Good News: Overall Reduction in Violent Crime, “In” and “Out” of the Workplace
With the stalled economy, high unemployment (and even higher levels of underemployment), record budget deficits at both the federal and state levels, under-water mortgages, the Greek debt crisis, and the cost of gasoline at the pumps, those in charge of our public policy search diligently for hints of good news. One bright spot appears to be a significant reduction in recent years in the rate of violent crime. Indeed, over the past 20 years, the country’s murder rate has fallen by almost one-half—from 9.8 to 5.5 per 100,000 population [see Centers for Disease Control and Prevention, [Assault or Homicide Fast Stats]. That still means some 17,000 persons were murdered within our borders last year, but hey, a reduction’s a reduction.
One would hope this reduction in violent crime would be echoed within the workplace and, indeed, it has been. According to the Bureau of Labor Statistics (BLS), there were 1,080 homicides at work in 1994 [Census of Fatal Occupational Injuries]. By 2009, the number had fallen to 542. One of those 542, unfortunately, was Mariela Paredes, a dental office employee in Simi Valley, California.
Recent Homicide Decision by the California WCAB
On July 1, 2009, Mariela Paredes was fatally shot by her estranged husband at the office where she worked. Three other employees were less seriously wounded. In Paredes v. Ralph J. Maiello DDS, Inc. (Free Download), the California WCAB panel held that Applicant, the guardian ad litem for Ms. Paredes’ minor child, was not entitled to an award of death benefits stemming from the incident, when the shooting was purely personal and had no relationship to Decedent’s employment.
The fatal incident actually began several months prior to the shooting, when Decedent’s husband, Jaime Paredes, discovered through office gossip that his wife was having an affair with her co-worker, Herman Hernandez. Mr. Paredes confronted his wife about the affair after he had obtained cell phone records revealing conversations between her and Hernandez. Mr. Paredes subsequently threatened to kill Hernandez, if he found out who he was, and attempted to discover Hernandez’ identity by asking Decedent’s co-workers. Although Decedent’s co-worker Alejandra Carpio heard a rumor that Mr. Paredes’ friend was going to come to the office and “do something,” Decedent assured Ms. Carpio that nothing was going to happen. Hoping to confront Decedent and Hernandez together at work on the date of the shooting, Mr. Paredes entered Defendant’s dental office and shot Decedent multiple times. Hernandez was not in the office at the time of the shooting.
At trial, the lead homicide detective in the matter, Jay Carrott, testified that it was his opinion that Mr. Paredes intended to kill everyone in Defendant’s office, that Mr. Paredes could have killed his wife anywhere, and that, based upon his interviews, Ms. Carpio was not aware of any immediate threat that Mr. Paredes would kill Decedent at her workplace. On 11/17/2011, the WCJ issued a Findings and Award, finding that Decedent’s death did not arise out of her employment.
Applicant sought reconsideration, contending in relevant part that Defendant knew about a potentially dangerous situation but did nothing to prevent it, that there was a connection between Decedent’s employment and her death because the workplace was the only place where the shooting could have occurred, and that gossip did not cause the injury.
In his report recommending that reconsideration be denied, the WCJ noted that there was insufficient evidence to support a conclusion that Defendant had prior notice that a dangerous incident could occur, as there was no specific threat of imminent danger of attack made directly to Defendant by Mr. Paredes and Decedent did not express any concern to Defendant about her safety. Additionally, although Ms. Carpio testified that she was concerned about the rumor she heard regarding Mr. Paredes’ friends coming to the office, the WCJ pointed out that Ms. Carpio was not aware of any imminent danger at the workplace.
Despite Applicant’s contention to the contrary, the WCJ was not persuaded that the shooting could not have occurred anywhere other than the office where Decedent and Mr. Hernandez could be found together. The WCJ noted that there were other instances, away from work, that Decedent could be found with Mr. Hernandez. Further, the testimony of Mr. Carrott indicated that confronting Decedent and Mr. Hernandez together in the office was a matter of convenience; the office was simply a stage for the event.
The WCJ explained that to support a finding of compensability there must be some relation between the injury and the employment, as described by case law addressing personally motivated workplace injuries. Here, there was no such relation. The WCJ found that Mr. Paredes’ motive for killing his wife was purely personal and unconnected to her job duties. According to the WCJ, the fact that Mr. Paredes shot other employees in his heightened emotional state did not change the non-industrially motivated nature of the attack. The WCJ clarified that, in light of the chain of events leading to the shooting in this case, he did not intend to infer that Decedent’s death was solely caused by office gossip; however, he observed that the court of appeal in Atascadero Unified School District v. W.C.A.B. (Geredes) (2002) 98 Cal App. 4th 880, 120 Cal. Rptr. 2d 239, 67 Cal. Comp. Cases 519, held that an injury caused by office gossip about an employee’s personal life is not compensable if the gossip has no relationship to the employee’s job.
The WCAB denied reconsideration and adopted and incorporated the WCJ’s report, without further comment on the issues raised.
WCAB’s Decision Is Consistent With Majority Rule
The WCAB’s decision is entirely consistent with the majority view that when the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment [see Larson’s Workers’ Compensation Law, § 8.02]. Ms. Paredes was not murdered because of her work at the dental office. She was murdered by a jealous husband. That the other adulterous person was himself a dental office employee was insufficient to serve as a causal connection to the murder.
Decisions awarding death benefits abound where the employment increases the risk of harm—where, for example, the employee serves as a sheriff, marshal, or prison guard, where the nature of the employee’s job is to carry large sums of money, or where the employment requires the employee to travel through a dangerous locality [see Larson’s Workers’ Compensation Law, § 8.01]. That the employment provides an opportunity for the crime is generally insufficient. To support an award of compensation, a time and place connection with the workplace is insufficient. The crime must be causally connected to the work. As the WCJ indicated, here the dental office served only as a stage.
According to the BLS, in the year that followed Mariela Paredes’ murder, the number of workplace homicides continued to decline, falling to 506. That’s 506 too many, of course.
© Copyright 2012 LexisNexis. All rights reserved. This article will appear in an upcoming issue of California WCAB Noteworthy Panel Decisions Reporter.
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