CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
© Copyright 2023 by Thomas A. Robinson, workcompwriter.com. All rights reserved. Reprinted with permission.
As I have noted early each January for many, many years now, prior to the death of my mentor and friend, Dr. Arthur Larson, the original author of the oft-cited Larson treatises in workers’ compensation law (and in employment discrimination law, as well), Arthur and I began a quirky—though humorous—New Year’s tradition. Beginning in the mid-1980s, on an evening in early January, he and I would gather in his home on Learned Place, near Duke University’s campus here in Durham. Arthur would pour us a cocktail (or two). Then, we’d sit down and compare our respective lists of the previous year’s “bizarre” workers’ compensation cases.
Several years after his death, I began to craft my own annual list—in memory of Arthur—sending it out to half a dozen colleagues via snail mail. When I launched this blog site in December 2011, I migrated the annual list to it, beginning in January 2012. Each year, this post gets more hits than any of my serious writing. As some of you know, a few years ago, my annual list was even featured on National Public Radio’s Saturday morning show, “Wait, Wait, … Don’t Tell Me.”
Please specifically note that, as is the case with all previous “Bizarre Lists,” I am ever mindful of the fact that while a case might be factually bizarre in an academic sense, it is intensely real for the participants and their families. These highlighted cases involve real injuries, some even fatal. Life has its bizarre moments and, since the workers’ compensation world is peculiarly representative of the larger world around it, the cases we see each year sometimes have quirky, truly bizarre, fact patterns.
In recent years, I have sometimes included cases that made the news, but not the actual reporter system. For better or worse, I’ve determined to return to one of Arthur’s original rules—that in order to be included, the case had to be reported by LexisNexis and West.
And so again, in the spirit of my annual January ritual, I offer ten bizarre cases that I hope give you a chuckle. Who knows? You might even learn something. Although the cases are numbered, I’ve listed them randomly. Bizarre, like beauty, is in the eye of the beholder.
Most of us have experienced a dull classroom situation in which we’ve struggled to hold open our eyes. This case from Florida adds an interesting twist. A teacher worked within a special program for students who had been expelled for their involvement in severe incidents at other schools. The students were required to stay in one classroom all day, but were allowed to leave that room for lunch and for special elective classes. On the day of his injury, before dismissing the class for lunch, the teacher took a seat in his usual chair at his usual desk to sit for five minutes or less. He described the chair as being similar to the rolling chair in which he was seated for his workers’ compensation claim hearing before the JCC. As the teacher stood, he had no feeling in his left leg. the leg gave way, causing the teacher to fall on the linoleum floor and break his left femur. The parties stipulated that the teacher did not trip or stumble immediately before the fall, and that he did not strike the desk or any other work equipment as part of the fall. No one assaulted him or pushed him.
Two physicians testified that the teacher’s condition was relatively common and that the teacher’s leg could have “fallen asleep” virtually anywhere. The JCC found that the sitting and standing described by the teacher were “routine movements” to which the teacher would normally be exposed in his non-employment life as well, so that the risk of the teacher’s leg going numb did not flow from his employment. Accordingly, the JCC denied the claim. The Florida appellate court affirmed. Quoting Larson’s Workers’ Compensation Law, and applying the state’s major contributing cause standard, the court stressed that the teacher’s leg phenomenon could have been triggered at any time by normal, everyday movement outside work. The teacher, therefore, had failed to show that the risk that his leg would fall asleep arose from the employment.
Silberberg v. Palm Beach County Sch. Bd., 2022 Fla. App. LEXIS 1078 (1st DCA, Feb. 16, 2022).
If you have ever spent time at a large construction site, you may recall the cacophony of competing music choices, with some workers jamming to rock, others to reggae, still others to rap. In an unusual case from Mississippi, Hollis was employed as an acoustical grid installer at a construction site. Workers for a sprinkler installation company worked nearby. While there was a conflict in the testimony, it appeared that the workers installing the sprinkler system were listening to Christian rap music on a cellphone. Some of the acoustical grid installers working nearby complained that the Christian rap “music” was too loud. There may, or may not have been an exchange of harsh words at that time. In any event, things seemed to have calmed by lunch and the various crews ceased working for a bit.
While the versions of what happened after lunch differed significantly, Hollis and one of them became involved in a fight. In addition to punches, there apparently were some racial epithets thrown as well. Hollis testified that the Christian rapper got him in a choke hold after Hollis suggested country music was a better music genre (I’ve cleaned up the discussion a bit). Hollis was thrown to the floor and ultimately underwent surgery to repair a complete tear of the medial collateral ligament, a rupture of the anterior cruciate ligament, and a rupture of the medial collateral ligament of his right knee. He sought workers’ compensation benefits.
Following a hearing, the administrative judge found the claim was not compensable, since at the time of the injury both Hollis and the other worker had deviated from the employment. The Commission affirmed, with one Commissioner dissenting. The Commission found that Hollis had engaged in conducted intended to injure himself or another, in violation of Miss. Code Ann. § 71-3-7(1)(Rev. 2021). The appellate court affirmed, finding that the altercation’s cause had been an argument over music genres—and not the work being performed. Hollis’ injuries did not arise out of and in the course of the employment. The court added that the worker’s injuries also resulted from conduct that had been intended to cause injury to himself or another, in violation of Miss. Code Ann. § 71-3-7(1)(Rev. 2021).
Hollis v. Acoustics, Inc., 2022 Miss. App. LEXIS 337 (Sept. 27, 2022).
Johnson worked as an electronic technician for three weeks prior to his death on September 2, 2017. Almost two years later, his widow filed the instant workers’ compensation claim, contending her husband’s death had been caused by his exposure to “radar beams” at work. The medical evidence was conflicting. On the one hand, there was testimony that Johnson was “healthy,” never went to the doctor, and was not excessively overweight. On the other hand, other testimony indicated that Johnson smoked half a pack of cigarettes daily, had a “nightcap” one or two times per week, had been tired all the time during the period before his death, and sleepwalked three to four times per week. Related testimony indicated that Johnson had a metal plate implant in his jaw due to an earlier car accident.
Johnson’s widow presented the testimony of an environmental toxicologist who testified that Johnson’s cardiac arrest “was triggered by his exposure to radar in the test chamber.” The expert admitted the levels of radiation exposure in the test chamber were within the Federal Communications Commission’s guidelines but opined the exposure still harmed Johnson. The expert further testified that Johnson’s three weeks of radar exposure while at work, “for six to eight hours a day,” exacerbated by the metal implant, likely made Johnson “electrically hypersensitive” and caused his cardiac problems. Another expert, this one a cardiologist, testified that it was more likely than not that employer’s delay in retrieving and using a defibrillator contributed to Johnson’s death.
One of the employer’s medical experts, an industrial hygienist, rebutted the medical testimony offered by the widow. This expert opined that given the low radar exposure at the testing site—approximately 0.5% of the FCC’s limit—there was “zero potential for an extreme exposure” and the dangerous effects the widow’s expert had described. Another expert offered by the employer opined that Johnson’s death was more likely the result of his hypertension, mild obesity, and smoking and alcohol history.
Johnson v. General Dynamics Corp., 2022 Va. App. LEXIS 61 (Mar. 8, 2022).
In a case that illustrates a core rule in most jurisdictions, that the Board, Commission, or other agency administering claims has broad discretion in weighing the credibility of witnesses, a Pennsylvania appellate court affirmed a decision by the state’s Workers’ Compensation Appeal Board that had denied a claim filed by a union carpenter against his purported employer following what the claimant contended was an assault by a co-worker. The carpenter claimed that while he was signing out for the day, a co-worker, Lewandowski, assaulted him. The claimant contended that Lewandowski grabbed him from behind, lifted him off the ground, and violently tossed him back and forth like a pendulum. He testified the incident lasted more than 20 seconds, causing injury to his neck, lower back, and abdomen. The WCJ denied the claim, however, noting that the claimant did not report the incident that day, did not report the “assault” to the police, and waited two months before filing his workers’ compensation claim. The Board affirmed and the claimant appealed.
The appellate court indicated the testimony of two other co-workers had helped undermine the carpenter’s claim. They testified that the incident actually a “hug” from behind, that claimant was not lifted off the ground at all, and that the impetus for the incident the fact that the claimant had given Lewandowski a tee shirt he’d purchased at a Polish festival as a friendly gesture. Lewandowski had meant no harm, was not angry, and was just trying to thank him. Based on the foregoing, the appellate court agreed there had been no such assault.
Stanis v. Workers' Comp. Appeal Bd. (Brand Energy Servs.), 2022 Pa. Commw. Unpub. LEXIS 220 (May 23, 2022).
In the first of two firecracker cases, Durance worked for Amtrak as a baggage handler in Seattle. During his shift, Durance entered the employee restroom which was only accessible via keycard. Just as Durance sat on the toilet seat, he heard an explosion and felt “the most pain” he’d ever experienced in his life. He lifted the toilet seat and saw a red object, which appeared to him to be a firecracker, fall to the floor. Durance was given an ultrasound, a tetanus shot, and pain medication for his injury. Ultimately, neither Amtrak detectives nor officers from the Seattle Police Department ever discovered the identity of the perpetrator. Durance filed suit against Amtrak pursuant to the Federal Employers’ Liability Act (FELA). A Washington state appellate court affirmed a decision granting summary judgment in favor of Amtrak. While the railroad owed Durance a duty to provide a safe workplace for its employees, the scope of that duty was limited by the reasonable foreseeability of the harm. The court agreed that the harm done to Durance was not reasonably foreseeable. Amtrak was, therefore, not liable under the FELA.
Durance v. Nat'l R.R. Passenger Corp., 2022 Wash. App. LEXIS 2051 (Oct. 31, 2022).
The second firecracker case—this one from Illinois—also turned on credibility findings. Claimant, who worked for a job staffing company, was performing manual labor at a city reservoir. He had been instructed to remove tree branches and to mow the lawn on the property. While walking on the lawn, the claimant picked up a round object that was lying on the ground with his right hand. The object was a firework, which exploded while the claimant was holding it. The explosion caused extensive injuries to the claimant’s right hand and fingers and burns to his left hand, chest, and torso.
The parties disputed how the accident occurred. Claimant contended it went off spontaneously. The employer’s experts said otherwise. Claimant had admitted that he carried a lighter on the day of his injury. The employer’s experts testified that the location of the lighter and the nature of the claimant’s injuries suggested that the claimant was holding the lighter in his left hand at the time of the explosion and that the lighter had been near the firework when it exploded. They further testified that the location where the lighter was found, the burnt condition of the lighter, the presence of carbon on the lighter, and the lack of any burns to the claimant’s pants, belt, or belt loops suggested that the lighter was close to the firework and was not clipped to the claimant’s pants at the time of the explosion, as the claimant alleged. Moreover, both experts testified that the firework at issue could not have exploded without an ignition source. This evidence cast considerable doubt on the veracity of the claimant’s account of the incident. The Commission’s decision to credit the two experts’ opinions over the evidence offered by claimant was reasonable. The Commission’s finding was not against the manifest weight of the evidence. Recovery was denied.
Junior v. Illinois Workers’ Comp. Comm’n, 2022 IL App (4th) 210341WC-U, 2022 Ill. App. Unpub. LEXIS 645.
In yet another explosion case—this one without firecrackers—Van Sciver worked for Jersey Mechanical Contractors, Inc., a small family-owned business that provided mechanical contracting services at various job site locations primarily in New Jersey. Van Sciver’s tasks usually included using a Jersey Mechanical truck to make deliveries to the company’s job sites. He often delivered tanks of acetylene gas (B-Tanks), which were used to solder pipes. On the day of the injury, Van Sciver’s boss directed Van Sciver to perform several tasks, which included exchanging two empty B-Tanks for full ones at a store that serviced B-Tanks; delivering one full B-Tank to a job site in Livingston; and delivering paychecks to Jersey Mechanical employees at five job sites. When he arrived at one of the job sites, the representative there asked if he was delivering a full B-Tank, indicating further, that one was needed badly. Van Sciver advised that he had not been instructed to do so.
At the end of the workday, Van Sciver returned to Jersey Mechanical’s facility and dropped off the company’s work truck. Acting on his own initiative, Van Sciver then loaded a full B-Tank into the hatchback of his personal vehicle with the intent of delivering it to the job site that had requested it. He could not deliver it that day, because the site had closed for the day, so Van Sciver decided to deliver it the next morning. That next morning, as Van Sciver was talking to his supervisor on a cellphone from his personal vehicle, he heard a “hissing” sound. Accordingly, he stopped on the side of the road, opened all the windows, got out of his car, and went to the rear of his vehicle. As Van Sciver opened the hatch of his vehicle, the B-Tank exploded. That explosion caused serious and severe injuries to petitioner. Following the explosion, he was rushed to a trauma hospital where he underwent multiple surgeries and extensive medical treatment. Petitioner was in a coma for eight days, he suffered traumatic brain injuries, and he lost the use of one of his eyes. Van Sciver later filed a workers’ compensation claim, which was denied by Jersey Mechanical. It contended the injuries had not occurred in the course and scope of the employment. The New Jersey appellate court, contemplating the denial by the employer, essentially said, “Yeah, right,” and affirmed the award of benefits.
Van Sciver v. Jersey Mech. Contrs., 2022 N.J. Super. Unpub. LEXIS 2169 (Nov. 15, 2022).
In a case that proves that not cannabis users are as mellow as Sergeant Oddball, in the 1970 movie hit, Kelly’s Heroes (expertly played by Donald Sutherland)—“Don’t hit me with those negative ways so early in the morning”—a Nevada appellate court, in an unpublished decision, reversed a decision that had denied coverage for injuries sustained by an employee of a cannabis dispensary who sustained a fractured hip in an altercation with an unruly customer. An employee, Durst, observed one of his coworkers seeking the assistance of the store’s supervisor in handling the rowdy customer. The supervisor told the customer that he would have to leave the story, but the customer persisted in his confrontational manner. Durst thought he would come to the aid of his supervisor. He later testified that he thought two employees might better convince the agitated customer to leave, so he left his work station and went to assist the supervisor.
As they were walking toward the store’s exit, the customer made physical contact with the supervisor. Durst said that he feared for the supervisor’s safety, and so he put the customer in a bear hug. In the ensuing struggle, Durst and the customer fell to the floor and Durst fractured his hip.
Durst sought workers’ compensation benefits for his injuries, but the insurer denied the claim. A hearing officer reversed the insurer’s determination and the employer and carrier appealed. At a hearing before the appeals officer, the employer introduced a one-page excerpt from the company policy containing a workplace violence prevention policy that provided, in part, that if appropriate, employees were to call local law enforcement; they were not to place themselves in peril. At the hearing, Durst acknowledged that he was aware of the employer’s policy.
The appeals officer then reversed the hearing officer’s decision, thereby denying Durst’s claim for industrial insurance benefits. In relevant part, the officer found that Durst had “inserted himself” into the situation, that he had “escalated the situation from words into a physical altercation with the customer,” and that Durst had placed himself in peril when he grabbed Lester. In the findings, the appeals officer stressed that Durst had not been required, as part of his work duties, to render assistance had his belief that Dolan was about to be punched, been correct. The appeals officer ultimately concluded that Durst did not establish a compensable injury arising out of the incident.
The appellate court reversed the appeals officer’s decision, finding that the officer had focused too narrowly on an employee’s work-related duties and had not considered the totality of the circumstances in determining if the employee’s injury had arisen from a risk of the employment. Quoting extensively from Larson’s Workers’ Compensation Law, the court said the case must be remanded for a proper determination as to whether the employee’s actions in trying to restrain the customer had been undertaken in good faith in an effort to assist a co-employee in the latter’s performance of his work.
Durst v. Silver State Cultivation, 2022 Nev. App. Unpub. LEXIS 67 (Feb. 17, 2022).
In various court filings, Donald Weed alleged, among other things, that he was illegally discriminated against and retaliated against by a supervisor after a medical condition sidelined him for a short period. In relevant part, in February 2019, Weed began experiencing pain in his groin and learned he had a hernia, unrelated to his work. Weed scheduled surgery for the end of March and submitted paperwork to Spraying Systems so he could take leave under the Family and Medical Leave Act. Weed expected to return by the end of April, but he developed a hydrocele (swelling caused by fluid collecting) in one of his testicles, leading to excruciating pain. These complications pushed Weed’s return to May 13. Weed’s doctor recommended a two-week, twenty-pound lifting limit upon his return. But he continued to experience pain, especially when using the bathroom, until at least August 2019.
In a deposition, Weed later testified that on the day that he returned to work, he looked in on his supervisor and was told to sit down in the supervisor’s office. Weed contended that the supervisor immediately started yelling, demanding to know why Weed “was out for so long” and “at least ten times,” told Weed that “he could kick [his] ass.” Weed said he started to panic and said something to the effect of “I don't think you'll do that.” Weed alleged that the supervisor then threatened to “grab [Weed] by [his] swollen testicle, squeeze it, and kick [his] ass.” Weed then filed a multi-count complaint in New Hampshire state court, which was removed to federal court.
The U.S. District Court Judge found that several of Weed’s claims involved triable factual issues that must be reserved for the jury. Spraying Systems’ motion for summary judgment was, therefore, denied.
Weed v. Spraying Sys., Co., 20-cv-731-PB, 2022 U.S. Dist. LEXIS 117394 (D.N.H. Jul. 5, 2022).
Lovato, Bustos, and Case were employed on a construction project at F.E. Warren Air Force Base near Cheyenne, Wyoming. Case operated a truck which transported wet concrete to the job site, and Lovato worked with a crew forming and finishing the wet concrete. Bustos was a foreman on the job and acted in a supervisory role. On the date of injury, Bustos directed both Case and the finishing crew to move to a new concrete pour site. Bustos and Lovato walked in front of Case’s concrete truck. Bustos waved to Case, signaling him to move the truck forward. As he drove, Case felt a bump and thought he had hit a curb or a concrete form with the truck. In fact, he had run over Lovato, injuring his foot, leg, back, and shoulder. Case said he did not see Lovato in his truck’s path, and he admitted to using his cell phone to call the concrete or ‘batch’ plant. He then also admitted that at the time of the accident, he “possibly” might have been talking to his girlfriend, and not paying attention to his path.
Lovato received workers’ compensation benefits for his injuries but also sued Case and Bustos, claiming they were liable as his co-employees “for reckless, willful, wanton and/or reprehensible conduct.” Bustos settled his dispute with Lovato and was dismissed from the action. Case moved for summary judgment, claiming he was immune from civil liability because his actions were not willful and wanton. The district court granted Case’s motion for summary judgment, and Lovato appealed. The Wyoming Supreme Court affirmed, holding that Lovato had not presented evidence that Case acted in reckless disregard of a known and highly probable risk to the victim. The district court properly granted summary judgment because Lovato failed to establish a genuine issue of material fact as to whether, pursuant to Wyo. Stat. Ann. § 27-14-104(a), Case was aware, or should have been aware, that his conduct under the circumstances was highly likely to result in harm.
Lovato v. Case, 2022 WY 151 (Dec. 1, 2022).