Workers' Compensation

The Defense of Intentional Self-Injury: Russian Roulette, Workplace Frustration, Accidental Drug Overdose, and More

Rashness Versus Intention in Self-Injury Cases

In a few cases, attempts have been made to invoke the intentional self-injury defense when, although the workers obviously did not really intend to harm themselves, their conduct was so rash that the defendants attempted to argue that it was the equivalent of intentional self-injury. Thus, the decedent in a Fifth Circuit case had been warned by his physician that if he engaged in hard work it might cause his death. Ignoring this warning was held not to be evidence of intentional self-injury, and compensation was awarded. See Glens Falls Indem. Co. v. Henderson, 212 F.2d 617 (5th Cir. 1954). Somewhat similarly, where a grocery store cake decorator developed carpal tunnel syndrome and, following surgery, was told by her doctor not to decorate cakes, but did so at the request of her employer because it was understaffed, the employer could not then say the worsening of her condition was self-inflicted. See Pick ‘n Save Roundy’s v. Labor and Indus. Rev. Comm’n, 2010 WI App 130, 791 N.W.2d 216 (2010).

Probably most people would agree that this decision was correct in rejecting such a fictitious extension of the plain meaning of “intentional.” But what if a worker dies playing Russian Roulette?

An actual case of this kind arose in 1982. The employee was killed at work while he and a co-employee were playing a form of Russian Roulette. The Louisiana appellate court passed up the rare opportunity to do a thorough job of analysis on this unique set of facts and merely stated that the trial judge’s determination that the decedent had not been attempting intentionally to injure himself was not clearly wrong. The award of death benefits was affirmed. See Bennett v. Industrial Welding and Fabricating, Inc., 411 So. 2d 574 (La. Ct. App. 1982).

Impulsiveness Versus Intention in Self-Injury Cases

Impulsiveness is closely related to rashness, but is not quite the same. In the “rashness” cases the worker deliberately does something that is extremely reckless. In the “impulsiveness” cases there is no deliberateness at all. Typically, the worker becomes suddenly unbearably exasperated over some work-related incident and smashes a fist against the wall, breaking a bone in his or her hand.

Perhaps it is a reflection of the increase of work tensions in recent times, but in any event three cases presenting this fact pattern appeared within the space of a year in 1979-1980. Compensation was denied in all three, for three different reasons. In the Maine case, the act was said to be outside the course of employment, an unabashed fiction. See Wing v. Cornwall Industries, 418 A.2d 177 (Me. 1980). In Cunningham v. Industrial Comm’n, 78 Ill. 2d 256, 399 N.E.2d 1300 (1980), Illinois invoked the added-risk doctrine, a doctrine virtually obsolete and discredited in every state but Illinois.

It is the rationale of the Utah case that is on point here, since the court relied on the self-injury defense. In McKay Dee Hosp. v. Industrial Commission, 598 P.2d 375 (Utah 1979), the claimant, after a conversation with his superior concerning future leave time, became angry and slammed his fists against two metal doors, one of which he knew to be locked and stationary, thereby breaking a bone in his right hand. The commission awarded compensation. The Utah Supreme Court reversed and denied compensation. The statute allowed compensation to an employee who was injured by accident in the course of employment, provided the injury was not purposely inflicted. The commission’s finding that the injury was not purposely inflicted created the inference that it was caused by accident, and as an inference derived from fact it was a question of law to be determined by the appellate court. It followed from the definition of “accident” that, while the injury might be intentional, in order for the incident to fall within the confines of the term “accident,” the result of the intentional activity must be unexpected or unforeseen. When the claimant slammed his fist against a locked, stationary metal door, it was foreseeable and expected that injury would result, and thus it was not an accidental injury.

This is a bad decision. Certainly the claimant did not intend to break his hand, any more than the worker with a weak heart in Gilliland intended to kill himself by breaking rock. See Gilliland v. Ash Grove Lime & Portland Cement Co., 104 Kan. 771, 180 P. 793, 796 (1919). Of course, it was possible that these injuries would result in each case. It is quite another matter to say that it was expected, much less intended. To conclude that the claimant expected or intended to break his hand, and slammed the door with his fist anyway, is preposterous. There is no place in compensation law for this artificial and fictitious kind of “intention.” Carried to its logical conclusion, this concept would rule out compensation for practically every rash intentional act, on the theory that injury from such conduct was foreseeable.

In a case factually similar to McKay Dee Hospital, matters worked out much better for a 22-year veteran of a city police force who injured his hand when he struck a wall in frustration during a heated discussion with a superior officer. When questioned about the handling of a case by the supervisor, the veteran officer could not remember important details since it had been resolved seven months earlier. The officer sought to break off the discussion several times, but the superior officer kept up the verbal attack. Finally, the veteran turned and hit the wall with his hand, causing a compound fracture of one of the bones. See Smith v. Workers’ Comp. Appeals Bd., 79 Cal. App. 4th 530, 94 Cal. Rptr.2d 186 (2000).

While the workers’ compensation judge found the circumstances did not warrant a denial of compensation for intentional self-injury, the appeals board disagreed. Using logic similar to the court in McKay Dee Hospital, the board indicated the injury was foreseeable, especially given the veteran’s expertise in boxing.

The court of appeal reversed the board. The subject matter of the argument between the officers was work-related. Claimant’s striking the wall was an act of anger and frustration, not a deliberate intent to cause himself injury. Many employees, particularly those in high stress employment such as law enforcement, are subject to considerable pressures. These pressures accumulate over time and can surface during what otherwise might be considered a trivial event. To disqualify a claimant for a simple explosion of temper would reintroduce the concept of contributory negligence and employee fault when those concepts have no place in the workers’ compensation setting.

Suicide Test as Test for Self-Injury

The Georgia court disposed of the self-injury issue by applying the chain-of-causation test drawn from suicide cases. See Bullington v. Aetna Cas.& Sur. Co., 122 Ga. App. 842, 178 S.E.2d 901 (1971), rev’d on other grounds, 227 Ga. 485, 181 S.E.2d 495 (1971). The decedent had a moderate drinking problem before his accident, but it was found that, due to a combination of his pain, enforced idleness, and apprehension of surgery, the drinking problem was aggravated, and resulted in his death from alcoholic gastritis. The court held that the defense of intoxication was not applicable, in that intoxication was the medical cause of death, rather than the cause of the accident. The court further held that the proper test was to apply the “intentionally self-inflicted injury test” as a defense, and adopted the “Arizona test” for compensable suicides, holding such a death compensable if the suicide, or alcoholic problem, resulted from the decedent’s becoming devoid of normal judgment.

There is much to be said for this approach, which has been adopted by other states in the context of injuries caused by attempted suicide. See Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo. Ct. App. 1994), reh’g denied (Sept. 22, 1994). The statutory self-injury defense is frequently uttered in the same breath with the suicide defense: “suicide or intentional self-injury.” The way to test the correctness of this standard is to postulate an unsuccessful suicide attempt that leaves the worker with a serious personal injury. It seems reasonable that, if the suicide defense would have been rejected had the attempt succeeded, it should equally be rejected if the attempt failed.

See also Matter of the Claim of Fayo v. Crystal Run Health Care, LLP, 80 A.D.3d 1025, 915 N.Y.S.2d 705 (3rd Dept. 2011). Claimant’s spouse was employed as a registered nurse when, in May 2004, she slipped on a wet floor at work and fell. She struck the back of her head on a sink and thereafter was awarded workers’ compensation benefits for injury to her head, neck and back. Her attempt to return to work was unsuccessful, and she received treatment for ongoing pain and severe headaches. On April 13, 2005, decedent died from an apparent accidental drug overdose. Claimant sought workers’ compensation death benefits and, following hearings, a WCLJ determined that decedent’s death was causally related to her employment. The Board agreed and the employer appealed. Noting that death resulting from an accidental overdose taken to relieve a condition caused by a work-related accident could be compensable, the appellate court indicated that the resolution of conflicting medical opinions regarding causation was an issue vested within the province of the Board; it would not be disturbed so long as it rested upon substantial evidence. The court indicated that while conflicting evidence had been presented, the Board credited the testimony of decedent’s psychiatrist and determined that decedent’s post-accident pain led to her drug abuse that resulted in her death. Substantial evidence in the record supported that determination and, in light of the court’s limited scope of review, the Board’s decision was affirmed.

Additionally, see J.D. Landscaping v. Workers' Comp. Appeal Bd. (Heffernan), 31 A.3d 1247 (Pa. Commw. Ct. 2011). This case illustrates the important distinction between the issue of causation and those related to the reasonableness and necessity of medical treatment. The injured worker died of an accidental overdose of medication that he took to deal with the pain associated with a compensable low back injury. Following a utilization review request, it was determined, however, that after a certain date, such treatment was not reasonable or necessary. The court held that the utilization review determination did not bar the death claim filed by the deceased employee's daughter.

In summary, so far as reported cases are concerned that have actually turned on the self-injury defense, since the “rashness” and “impulsiveness” examples require substituting fictitious for real intent to injure one’s self, the only remaining legitimate applications of the defense seem to be those that would have satisfied the suicide defense if the self-injury had resulted in death.

© Copyright 2012 LexisNexis. All rights reserved. This article is an edited excerpt from Larson’s Workers’ Compensation Law.

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