By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
For readers who may not be familiar with the Workers’ Compensation...
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CALIFORNIA COMPENSATION CASES
Vol. 88, No. 11 November 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
Nearly two decades ago Senate Bill 899 was enacted and ushered in a...
LexisNexis has selected some recently issued noteworthy IMR decisions that illustrate the criteria that must be met to obtain authorization for a variety of different medical treatment modalities. LexisNexis...
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.
For the past five or six years, I’ve shared with readers my annual list of bizarre workers’ compensation cases for the prior year. In doing so, I reenact, at least 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. Usually 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. The cases mentioned below aren’t law school hypotheticals; they 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 2014. I’m gratified that the annual list’s popularity has grown over the years. It’s even been featured on National Public Radio’s Saturday morning show, “Wait, Wait … Don’t Tell Me.” If you know of other cases that should have been included in this year’s list, let me know. Send them—along with questions or comments—to email@example.com.
Publisher’s Note: For reprint permission of this article, contact Robin.E.Kobayashi@lexisnexis.com.
CASE #1: Undocumented Worker’s Fatal Heart Attack While Fleeing Immigration Service Raid on Employer Was Not CompensableThe death of a lumber mill employee, who came to the United States from Mexico, who had used falsified documentation to obtain employment, and who suffered a fatal heart attack as he and other undocumented workers ran from the employer’s premises in an effort to avoid what they thought was an imminent raid by officials from the Immigration and Naturalization Service, did not arise out of the employee’s employment, held the Court of Appeals of North Carolina. Moreover, the appellate court agreed with the state’s Industrial Commission that competent evidence supported the state Industrial Commission’s finding that there was no increased risk to the employee of an immigration raid as part of his employment with the employer; the employee’s death was caused by a risk which was neither “inherent or incidental to the employment” nor a risk to which the employee “would not have been equally exposed apart from the employment.”See Paredones v. Wrenn Bros., 2014 N.C. App. LEXIS 468](May 6, 2014).See generally Larson’s Workers’ Compensation Law, 4.02, 66.03
Case #2: Family Argument Over Nigerian Investment Scam Turns Ugly, Injury Claim Not CompensableAn Iowa appellate court affirmed a finding that a worker’s injuries were not accidental—and, therefore, not compensable—when she fell to the floor after being “bumped” by her brother, who was also a co-worker. Evidence suggested the employer was owned by the worker’s husband and the worker’s brother, that her husband had been convicted of tax fraud in the wake of his use of company funds in a Nigerian investment scam, and that the worker’s brother had assisted in the prosecution of the case, which resulted in the worker’s husband serving eight months in a federal prison. Further evidence suggested that following her husband’s conviction, the worker had apparently asked a friend to find her brother and “break his legs,” that the worker and her husband tried to have criminal charges brought against the worker’s brother for an incident involving another relative, and finally, after the worker’s “fall,” both the worker and her husband told law enforcement officials that the worker’s brother intentionally knocked the worker down. The court indicated the evidence was sufficient to persuade a reasonable person that the worker’s brother acted intentionally and for reasons personal to the worker.See Dillavou v. Plastic Injection Molders, Inc., 2014 Iowa App. LEXIS 873 (Aug. 27, 2014).See generally Larson’s Workers’ Compensation Law, § 42.01
CASE #3: Food Store Manager’s Murder by Jealous Assailant Arose Out of and In Course of EmploymentA Florida appellate court held that fatal injuries sustained by a food store manager who was struck and run over by a car driven by a man who claimed to have been reacting to the decedent’s alleged sexual harassment of the man’s girlfriend, who worked as a cashier at the food store, were held to have arisen out of and in the course of the employment in spite of the personal animosity that triggered the event. Reversing a decision of a state Judge of Compensation Claims and quoting Larson’s Workers’ Compensation Law, the appellate court found that the nature of the work environment—at the time of the attack, decedent was collecting shopping carts in the employer’s parking lot—did, indeed, place the decedent at risk incident to the hazards of his industry and that while the decedent had no apprehension of personal animosity of a co-worker’s jealous boyfriend, there was no question that the “genesis” for the dispute giving rise to the fatal injuries was in the workplace.See Santizo-Perez v. Genaro's Corp., 138 So. 3d 1148 (Fla. 1st DCA 2014).See generally Larson’s Workers’ Compensation Law, §8.01
CASE #4: Gun-Wielding Store Manager’s Death While Attempting to Stop Robber Found CompensableA Pennsylvania appellate court, reversing a decision of the state’s Workers’ Compensation Appeals Board, determined that a convenience store manager did not abandon his employment and, in fact, was actually furthering the business affairs of his employer when he was severely injured—the injuries eventually resulting in his death—while attempting to stop a thief from leaving the employer’s premises after an attempted robbery at the store. The employer contended that the employee, who was struck and run over by an automobile being driven by the would-be robber as the latter fled the scene, had violated a positive work rule by possessing a gun on the employer’s premises. The employer also contended that the employee “had embarked on a vigilante mission” to apprehend the fleeing suspect in an already foiled robbery attempt, that the employee and others had been told, “not to be heroes,” and that the actions of the employee removed him from the course and scope of the employment. The employee’s dependents countered that there had been many robberies in the area, that the employee had actually shot a thief robbing the employer’s store in 2007, and that the employer knew that the employee carried the gun and condoned the action. The appellate court emphasized that the entire incident had been fast-moving, that the employee had been pursuing his employer’s interests—not his own—and that the employee’s pursuit of the robber was not so far removed from his duties as a manager as to constitute a deviation from the employment.See Wetzel v. Workers’ Comp. Appeal Bd. (Parkway Service Station), 92 A.3d 130 (Pa. Commw. Ct. 2014).See generally Larson’s Workers’ Compensation Law, §§ 28.01, 33.01
CASE #5: Assistant Manager’s PTSD Claim Tied to Murder-for-Hire Scheme Found CompensableA New York appellate court, affirming a decision of the state’s Workers’ Compensation Board, held that the exacerbation of a supermarket assistant manager’s preexisting PTSD arose out of and in the course of his employment when, after he called a coworker at her home to discuss a work-related matter, the coworker’s husband, who thought that the manager and his wife must be having an affair, targeted the manager in an unsuccessful murder-for-hire scheme. The irate husband also contacted the assistant manager’s supervisor regarding the suspected affair, resulting in an investigation and the subsequent decision by the assistant manager to seek a transfer to another store. The appellate court indicated that if there was any nexus, however slender, between the motivation for the assault and the employment, an award of workers’ compensation benefits was appropriate. Here, the work-related phone call from claimant to his coworker’s home was the basis for the subsequent harassment of claimant at his place of employment, the employer’s internal investigation and claimant’s request for a transfer—all of which exacerbated claimant’s preexisting PTSD.See Matter of Mosley v. Hannaford Bros. Co., 119 A.D.3d 1017, 988 N.Y.S.2d 303(2014).See generally Larson’s Workers’ Compensation Law, § 8.02
CASE #6: Recreational Drug User Entitled to Inpatient Care to Treat Worsening Drug Problem Following Robbery and Work-Related ShootingA retail employee was shot multiple times by assailants who returned to the employee’s place of business after a robbery in apparent retaliation for the employee’s reporting the incident to police. The employee claimed to have developed PTSD as a result of the incident. The Supreme Court of Nebraska held that the employee was not only appropriately awarded medical and disability benefits for his PTSD condition, but the employee was also entitled to inpatient care to treat a pre-existing non-prescription drug problem that the employee claimed had worsened due to his anxiety over the shooting. Evidence suggested that even after the shooting, the assailants contacted the employee yet again, threatening the employee and his family. The court held that the employee, who admitted he was a recreational drug user prior to the shooting, was entitled to additional benefits to treat his worsening addiction.See Kim v. Gen-X Clothing, Inc., 287 Neb. 927, 845 N.W.2d 265 (2014).See generally Larson’s Workers’ Compensation Law, § 66.03
CASE #7: Attorney’s “Rainmaking and Networking” in Connection With Harley-Davidson Rally Was Not Sufficiently Connected to Employment to Support ClaimA Wisconsin appellate court affirmed a finding by the state’s Labor and Industry Review Commission that concluded an attorney was not performing services growing out of and incidental to his employment at the time he was involved in a motorcycle accident that rendered him a quadriplegic. The attorney contended his compensation at the firm was based on two components: (a) the work he performed; and (b) clients brought into the firm, regardless of who performed the legal work. He contended that in order to stir up business for the law firm he joined a poker group comprised of small business owners, including Franken, a real estate appraiser. The law firm reimbursed him for snacks he supplied for the poker nights and the attorney indicated his participation was part of the overall marketing that he did for the firm. He sustained serious injuries while riding Franken’s motorcycle as the two traveled, along with their wives, to a Harley-Davidson motorcycle rally. The appellate court agreed with the Commission’s determination that even if the poker games could be considered client entertainment, it did not necessarily follow that every trip or activity the attorney and Franken undertook together was client entertainment or business-related networking. Based on the court’s review of the record, it concluded that there was credible and substantial evidence to support the Commission's conclusion that the motorcycle trip was “simply a social outing among friends who occasionally did business together.”See Westerhof v. State Labor and Indus. Review Comm’n, 354 Wis. 2d 621, 848 N.W.2d 903 (2014).See generally Larson’s Workers’ Compensation Law, § 22.01
CASE #8: Attendant Care-Providing Mother's Injuries at Hands of Knife-Wielding Son Are CompensableReversing a decision by the state’s Workers’ Compensation Appeal Board, a divided Pennsylvania appellate court applied the bunkhouse rule to support an award of benefits to a woman employed under a state-funded program to provide attendant care services at her residence for her adult son when she was brutally attacked by the knife-wielding son while she slept. The son, who needed care because his leg had been amputated, had previously suffered from drug dependency, but had shown no signs of violent behavior. Quoting Larson’s Workers’ Compensation Law, the majority of the appellate court reasoned that the mother’s attendant care duties required that she be on the premises. That she was sleeping and not performing actual services at the time of the attack did not control.See O’Rourke v. Workers' Comp. Appeal Bd. (Gartland), 83 A.3d 1125 (Pa. Commw. Ct. 2014).See generally Larson’s Workers’ Compensation Law, § 24.03
CASE #9: Traveling Employee Rule Doesn’t Save Drunken Employee’s Dune Buggy ClaimA claims adjuster who had been assigned remote duties in connection with the devastation to Galveston Island caused by Hurricane Ike, and who drank one evening to the point of intoxication, did not remain within the scope of employment under the traveling employee doctrine, held a Washington appellate court. Accordingly, injuries sustained when he apparently fell from some sort of vehicle while “riding in [the] dunes” were not compensable. The court acknowledged that a traveling employee is generally considered to be in the course of employment continuously during the entire trip. There is an important exception, however, if the employee engages in a distinct departure on a personal errand. The court added that the proper inquiry in determining if a traveling employee has left the course of employment is “whether the employee was pursuing normal creature comforts and reasonably comprehended necessities or strictly personal amusement ventures.” The employee admitted that on the evening of the injury he had been drinking heavily and could not really recall the circumstances leading up to the incident. The court held that becoming intoxicated was not necessary to the employee’s health and comfort. Moreover, without evidence as to how the accident occurred, any theory offered by the employee was purely speculative.See Knight v. Department of Labor and Indus., 181 Wn. App. 788 (2014).See generally Larson’s Workers’ Compensation Law, § 25.01
CASE #10: Court Affirms PTSD Award to Physician’s Assistant Threatened by Surgeon During Surgical ProcedureA New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that awarded workers’ compensation benefits for a stress-related injury sustained by a cardiothoracic physician’s assistant (“PA”) who contended she was threatened with physical violence by a surgeon during an hours-long procedure in the operating room. The PA sought psychiatric treatment shortly thereafter and filed a claim for PTSD and adjustment disorder. Following a hearing, the Workers’ Compensation Board concluded that claimant had sustained a compensable injury due to work-related stress. The employer contended that the surgeon’s verbal threat could not have given rise to a compensable stress claim, noting mitigating factors such as the presence of others in the operating room and the PA’s familiarity with the surgeon’s “difficult” personality. Acknowledging that in New York, in order for a mental injury premised on work-related stress to be compensable, the stress must be greater than that which usually occurs in the normal work environment, the appellate court indicated the Board’s decision was supported by the evidence. The Board found that threats of physical violence made by the surgeon constituted greater stress than that which normally occurs in similar work environments. The court said it could not “reject the Board’s choice simply because a contrary determination would have been reasonable.”See Lucke v. Ellis Hosp., 119 A.D.3d 1050, 989 N.Y.S.2d 528 (3rd Dept. 2014).See generally Larson’s Workers’ Compensation Law, § 56.04
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