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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, including a “bonus case”, during 2012. 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 firstname.lastname@example.org.
CASE #1: No Benefits for Rattlesnake Bite When Capturing Snake Not Connected to Truck Driver’s Employment (Alabama)
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 Mercy Logging v. Odom, 2012 Ala. Civ. App. LEXIS 198 (July 27, 2012).
See generally Larson's Workers' Compensation Law, §§ 4.02, 29.01.
CASE #2: Injured Worker's Spouse May Proceed With Tort Action Against Third-Party Administrator for "Aggressive" Surveillance of Worker's Family (U.S.)
In a diversity action filed by the spouse of an injured worker against the third-party firm administering her husband's workers' compensation claim, a federal district court last March refused to grant the defendant's summary judgment motion, finding the tort action was not barred by the exclusive remedy provisions of the Connecticut Workers' Compensation Act. The husband, an employee of the Connecticut Department of Corrections, had sought workers' compensation benefits for an alleged work-related injury. Thereafter, the plaintiff spouse claimed that the defendant "aggressively" surveilled the worker's family, including one incident in which plaintiff, accompanied by her daughter and grandfather, reached speeds of 80 miles per hour while being chased by representatives of the defendant. Plaintiff also alleged that a few days later plaintiff and her family left for a camping trip in Rhode Island and an agent of the defendant followed them to the campsite and took pictures of the group. Plaintiff alleged that over the next several months defendant's personnel conducted additional surveillance of the plaintiff's home and that the cumulative actions of defendant had caused plaintiff emotional distress. Citing Larson's Workers' Compensation Law, § 104.05, the federal district court held that there were issues of fact that precluded summary judgment, that the Connecticut legislation granting general tort immunity had not intended carriers and their representatives to be exempt from all torts in connection with the handling of claims.
See Nordstrom v. GAB Robins North America, Inc., 2012 U.S. Dist. LEXIS 46148 (W.D. Ct., Mar. 31, 2012).
See generally Larson's Workers' Compensation Law, § 104.05.
CASE #3: Quesadilla Bites Back: Restaurant Waiter’s Choking Was Not Actual Risk of Employment (Virginia)
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 #4: Exotic Dancer Shot in Strip Club Brawl Gets No Benefits; Dancer Was an Independent Contractor, Not an Employee (South Carolina)
An exotic dancer, who worked in various “strip” clubs in North and South Carolina, and who was shot and seriously wounded while performing at the Boom Boom Room Studio 54 in Columbia, South Carolina, was an independent contractor and not an employee of the club, held a divided Court of Appeals of South Carolina last September. Accordingly, she could not recover workers’ compensation benefits for her injuries. The 19-year-old dancer lived in Charlotte where she danced three or four nights each week at a local club. On two or three other nights a week, she traveled around the Carolinas to dance in other clubs, earning between $250 and $350 each night in cash. She had only danced at the Boom Boom Room on a couple of prior occasions. As explained by other exotic dancers who testified at a hearing, they often chose a city and a club to dance in on a particular night and travel there uninvited and unannounced. In keeping with that practice, the dancer presented herself at the Boom Boom Room and paid the required “tip-out” fee in cash to the club. She completed no paperwork. The club gave her a “rules sheet” and she went to the dressing room to put on her outfit. Then she danced. At some point during the night, an altercation broke out in the club. There was gunfire, and a stray bullet hit the dancer in the abdomen. She suffered serious injuries to her intestines, liver, pancreas, kidney, and uterus. Surgeons removed one kidney, and doctors informed her she may never be able to have children due to the injuries to her uterus. According to her testimony, extensive scarring from the gunshot wound left her unemployable as an exotic dancer. Both the single commission and the appellate panel denied the dancer’s claim based upon a finding that she was not an employee. She appealed, contending that the club managers “controlled” her by searching her when she arrived, requiring her to pay the “tip-out” fee, and directing her to the manager’s office, and then to the dressing room. She argued that she also danced only when she was told to dance. The club selected the music, set the hours, and determined the general environment. She further argued that the club furnished equipment, such as the stage for dancing, poles to assist the dancers, private rooms for V.I.P. dances, tables, chairs, and the like. The majority of the court indicated that under prior decisions it was clear that she was not an employee. She had discretion in how she danced. Moreover, the court indicated that the equipment furnished by the club was not significant. Important to the case was the fact that the club paid the dancer nothing at all. Indeed, she paid the club for the right to perform. This factor weighed heavily against an employment relationship. Finally, there was no showing that the club could fire the dancer. All the factors pointed to the conclusion that the dancer was not an employee, but rather an independent contractor.
See Lewis v. L.B. Dynasty, Inc., 2012 S.C. App. LEXIS 260 (Sept. 5, 2012).
See generally Larson's Workers' Compensation Law, § 61.02.
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.
CASE #7: Truck Driver’s Search for Object With Which to Assault Driving Partner Was Substantial Deviation From Employment (Tennessee)
In March, a special Workers' Compensation Appeals Panel of the Supreme Court of Tennessee, quoting Larson’s Workers’ Compensation Law, affirmed a decision by a state trial court that had dismissed a truck driver’s complaint against a former employer to recover for workers’ compensation benefits where it appeared that the injured driver became angry at his driving partner, stopped the vehicle in a remote location, got out of the truck, and set upon a personal mission to obtain an object with which to assault his driving partner. The court acknowledged a conflict in evidence—the injured driver claimed that he had sustained injuries as he tried to reenter the truck after his driving partner indicated he was going to leave the driver in the Arizona desert—but noted that the trial court had found the injured driver's testimony not to be credible.
See Eady v. Commodore Express, Inc., 2012 Tenn. LEXIS 156 (Mar. 8, 2012).
See generally Larson's Workers' Compensation Law, § 130.05.
CASE #8: Drinking Binge and Two-Hour Nap Found to Be Deviation From Employment, Subsequent Fall Down Elevator Shaft Not Compensable (Utah)
Citing Larson's Workers' Compensation Law, § 20.01, a Utah appellate court last January held that a painter was not entitled to workers' compensation benefits for severe injuries sustained when the employee fell into an elevator shaft after a drinking binge after lunch at the work site, followed by a two-hour nap in a closet. The court reasoned that while the employee was on the premises at the time of the injury and the injury occurred during the normal work day, the painter could not be said to have been furthering any business of his employer when he drank for two hours and then took the nap.
See Wood v. Labor Comm'n, 2012 UT App 26, 2012 Utah App. LEXIS 27 (Jan. 26, 2012).
See generally Larson's Workers' Compensation Law, § 20.01.
CASE #9: Snake-handling School Official and School Board Are Immune From Tort Liability for Brandishing Serpent in Office (Kentucky)
In mid-December, the Court of Appeals of Kentucky affirmed a state trial court’s summary judgment in favor of a high school assistant principal and a county board of education in a civil action filed by a high school teacher/administrator (and her husband) that alleged intentional and malicious injury when an assistant principal entered the teacher’s office carrying a large snake. The teacher alleged that when she saw the snake, she jumped up out of her chair, started screaming, and ran into the concrete wall that was behind her chair. The teacher indicated the snake had its head up and its tongue out as if it was going to strike. She also alleged that she suffered injuries to her knees and heart, as well as post-traumatic stress syndrome. According to the teacher, the assistant principal just stood there and laughed and said that the teacher must be “a sissy” because she was afraid of “my friend.” The assistant principal countered that she took the snake to the school’s administrative offices because a student’s mother had brought it to school for a science class. The assistant principal added that she did not enter the teacher’s office, but remained in the doorway, and that the teacher had never communicated any fear of snakes. Agreeing with the trial court that the tort action was barred by the exclusive remedy provisions of the state’s workers’ compensation law, the appellate court held that the actions of the defendant principal did not amount to “willful and unprovoked physically aggression.” The court continued that there was no evidence that the assistant principal threatened to touch or had actually touched the teacher with the snake, or that she pushed or thrust the snake toward the teacher. Absent any such evidence of aggression or hostility, the assistant principal’s actions fell within the scope of her employment. Both the school district and the assistant principal enjoyed the immunity afforded by the state’s workers’ compensation law.
See Jones v. Dougherty, 2012 Ky. App. LEXIS 283 (Dec. 14, 2012).
See generally Larson's Workers' Compensation Law, § 103.03.
CASE #10: State Workers’ Compensation Act Was Exclusive Remedy for Death From Disease Associated With Pigeon Droppings (New Mexico)
In May, a New Mexico appellate court held that while an employee’s death from psittacosis—a disease contracted from pigeons roosting in the warehouse where he worked—was not covered by the state’s Occupational Disease Disablement Law, it was compensable under the state’s Workers’ Compensation Act and, therefore, a wrongful death action filed by the worker’s widow against the employer was barred by the exclusive remedy provisions of the Act. The court concluded that, even though the causation was quite unusual, the injury was sufficiently connected to his employment for recovery to be exclusively covered by the Act.
See Castillo v. Caprock Pipe & Supply, Inc., 2012 N.M. App. LEXIS 52 (May 30, 2012).
See generally Larson's Workers' Compensation Law, § 42.03.
BONUS CASE: Serious Injuries Caused by Employee’s Attempt “to Ride” Escalator Rail at Annual Sales Meeting Found Compensable (North Carolina)
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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