comp coverage unless "some injury, stress or exertion related to the employment was a substantial contributing cause. . . ."

The company has produced no evidence to prove Sarah Dugan's collapse was caused by her job, and her cardiologist, Dr. Jerome Robinson, signed an affidavit that concluded: "Sarah's job responsibilities and work environment played absolutely no role in the heart event that occurred on November 2, 1990. . . ."

But it has boded poorly for the Dugans that the nation's courts have expanded the circumstances under which employees may collect workers' comp. One example: In Mississippi a few years ago, the courts ruled an employee's heart attack following the use of an electric screwdriver was compensable.

Last April 16, Judge Wilkinson ruled that workers' comp is the Dugans' sole legal remedy. The judge wrote that Sarah's heart failure and subsequent brain damage "arose out of" her employment and entitle her only to workers' comp benefits--a maximum of two-thirds of her salary.

In doing so, the judge dismissed American Express from the Dugans' lawsuit, which was filed by their attorneys, Kevin Schwartz and Kevin Garrison. Fujitsu, which blocked 911 at the request of American Express, remains a key defendant.

Unless an Arizona appellate court overrules Judge Wilkinson, American Express will be off the hook.

"It was a very, very close question, one that was right down the line," the judge tells New Times. "This is an issue that the Court of Appeals and the Arizona Supreme Court hasn't specifically considered. I would hope--very, very much--that they do."
The ruling deeply frustrates Joe Dugan and his family.
"It sickened me and our kids to hear this 'moved in a profound way' crap from their lawyer," Joe Dugan says, referring to the courtroom comments of American Express attorney David Bodney. "We're looking for truth and justice, but I don't know if we're gonna get it."
@rule:
@body:Within hours after Sarah Dugan collapsed on November 2, 1990, an official from the State of Arizona's Occupational Safety and Health Administration called American Express. OSHA's Linda Masci said she had gotten two calls from company employees that day complaining about the emergency-response system.

Masci told American Express the complaint wasn't an OSHA violation, but she suggested company employees should be certain of what to do in an emergency. With that in mind, the firm began a process of corporate butt-covering.

American Express assigned guards to check the phones in WROC II and, according to an internal memo, to "place emergency stickers on any telephone that didn't have one on it already." That's when the company determined 142 phones lacked such stickers. Within a few days, American Express placed 1414 stickers on most of those phones.

Then, on November 6, American Express security manager Ed Kurowski sent a memo to his boss, Don Parrish. The memo said that "all parties, after careful study, found the policies/procedures [of the 911 blockage] to be correct and effective."

Still, Kurowski ultimately recommended that American Express "remove block on 911 at WROC I and WROC II. Risk: If block is removed, security may not be notified and correct information on location not received by responding emergency unit."

Ex-American Express employee Sandra Cordes says company supervisors told WROC II employees soon after the incident "that the phone system had been changed so that when you called 911, it would go through to security and to 911 at the same time. So you would have both on the phone. . . ."

To many employees at WROC II, the corporate reaction was an unspoken admission that shutting down 911 had been a terrible mistake.

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Paul Rubin
Contact: Paul Rubin