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Story has it that the last words of many a Southern daredevil are, “Watch this!” Thank Goodness an Alabama logging truck driver lived to tell about it—although not without being comatose for several weeks and spending more than 30 days in an ICU unit—but in one of the most bizarre cases of the year workers’ compensation benefits were denied to a trucker who, while riding with co-workers in a company-owned vehicle at a remote work site, convinced his work mates to stop and try to capture a rattlesnake, whom they saw on the deserted highway, rather than just run over it. Finding that the snakebite occurred during the course of the driver’s employment, but did not arise from that employment, the appellate court discounted the truck driver’s argument that the attempt to capture the snake was at least tangentially connected to the employment. The court agreed that poisonous snakes might have been considered a hazard within the logging industry, but then added that the hazard could have been dealt with by killing—rather than capturing—the snake. The court concluded that the risk of being bitten was personal, that the connection with the workplace was too remote to support an award.
See generally Larson's Workers' Compensation Law, §§ 4.02, 29.01.
Affirming the bizarre reasoning of the state’s Workers’ Compensation Commission, in July the Court of Appeals of Virginia, in a divided opinion, affirmed a denial of benefits to a restaurant host/waiter who injured his esophagus while attempting to swallow a bite of quesadilla that he was tasting in order to be able to make recommendations to the restaurant’s patrons later in his shift. Agreeing that the injury occurred in the course of the waiter’s employment, but finding that it did not result from an actual risk of the employment, the appellate court stressed that Virginia uses the actual risk doctrine, which the court said excludes an injury that comes from a hazard to which the employee would have been equally exposed apart from the employment. It did not matter, said the court, that the waiter ate the quesadilla to be a better waiter; that only established the injury occurred during the course of the employment. The commission was right to conclude the injury did not arise out of an actual risk of the employment. The quesadilla was not a hazard or danger, much less one peculiar to the restaurant, stated the appellate court. Most courts would say that instead of describing the “actual risk” doctrine, the Virginia court here utilized the standards of the “increased risk” doctrine.
See Bernard v. Carlson Cos., 2012 Va. App. LEXIS 236 (July 17, 2012).
See generally Larson's Workers' Compensation Law, § 3.04.
CASE #5: Benefits Awarded for Salad Bar Injury That Proved Fatal (Pennsylvania)
In August, a Pennsylvania appellate court affirmed an award of death benefits to the widow of a professor who died, apparently from a post-surgical infection associated with the treatment of a broken arm and shoulder that had been sustained in a fall at the salad bar of an off-campus restaurant. The professor had traveled to the restaurant to meet with a doctoral student. The employer contended the fall, and resulting death, did not arise out of and in the course of the employment, but the appellate court disagreed. The court acknowledged that injuries sustained during off-premises lunches were, indeed, ordinarily excluded from workers’ compensation coverage. Here, however, the student and professor met for what was anticipated to be a three-hour meeting over lunch. The two discussed the student’s upcoming defense of his dissertation for more than an hour when they decided to go to the restaurant’s salad bar to begin their lunch. While at the salad bar, the professor fell. The court concluded that there was sufficient evidence to support the Board’s finding that the professor was about the business of the employer at the time of the fall.
See Pennsylvania State Univ. v. Workers’ Comp. Appeal Bd. (Rabin), 2012 Pa. Commw. LEXIS 245 (Aug. 15, 2012).
See generally Larson's Workers' Compensation Law, § 21.02.
CASE #6: Truck Driver Proves Post Traumatic Stress Disorder as a Result of Suicidal Third Party’s Erratic Driving (Pennsylvania)
A Pennsylvania truck driver, who sustained minor physical injuries in a bizarre vehicular accident that appeared to have been purposely caused by a suicidal driver, nevertheless successfully established a “physical/mental” claim, held a Pennsylvania appellate court in early December. The truck driver testified that the other driver appeared to veer purposefully into the path of his truck in spite of the truck driver’s efforts to avoid him, that at the point of impact, the driver of the oncoming vehicle was pressing himself toward the windshield of his car and looking at the truck driver, and that following the impact, the truck and its trailer went down an embankment, damaging the tractor and destroying the trailer. The court agreed that the accident was a sufficient triggering physical event to establish the claim. Accordingly, the truck driver was not required to show “abnormal working conditions,” as would have been required for a “mental/mental” claim, indicated the court.
See New Enterprise Stone & Lime Co., Inc. v. Workers’ Comp. Appeal Bd., 2012 Pa. Commw. LEXIS 328 (Dec. 6, 2012).
See generally Larson's Workers' Compensation Law, § 56.03.
A North Carolina appellate court recently affirmed a decision by the state’s Industrial Commission that awarded extensive workers’ compensation benefits to an office manager who fell some 25 to 30 feet to a hard surface while trying “to ride” the railing of an escalator following a “festive” gathering for dinner and drinks associated with the employer’s annual sales meeting. The manager worked in Texas and had traveled to Charlotte, NC to attend the four-day meeting, during which various workshops and business meetings were scheduled. The employer had provided alcoholic drinks before dinner, had served wine during the dinner, and paid for drinks in the bar following dinner. At the time of the accident, a group of employees, including the office manager, had begun the return walk to the hotel in which they were staying. The manager climbed onto the escalator railing and attempted to ride it down to the next floor, but fell and sustained serious injuries. A blood alcohol test at the hospital revealed that her blood alcohol level was “sufficient to cause a lack of inhibitory control that contributed to the accident.” The employer contended the injury was the result of a deviation from the employment and/or that the injury did not arise out of and in the course of the employment, but the appellate court, following earlier precedent, held that the claim fell within the "well-established" rule set “that a traveling employee will be compensated under the Workers' Compensation Act for injuries received while returning to his [or her] hotel….”
See Evans v. Hendrick Automotive Group, 2012 N.C. App. LEXIS 1469 (Dec. 31, 2012).
See generally Larson's Workers' Compensation Law, § 25.02.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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