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CALIFORNIA COMPENSATION CASES
Vol. 88, No. 9 September 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...
Last November, I had the pleasure of speaking at the 24th Annual National Workers’ Compensation and Disability Conference in Las Vegas. My session was a spin-off of what has become one of my most popular annual blog offerings—a presentation of truly bizarre workers’ compensation cases decided during the year. Several years ago, my annual list was featured on National Public Radio’s Saturday morning show, “Wait, Wait, … Don’t Tell Me.” As I mentioned in Las Vegas, my bizarre case blog is, in many respects, a reenactment of 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. Our respective lists would usually overlap a bit, but each of enjoyed hearing the facts of a case that we’d missed. One thing we always kept in mind: 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 (plus a bonus) bizarre workers’ compensation cases for 2015. 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 email@example.com.
(Publisher’s Note: Citations link to Lexis.)
CASE #1: Employee Terrorized in Employer’s “Active Shooter Drill”
Allegations by a nursing home employee that her employer secretly arranged an “active shooter drill” in which an on-duty Carbondale, CO police officer posed as a “gunman,” that the officer burst into the work area and held the plaintiff-employee hostage at gunpoint as she cried and begged for her life, and that only then did the officer tell her in a hushed tone that it was a “drill,” were sufficient to raise an issue of fact as to whether the incident was reasonably incidental to the conditions of the employee’s work. Accordingly, a federal judge refused in relevant part to grant the employer’s motion to dismiss the employee’s civil action against the employer on exclusive remedy grounds. According to the complaint, the employer purposely chose the plaintiff-employee to be the “victim” in the incident. The employer contended that the incident was part of a safety program and that any injuries arose out of and in the course of the employment. The employee countered that the drill and the circumstances related to it were not part of her job duties or connected to her work-related functions and that there was nothing about the nature of her employment that either allowed or required the employer’s officials to intentionally terrorize and place employees like the plaintiff in fear for their lives. The judge acknowledged that in Colorado an employee need not be engaged in the actual performance of work at the time of injury in order for the course of employment requirement to be satisfied. Nevertheless, the judge said the injury had to arise out of a risk that was reasonably incidental to the conditions and circumstances of the particular employment. Such a determination was factual and should be made by a jury, not the judge. See Meeker v. Life Care Ctrs. of Am., Inc., 2015 U.S. Dist. LEXIS 58761(D. Co., May 5, 2015). See generally Larson’s Workers’ Compensation Law, § 100.04.
CASE #2: California Worker at Illegal Marijuana Cultivation Business Awarded Benefits as “Covered Residential Employee”
In a split decision, the California Workers’ Compensation Appeals Board held that a claimant suffered a compensable injury in the form of T–4 paraplegia and bilateral lower extremity paralysis when he was shot in the chest while working near the home of his purported employer, who operated several marijuana growing businesses, including one at the grower’s residence. Claimant saw an intruder near the grower’s marijuana plants, informed his “employer” of the intrusion, followed the employer back out into the area where the intruder had last been seen, and was shot in the chest. The majority of the WCAB held that even if the employer was engaged in the marijuana growing business illegally, there was substantial evidence that applicant’s primary job duties were incidental to the ownership and maintenance of the employer’s premises. Accordingly, claimant fell within the definition of a covered residential employee under Calif. Labor Code § 3351(d). That the claimant took the “job” so that he could learn the marijuana business and emulate the marijuana grower’s lifestyle—growing marijuana during the summer and skiing during the winter—was not controlling, said the WCAB. Nor did it matter that part of his “pay” was in the form of free marijuana. The majority stressed that the claimant was paid $500 per week and given free room and board for cleaning, light construction and maintenance duties. Commissioner Lowe dissented, siding with the Uninsured Employers Benefits Trust Fund which, following the majority’s decision, was saddled with the expense of treating the claimant’s severe medical issues. Commissioner Lowe would find instead that the claimant was not a residential employee because he was employed to assist in an illegal marijuana growing business. According to Lowe, even if the grower had homeowners’ coverage, the policy would not have covered employees of defendant’s marijuana business. See Arnold v. Pingrey, 2015 Cal. Wrk. Comp. P.D. LEXIS 487 (Aug. 24, 2015), writ of rev. den. Nov. 19. 2015. See generally Larson’s Workers’ Compensation Law, §§ 66.05, 72.03.
CASE #3: Bringing Home the Bacon—Injuries Sustained in Collision With 400-lb. Wild Hog Found Compensable
Substantial evidence supported the Commission’s finding that injuries sustained by a Mississippi casino employee when her car struck a 400-lb. wild hog arose out of and in the course of her employment, held a Mississippi appellate court. The “collision” took place at 4:00 a.m., when the casino employee and her sister were returning home from an Alabama bingo parlor. The employee, an off-property director of player development for the Mississippi casino, had recently moved to Alabama and worked from her home. She contended that at the time of the accident, she was returning from conducting market research of a competing gaming facility—a duty within her job description. The employer admitted the employee had no fixed hours of work and often worked long hours. It contended, however, that the employee was not really carrying out a work task when the accident happened. They pointed to proof that the employee was with her sister at the bingo parlor, it was 4 a.m. when they left the facility, and her sister was driving when they wrecked. When coupled with the facts that the employee did not submit an itinerary, travel vouchers, or a marketing report, and did not immediately seek workers’ compensation benefits, the employer suggested the outing was personal, not business related. The employee countered that she was new to the area and had asked her sister, who had lived there for a long time, to drive, that she didn’t immediately file a workers’ compensation claim because she was unfamiliar with the process, and that she had not sought earlier reimbursement since she thought she was to do that on a quarterly basis. The employee’s boss admitted that the Alabama bingo halls were a “potential threat” to the employer’s business because a large part of the Mississippi casino’s traffic was from central Alabama. The appellate court acknowledged there was a conflict in the evidence, but indicated it was for the Commission to resolve. It had done so, in favor of the employee. See Choctaw Resort Development Enterprise v. Applequist, 2015 Miss. App. LEXIS 214 (Apr. 21, 2015). See generally Larson’s Workers’ Compensation Law, § 5.01.
CASE #4: Mother’s Injuries at Hands of Knife-Wielding Son Not Compensable
A divided Supreme Court of Pennsylvania held that the state’s Commonwealth Court erred in finding that a claimant met her burden of proving that she sustained a work-related injury in the course and scope of her employment when she was brutally stabbed by her son while she was sleeping in her bedroom. Claimant was paid an hourly wage under a state-funded program that provided attendant care for her thirty-three year old son, who suffers from significant health issues related to his long-term drug use. The son, wielding a butcher knife, attacked and stabbed his mother as she lay in her bed at approximately 1:30 a.m. one morning. There was some evidence that the two had a disagreement a few hours earlier regarding the mother’s food preparation; the son had never attacked her before. The majority of the Supreme Court, reversing a lower appellate court, said that the claimant had not shown her injuries were within the type of harm the Legislature intended to provide compensation for under the Workers’ Compensation Act. The majority specifically agreed with the Commonwealth Court’s dissent, which had stated that it “defied logic” to find this case to have involved a work-related injury. See O’Rourke v. Workers’ Comp. Appeal Bd. (Gartland), 2015 Pa. LEXIS 2420 (Oct. 27, 2015). See generally Larson’s Workers’ Compensation Law, § 84.04.
CASE #5: Internet Search for Registered Sex Offenders Leads to Workplace Assault
A Nebraska appellate court affirmed the denial of workers’ compensation benefits for an employee who sustained injuries to his nose, clavicle and shoulder when he was assaulted on the employer’s premises by a co-worker wielding a brass hammer. Prior to the incident, the two had little contact. They had never exchanged angry words nor been involved in any physical altercations. The attacking co-worker had, however, performed an Internet search and discovered that the other employee was named on the list of registered sex offenders. The attacking co-worker assaulted the other employee and called him a “chimo” (short for child molester). The injured employee sought workers’ compensation benefits, contending that in as much as the only contact the two men had was at the workplace, the employee’s injuries arose out of and in the course of the employment. Quoting Larson’s Workers’ Compensation Law, the appellate court disagreed. Where the animosity between the two workers was imported from domestic or private life, and not exacerbated by the employment, the assault did not arise from the employment. See McDaniel v. Western Sugar Coop., 2015 Neb. App. LEXIS 1218.02.
CASE #6: $20,000 in Medical Expenses Ordered Paid by Employer for Simple Muscle Strain Due to Lack of Interpreter
An employer must pay almost $20,000 in medical expenses that resulted when a worker—a U.S. citizen—but whose native language is Spanish and who could not read or write English, could not communicate effectively with medical staff who in turn misunderstood his complaints of chest pain as a cardiac event, rather than minor muscle strain. The worker complained of chest pain after he picked up a turkey weighing some 80 pounds and lifted it onto a tray. Fearing the worker might be suffering a heart attack, medical personnel performed EKG, CPK, and other testing, and eventually transferred the worker to a major hospital for additional tests and medical work. There the worker underwent a cardiac catheterization that showed he had normal coronary articles with normal LV function. After the expensive treatment, the worker returned to work without missing any time and suffered no further complications. The employer refused, however, to pay the medical bills. The Commission ordered them paid and the employer appealed. The court affirmed in relevant part, noting that the employer was immediately aware of the worker’s injury and was not prejudiced. The court added it was not unreasonable for emergency and medical personnel to have conducted tests to rule out a heart attack since the consequences of that situation would have been serious. The Commission’s decision requiring the employer to underwrite the cost was supported by substantial evidence. See Gonzales v. Butterball, L.L.C., 2015 Mo. App. LEXIS 139 (Feb. 11, 2015). See generally Larson’s Workers’ Compensation Law, § 94.02.
CASE #7: Horseplay Injury During Lull in Workday Found Compensable
The Supreme Court of South Dakota awarded workers’ compensation benefits to a construction worker who sustained a severely broken leg when he tried to jump a trench while running at a construction site. The state’s Department of Labor and a circuit court had earlier denied the claim, finding that at the time of the accidental injury, the worker had been engaged in impermissible horseplay and, therefore, had deviated from the employment. The Supreme Court held the Department and the lower court had failed to consider sufficiently the fact that the horseplay arose out of a lull in the workday. Quoting extensively from Larson’s Workers’ Compensation Law, the Court indicated that when there are no duties to perform, there is no work to abandon. The injury occurred on a hot day, when several workers had retreated to an air-conditioned truck to cool off. The claimant wanted access to the cool air and tricked one of the co-workers into giving up his spot inside the truck by telling him someone on the other side of the work site needed to talk to him. Later, when the claimant saw the worker he had tricked, the claimant started to run and the other worker began to chase him. As claimant jumped a trench, he landed awkwardly and broke his leg. The Court stressed that under the four-part Larson test, the injury arose out of and in the course of the employment. See Petrik v. JJ Concrete, Inc., 2015 SD 39, 2015 S.D. LEXIS 75 (June 3, 2015). See generally Larson’s Workers’ Compensation Law, § 23.01.
CASE #8: Worker Injured Having “Kick Ass Time” May Not Sue Co-Worker
An Ohio restaurant employee may not pursue a negligence action against a co-worker for personal injuries sustained in a golf cart accident that occurred on an island resort where the women, along with other co-workers, attended their employer’s “Kitchen Managers University.” The accident occurred as the plaintiff and others were riding in a golf cart driven by the defendant employee. Heading toward a bar to continue their revelry—most, if not all in the group had already consumed multiple drinks—the defendant apparently made a sudden swerve, causing the cart to turn over, pinning the plaintiff’s leg underneath. The plaintiff suffered a severe ankle break. The plaintiff sued the defendant, among others, claiming defendant’s negligent actions caused injury. The trial court sustained the defendant’s motion for summary judgment, holding that the plaintiff’s injuries arose out of and in the course of the employment. The appellate court affirmed. It noted that the employer had instructed the workers to come to the island resort via a ferry and not to bring their personal vehicles since golf carts were the preferred method of travel at the resort. It also observed that the employer had stocked the meeting facility with food and beverages (including alcoholic beverages) and had provided a daily itinerary that ended with social time “downtown.” The court held that the undisputed evidence established that the employer not only consented to or acquiesced in the consumption of alcohol and the use of carts to provide transportation between the resort and the bars—it encouraged such conduct. The itineraries supplied to attendees announced “We can’t wait to see all of you and have a kick ass time in the Key West of the North!!!!” See Sims v. Marren, 2015-Ohio–2232, 2015 Ohio App. LEXIS 2148 (June 5, 2015). See generally Larson’s Workers’ Compensation Law, § 22.04.
CASE #9: Secretary’s PTSD Claim Connected With Patient’s Suicide Established Since She Was Not Mere Bystander
A secretary at a medical facility, who claimed she suffered from posttraumatic stress disorder after she responded to the suicide of a patient, is entitled to workers’ compensation benefits, held a New York court. Affirming a decision of the state Board, the court held that psychological injuries caused by witnessing the aftermath of a suicide could be compensable where the claimant was an active participant in the tragedy, as opposed to a mere bystander. Evidence showed that a patient leapt from a window at the facility where claimant worked and impaled himself on picnic tables outside claimant’s office. She was one of the first workers to reach the scene and, despite her lack of medical training, her supervisor directed her to retrieve an oxygen tank for the patient. The secretary did so, but began to feel anxious and hyperventilate and “lost it” altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient. Substantial evidence supported the Board’s determination that claimant was an active participant. See Demperio v. Onondaga County, 126 A.D.3d 1250, 6 N.Y.S.3d 690 (3rd Dept. 2015). See generally Larson’s Workers’ Compensation Law, § 56.04.
CASE #10: McDonald’s Manager Saves Bag of Fries, But Sustains Neck Injury
A Virginia appellate court affirmed an award of workers’ compensation benefits to a fast food manager, working at a McDonalds restaurant, who testified that she felt a pop in her neck followed by a burning pain when a small bag of French fries slipped from her hands and she impulsively bent over quickly to catch the bag before it hit the floor. The employer had denied the claim, citing Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989), in which the court held that the simple act of bending over, absent any unusual or awkward movement does not provide a sufficient nexus to the employment to meet the “arising out of” standard. The court stressed that in the instant case, however, the record revealed more than mere bending. When the bag of fries slipped, the manager was required to bend, jerk, and twist, and to do so quickly. The combination of these motions was done to advance employer’s business—timely serving the drive-thru customers without throwing away the fallen food and preparing new food. The court acknowledged that people routinely bend in their everyday activities, but here the combination of quickly bending, twisting, and jerking as necessitated by the job-related circumstances was sufficient to remove the actions from a “risk of the neighborhood” to a natural incident of the work. See Gene Forbes Enters. v. Cooper, 2015 Va. App. LEXIS 195 (June 9, 2015). See generally Larson’s Workers’ Compensation Law, § 3.03.
BONUS CASE #1: Employer Saddled With $21,000 Life Flight Bill for Employee’s Cut Finger
An uninsured employer is required to pay $21,201 for Life Flight helicopter services in connection with injuries sustained by a part-time irrigator at the employer’s farm. The employee severely cut the tip of his left “pinky” finger when his hand slipped into the chain of a motor. Following the accident, the employee drove himself to the home of an off-duty police officer, who then called 911. EMTs arrived and made a determination that perhaps the tip of the finger could be reattached. They, therefore, summoned Life Flight. Efforts to reattach the tip later were, however, unsuccessful. The employer contended that the Life Flight trip was a needless expense and that it was not medically necessary. The high court disagreed. The high court acknowledged that with the benefit of hindsight, the decision to fly the employee to the hospital might not have been made. Judging the issue with hindsight was not, however, the appropriate standard. Given the circumstances, the high court said substantial and competent evidence supported the Commission’s decision. See Chavez v. Stokes, 2015 Ida. LEXIS 175 (July 7, 2015). See generally Larson’s Workers’ Compensation Law, § 94.03.
BONUS CASE #2: Great Dane & Steep Trails Don’t Mix
In a case from California, a split WCAB panel rescinded the WCJ’s decision and held that the applicant police officer did not sustain a compensable injury while hiking off-duty with his large dog, a Great Dane. The dog pulled on the leash, causing the applicant to tumble 60 feet down a hill, strike a boulder, shatter his right shoulder, break four ribs and puncture his lung. The WCAB panel reasoned that compensation claims stemming from off-duty recreational/athletic activities are barred under Labor Code § 3600(a)(9) if the employee’s subjective belief that the activity during which the injury occurred was an expectancy of his employment, was unreasonable. The applicant failed to prove that it was objectively reasonable for him to believe that his individual fitness plan with this employer, the City of Vacaville, covered hiking on a steep, unmaintained trail. See Simon v. City of Vacaville, 2015 Cal. Wrk. Comp. P.D. LEXIS 289. See generally Larson’s Workers’ Compensation Law, § 22.02.
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