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During the past several Januarys, I’ve shared with readers my annual list of bizarre workers’ compensation cases for the prior year. In doing so, I reenact, in part, a tradition that my mentor, Arthur Larson, and I shared prior to his death some years ago. Each January, Arthur and I would meet in Arthur's home on Learned Place, near Duke University's campus and review our respective lists of unusual or bizarre workers' compensation cases reported during the previous 12 months. Often our respective lists would overlap a bit, but he’d always have several with truly quirky fact patterns that I had missed. One thing we always kept in mind: one must always be respectful of the fact that while a case might be bizarre in an academic sense, it was intensely real. It affected real lives and real families. And so, to continue in the spirit of that January ritual, here follows my list (in no particular order) of 10 bizarre workers' compensation cases during 2013. Last year a number of you sent me some additional cases for consideration. I'd love to hear from any of you if you know of others that should have been included in this year’s list. Send them—along with questions or comments—to trob@workcompwriter.com.
CASE #1: Worker’s Injuries Were Caused by His Intoxication, Not the Concrete Slab Upon Which He Fell (Federal)
The Longshore Act provides that no compensation shall be payable if the injury “was occasioned solely by the intoxication of the employee” [33 U.S.C.S. § 903(c), emphasis added]. Earlier this year, the Ninth Circuit Court of Appeals denied review of a Benefits Review Board decision that in turn had denied benefits to a longshore worker who, prior to and during his work day, consumed a substantial amount of alcohol, decided to relieve himself over the bull rail of his employer’s facility and, while doing so, fell over the rail onto a concrete and steel ledge approximately six feet below, sustaining injuries. The worker contended that because he hit the concrete surface rather than the river or a featherbed, his injury was not solely occasioned by intoxication. In other words, his “accident” may have been caused by intoxication, but the injury—i.e., the harmful physical consequences of the fall—was caused by hitting the concrete and metal slab. The Ninth Circuit panel disagreed. Noting that following the incident, the worker was transported to a hospital where tests revealed he had a blood alcohol level of .25 (more than three times the legal limit for operating a motor vehicle) and that he also tested positive for cannabis ingestion, the panel held that “occasioned solely by” intoxication meant that the “legal cause” of the injury was intoxication, regardless of the surface material of the landing on which the intoxicated person fell.
Citations link to lexis.com. Bracketed citations to Lexis Advance:
See Schwirse v. Director, Office of Workers’ Comp. Progs. 2013 U.S. App. LEXIS 15283 [2013 U.S. App. LEXIS 15283] (9th Cir., July 26, 2013)
See generally Larson's Workers' Compensation Law, § 36.03 [36.03]
CASE #2: SWAT Member May Not Sue Department of Corrections for Injuries Sustained During Electric Stun-Gun Training (Montana)
The Supreme Court of Montana affirmed a decision by a state trial court granting the Department of Corrections summary judgment in a civil action filed against it by a SWAT member who sustained injuries when he was shocked with an electric Taser® or stun-gun during a training exercise. Noting that in Montana, to avoid the exclusivity defense, an employee must show that the employer engaged in a deliberate act to injure the employee and that in the instant case the employee underwent the “tasing” on his own free will—giving full written consent to the exposure while acknowledging its potential risks—the court indicated the civil action could not proceed. The employee had failed to identify any evidence that the employer or its employees had actual knowledge that the employee’s exposure to the stun-gun was certain to injure him. His sole remedy was within the workers’ compensation arena.
See Harris v. State Dep’t of Corrections 2013 MT 16, 2013 Mont. LEXIS 16 [2013 Mont. LEXIS 16] (Jan. 29, 2013)
See generally Larson’s Workers’ Compensation Law, § 103.03 [103.03]
CASE #3: Pizza Deliverer’s Injuries Sustained in Altercation With Panhandler Found Compensable (Iowa)
A pizza delivery person must be concerned with traffic jams, aggressive dogs, dangerous neighborhoods, picky customers and small tips. You’d think that after the delivery, when the delivery person came within sight of the pizza shop itself, the coast would be clear. Not so for an Iowa deliverer who sustained a punctured lung when, as he returned from a delivery, he became embroiled in a fight with a panhandler who was being chased out of the pizza establishment by several other employees. The employer contended the injuries occurred some distance from the pizza establishment and arose from the employee’s desire to get into a fight. The appellate court noted, however, that the commissioner had considered more persuasive the employee’s own version of the incident. The evidence supported, therefore, the finding that the injuries arose out of and in the course of the employment and the altercation was not based on personal animosity on the part of the employee.
See Big Tomato Pizza v. Cloud, 2013 Iowa App. LEXIS 256 [2013 Iowa App. LEXIS 256] (Feb. 27, 2013)
See generally Larson’s Workers’ Compensation Law, § 6.04 [6.04]
CASE #4: Worker’s Injuries Allegedly Sustained in Tug of War Between Pickup Truck and Baling Machine Found Not Compensable (Montana)
Each year, I run across at least one case where the probable last words before the injury were “watch this.” This year’s selection involves the apparently conscientious, but reckless, attempt by a Montana employee to dislodge some metal that had become stuck in a baling machine. Unable to work the metal out manually, the employee decided to attach one end of a chain to the piece of metal and the other end to his pickup truck. He revved the engine, took off in the truck, but when the slack in the chain ran out, the metal didn’t budge and the resulting force lifted his truck off the ground, snapping the employee’s head backwards, or at least so he contended. He alleged the incident caused cervical injuries. The appellate court indicated that it was the claimant’s burden to establish an accident, an injury or aggravation of a preexisting condition, and that the causal connection between the employment and the accident and/or injury/aggravation was “more probable than not.” Moreover, in Montana, he had to establish the injury and causation by objective medical findings. The court held that the employee had not shown by a preponderance of objective medical evidence that he was entitled to temporary total disability benefits.
See Ford v. Sentry Casualty Co. 2012 MT 156, 365 Mont. 405, 282 P.3d 687 [365 Mont. 405]
See generally Larson’s Workers’ Compensation Law, § 128.02 [128.02]
CASE #5: Deputy Sheriff’s Mental Injury Claim Sustained Where Deputy’s Actions Led to Suicide of Suspect in Deputy’s Care (Wisconsin)
Several cases this year dealt with PTSD claims involving suicides by third parties. One involved a Wisconsin deputy sheriff who had the responsibility of transporting a suspect to a mental health facility. Wisconsin bars coverage for mental claims, such as PTSD, if the employee did not experience an event that “was so unexpected and unforeseen that it constituted unusual stress of greater dimensions than the day-to-day emotional strain and tension experienced by similarly situated employees.” Construing that rule, the Wisconsin appellate court affirmed an award favoring the deputy sheriff who witnessed the suspect’s suicide. Before transporting the person, the deputy examined the suspect’s wallet and noticed a small foil packet. Thinking it was some sort of bandage or other harmless object, the deputy returned it to the suspect. In fact, the packet contained a miniature scalpel that the suspect used to cut his own throat. The suspect died from the self-inflicted wounds before medical assistance could reach him. The appellate court agreed that the facts met Wisconsin’s “unexpected and unforeseen” criteria.
See County of Washington v. LIRC, 2013 Wisc. App. LEXIS 26 [2013 Wisc. App. LEXIS 26] (Jan. 9, 2013)
See generally Larson’s Workers’ Compensation Law, § 56.04 [56.04]
CASE #6: UPS Driver’s PTSD Claim Associated With Assailant’s “Suicide by Police” Found Compensable in Spite of Restrictive Mental-Mental Statute (West Virginia)
In another case, this one showing all the signs of “suicide by police,” a man with a rifle accosted a UPS driver, Hannah, and hijacked the driver’s truck. The gunman first fired a shot in the air near Hannah’s driver side door. He then threatened Hannah’s life and forced Hannah to drive him towards the police station. Along the way, the gunman saw a police cruiser parked at a gas station and forced Hannah to pull over. The gunman then took the keys to the truck, stepped out of the passenger side door, and fired a shot at the ground. Hannah was able to escape and hide behind a nearby store. Police officers subsequently shot and killed the gunman. Sometime after the incident, medical personnel diagnosed Hannah with PTSD resulting from the hijacking. One doctor reported that Hannah was experiencing multiple symptoms of PTSD, including sleep disturbances, nightmares, hyper-vigilance, and depression. Hannah sought workers’ compensation benefits, but his claim was rejected by the claims administrator as a psychiatric injury under W. Va. Code § 23–4–1f, which bars mental injury claims that lack a causative physical component. The last sentence of the statute is unusually explicit, stating:
… It is the purpose of this section to clarify that so-called mental-mental claims are not compensable under this chapter.
W. Va. Code § 23-4-1
The Office of Judges affirmed the claims administrator’s decision, but the Board of Review reversed. Notwithstanding the statutory provision, the Supreme Court of Appeals of West Virginia affirmed the Board’s decision to award benefits, finding that Hannah’s claim for PTSD was not barred by W. Va. Code § 23–4–1f, because his condition was “manifested by demonstrable physical symptoms, including sleep disturbances and jumpiness.”
See United Parcel Serv., Inc. v. Hannah, 2013 W. Va. LEXIS 1165 [2013 W. Va. LEXIS 1165] (Oct. 25, 2013).
CASE #7: Intentional Tort Action Against Wal-Mart Related to Death of Wal-Mart “Greeter” Barred by Exclusivity (North Carolina)
In February, the Court of Appeals of North Carolina affirmed a trial court’s order granting various defendants’ motions for summary judgment on exclusivity grounds in a wrongful death action filed by the administratrix of the estate of a Wal-Mart “greeter,” who sustained fatal injuries when she was knocked to the floor by an apparent shoplifter being chased by the greeter’s co-worker. The co-employee defendant (“Respass”) was employed as a loss prevention associate. His duties included the detection and apprehension of suspected shoplifters. On the day of the incident, Respass approached a “shopper” (Lambert), whom Respass suspected of shoplifting, and asked Lambert to follow him to the back of the store for further investigation. Lambert complied, but once the two reached the back of the store, Lambert turned and sprinted toward the front entrance. Respass chased Lambert and as the two neared the entrance, they collided with the decedent. Plaintiff filed a wrongful death action against Lambert, Wal-Mart, Respass, and others, contending Wal-Mart and Respass were liable under the intentional tort theory. Evidence suggested that all loss prevention associates were expected to reach a goal or “quota” of eight “apprehensions” per month. Failure to meet the purported quota could result in verbal warnings or transfer to a different department. Wal-Mart pointed to a written policy requiring all loss prevention associates (1) never to chase a shoplifter more than ten feet (no-chase policy) and (2) never to engage in a physical confrontation with a customer or shoplifter. The appellate court held that the action against Wal-Mart and Respass was barred by exclusivity since there was no real evidence that the injury was intended or substantially certain to occur.
See Pender v. Lambert, 737 S.E.2d 778 [737 S.E.2d 778] (N.C. Ct. App. 2013).
See generally Larson’s Workers’ Compensation Law, § 103.04 [103.04]
CASE #8: School Technician’s Assault and Battery Claim Against Principal Fails (California)
In order to protect student privacy, the school district’s policy was that staff members were not to allow parents to view staff computer screens. That policy had been communicated to Mendez, a school office technician. On the day in question, a school principal spied Mendez talking to a parent at Mendez’s desk, which was located behind a counter that divided the school office walkway from the staff desk area. Evidence suggested that the principal told the parent to move to the counter. When the parent attempted to explain the subject of her conversation with Mendez, the principal again insisted the parent move to the counter. According to Mendez’s contentions, the principal then walked toward Mendez, pulled Mendez out of her chair by the shoulders, grabbed her left arm, and dragged her to the counter. Mendez said she felt a sharp pain in her upper left arm at the time of the incident. During the incident, the principal told Mendez: "I told you not to speak to parents so close to your workstation." Ten minutes later, according to Mendez, the principal again put her hands on Mendez's shoulders and whispered into her ear: "I don't want you to speak to parents next to your desk. That is one of the many complaints from the district.” Mendez, who was soon thereafter laid off, sued the principal for assault and battery and sued the school district for wrongful termination. The trial court granted defendants’ summary judgment. The appellate court affirmed. Noting, in relevant part, that a workers' compensation claim was the exclusive remedy for injuries caused by the tortious conduct of co-workers acting within the scope of their employment and that Mendez could recover only if she could show an intentional injury, the appellate court held that the facts did not support a reasonable inference that the principal acted with the specific intent to injure Mendez. Summary judgment was, therefore, proper as the claim of assault and battery was barred by the workers’ compensation exclusivity rule. Note: This is an unpublished case—practitioners should review California Rules of Court, rule 8.1115(a), (b) before citing it.
See Mendez v. Los Angeles Unified Sch. Dist., 78 Cal. Comp. Cases 406 [78 Cal. Comp. Cases 406] (Cal. Ct. App. 2013)
Case #9: Pizza Waiter Suffers Severe Burns on Hand, But May Not Sue Employer in Tort (California)
Lighthearted horseplay can sometimes ease the stresses and strains within the workplace. Each year, however, it seems I run across at least one case where things get out of hand. This year’s example comes in the form of an unpublished case—practitioners should review California Rules of Court, rule 8.1115(a), (b) before citing it—it was the typical practice for the pizza cook to place the hot pizza on a metal pan—kept at room temperature—so that the pizza could be taken to the table out front. Evidence suggested that on one occasion—things may have been slow in the pizza restaurant at the time—the cook placed one of the pans in the oven along with the pizza. Under such circumstances, the pan was heated to 550 degrees F. The cook then put the freshly baked pizza on the pan. When the waiter picked it up to carry to a table, he burned his hand severely. After receiving workers’ compensation benefits, the waiter filed a civil action against the employer and the cook. A California appellate court held that the employer could not be liable in tort under these circumstances; there was no evidence the employer had intended the waiter to be harmed and the employer had not ratified the actions of the cook.
See Karty v. DePhillippis, 78 Cal. Comp. Cases 574 [78 Cal. Comp. Cases 574] (Cal. Ct. App. 2013)
Case #10: Past Acts of Horseplay Doomed Loan Officer’s Civil Action Against Supervisor for Broken Wrist (Ohio)
In another horseplay case, this one from Ohio, a state appellate court affirmed a judgment on a jury verdict favoring an employer and a co-employee defendant in a civil action filed by an office worker in a mortgage loan operation who contended she sustained a severe wrist break when the defendant-supervisor jumped out of his office to scare her as she walked toward a fax machine. The plaintiff contended that in the process of attempting the move, the supervisor struck plaintiff with both hands, causing plaintiff to fall to the floor. The supervisor had a different story. He contended the plaintiff had been engaged in horseplay with yet another co-worker just prior to the incident, that as was her habit, the plaintiff was swinging her arms like "a windmill" as she walked down the hallway toward the fax machine. Although plaintiff stated that she had never done the windmill, the other co-worker testified that plaintiff would frequently "do the windmill to" employees. The supervisor stated that he put his hands out to protect himself from plaintiff's windmill, ultimately causing plaintiff to fall backwards. Prior to seeking civil damages, plaintiff applied for and received workers' compensation benefits as a result of her injuries. The appellate court observed that the evidence demonstrated that horseplay was "an ongoing thing" at the employer; instances of horseplay occurred "a few times a week at least." The court held that there was sufficient evidence to support the jury’s verdict, the trial court’s instructions had not been improper, and the trial court did not err in denying the injured worker's motion in limine and by admitting evidence of prior acts of horseplay at work because the prior acts of horseplay were relevant to establish the employer's consent or acquiescence.
See Sanders v. Fridd, 2013 Ohio App. LEXIS 4569 [2013 Ohio App. LEXIS 4569] (Sept. 30, 2013)
See generally Larson’s Workers’ Compensation Law, § 23.01 [23.01]
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