Larson’s Spotlight on Recent Cases: Restaurant Waiter’s Choking on Quesadilla Was Not Actual Risk of Employment

Larson's Spotlight on Risk of Employment, PTSD claim, Intoxication Presumption and Marijuana, and Tort Action Against Employer. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

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VA: "Go Figure"-Restaurant Waiter's Choking on Quesadilla Was Not Actual Risk of Employment

The heart of every compensation act, and the source of most litigation in the compensation field, is the coverage formula. For than four-fifths of the states and the Longshore and Harbor Workers' Compensation Act have adopted the entire British Compensation Act formula: injury "arising out of and in the course of employment." As noted by Arthur Larson, "[f]ew groups of statutory words in the history of law have had to bear the weight of such a mountain of interpretation as has been heaped upon this slender foundation." To make the task of construction easier, the phrase is often broken in half, with the "arising out of" portion construed to refer to causal origin, and the "course of employment" portion to the time, place, and circumstances of the accident in relation to the employment.  The "arising out of" phrase is generally reduced to three competing doctrines of current importance: the increased-risk, actual-risk, and positional-risk doctrines.  On occasion, a court states that it is following one of the doctrines, only to utilize the rationale within one of the others.  This can be seen in a recent decision from Virginia.

Affirming the somewhat bizarre reasoning of the state's Workers' Compensation Commission, the Court of Appeals of Virginia, in a divided opinion, recently 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 for 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 used 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 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.

SC: Deputy Sheriff's PTSD Claim Arising From Fatal Shooting of Suspect is Not Compensable

A divided Supreme Court of South Carolina recently affirmed a unanimous finding of an Appellate Panel of the state's Workers' Compensation Commission that a deputy sheriff failed to meet his burden of proof in establishing a compensable mental injury that arose from an "unusual or extraordinary condition" of employment in connection with his shooting of a suspect during a disturbance in Spartanburg County. Citing Larson's Workers' Compensation Law, § 56.06[3], the court observed that while a majority of states allowed compensation for mental-mental claims, some, such as South Carolina, required that the employee's employment conditions causing the stress, mental injury, or mental illness be "extraordinary and unusual" in comparison to the normal conditions of the particular employment [S.C. Code Ann. § 42-1-160].  The use of lethal force was not an extraordinary or unusual condition of the deputy's particular employment. For additional discussion, see http://www.workcompwriter.com/south-carolina-deputy-sheriffs-ptsd-claim-in-connection-with-fatal-shooting-of-suspect-is-not-compensableno-extraordinary-or-unusual-employment-condition-existed/.

See Bentley v. Spartanburg County, 2012 S.C. LEXIS 136 (July 11, 2012).

See generally Larson's Workers' Compensation Law, §§ 56.03, 56.04.

LA: Marijuana in Injured Worker's System Defeats His Claim for Benefits

In a divided decision, a Louisiana appellate court recently found that a workers' compensation judge's denial of benefits was supported by the evidence, where an injured worker was transported to a hospital where he submitted a urine sample for drug testing and the test came back positive for marijuana metabolites.  At trial, a physician testified that the volume of marijuana metabolites in the worker's test was 100 ng/ml (nanograms per milliliter) and that in the doctor's expert opinion, those levels indicated use of marijuana within one week, but not necessarily intoxication.  The worker testified that he had not used marijuana in the month prior to his accident.  He contended, therefore, that he had rebutted the presumption of intoxication found in La.R.S. 23:1081(1)(b).  The appellate court disagreed, noting that the WCJ based her judgment on the fact that the accident-the worker was struck by a vehicle as he exited his own vehicle without looking-was caused by the worker's inattention and slow reaction to an oncoming vehicle.  The WCJ indicated that the evidence was consistent with intoxication.  The appellate court agreed.

See Romero v. Louisiana Commerce and Trade Assoc., 2012 La. App. LEXIS 956 (July 13, 2012).

See generally Larson's Workers' Compensation Law, § 36.03.

US: Employee Struck by Forklift at Work Fails to Show Requisite Level of Intent Required to Support Tort Action Against Ohio Employer

Construing Ohio law, a federal district court recently granted the defendant-employer's motion for summary judgment in an intentional tort action filed by an employee who was struck by a forklift in the course of her employment.  Evidence indicated that the floor of the employer's work facility was marked with lanes for foot traffic and that forklift operators were supposed to stay clear of the designated areas.  It was unclear whether plaintiff was "inside" one of the protected lanes when she was struck.  Reviewing Ohio law concerning intentional tort actions, the federal court indicated that there was no evidence in the record from which a rational trier of fact could find that the employer harbored the requisite, specific intent demanded in ORC § 2745.01.

See Pignatiello v. Plastipak Packaging, Inc., 2012 U.S. Dist. LEXIS 97373 (N.D. Ohio, July 13, 2012).

See generally Larson's Workers' Compensation Law, § 103.04.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

Larson’s Workers’ Compensation Law

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