The Top 10 Bizarre Workers' Comp Cases for 2010

The Top 10 Bizarre Workers' Comp Cases for 2010

 In 1987, when I first went to work for Arthur Larson, Emeritus Professor of Law at Duke, multi-talented author of countless journal articles and a number of books (e.g., two non-fiction best sellers in the 60s on the American political system), as well as his flagship, Larson's Workers' Compensation Law, I asked him what he liked about "our" subject. Without hesitation, he responded, "the facts." He said, "The law is interesting, but comp cases have some of the most unusual, quirky facts you'll ever run across." He added, "some cases are just plain bizarre. One always has to remember to approach the strange case with an appropriate level of respect; you're reading about real people, after all—real problems and real disputes. Nevertheless, some of the cases we stumble across are real 'zingers.'"

In each of the years that I worked with Arthur, in that time before blogs, he and I had a New Year's ritual. In early January, we'd sit in the music room of his and Florence's wonderful house, just off Duke's campus, on a well-named Durham cul-de-sac: Learned Place. We'd sip some nice Scotch, look back across the just-finished year, and consider major developments within Arthur's area of law. Then we'd go over a special annual list that he and I informally kept: those cases that were the most bizarre. It seemed a fitting way to look back and also to gaze ahead.

Since Arthur's death, I've continued to work closely with Lex Larson—a gifted legal scholar/author in his own right. Lex and I don't have an early January "bizarre ritual." Instead, whenever either of us runs across a case that Arthur would certainly have enjoyed, we share it with the other by phone or email. That practice serves a good purpose, but an annual gaze backward is more fun.

And so, in the spirit of Arthur and my former annual ritual, here follows my list (in no particular order) of 10 bizarre workers' compensation cases during 2010. Recognize, of course, that you may find merely curious the sorts of cases that strike me as manifestly weird, and vice versa. If you keep an annual list of your own, I'd love to hear from you. Send them to

1. NY: Assault Related to Theft of Employee's Car Was Not Compensable—Insufficient Work Connection

Claimant, an assistant store manager with the employer, had her personal vehicle stolen while she worked. A week later, as she was reporting to work, she noticed her stolen car sitting in the employer's parking lot with its engine idling. Claimant approached the vehicle and, after the driver got out of the car, the two became embroiled in a physical altercation. As they scuffled, another store employee—who knew the driver—exited the store, jumped into claimant's vehicle, and started to drive away. Claimant's assailant then ran off, jumped into the vehicle, and it sped away, driven by the other store employee.

Claimant sought workers' compensation benefits, claimant she had sustained psychological injuries. The Workers' Compensation Law Judge disallowed the claim, but the Board disagreed, ruling the injuries were sufficiently related to the employment to be compensable. The appellate court acknowledged that there was a presumption of compensability under New York's special statute, N.Y. Workers' Comp. Law § 21, but that here the presumption had clearly been rebutted by substantial evidence that the motivation for the assault was purely personal animosity between claimant and the person she discovered driving her stolen vehicle. The assailant was not a co-worker nor was the assailant connected to the employment. The Board's determination was arbitrary and, accordingly, reversed.

In the Matter of the Claim of Mary Wadsworth, Respondent, v K-Mart Corporation et al., Appellants. Workers' Compensation Board, Respondent, 2010 N.Y. App. Div. LEXIS 2831 subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 8.02.

2. OH: Injured Worker's Undisclosed Business as Taxi Driver for Amish Community Results in Forfeiture of Benefits

That members of Amish communities do not own or operate motor vehicles is well known. The Amish do not generally forbid the use of such vehicles when necessary; it is their ownership that is the problem. The Amish view is that auto ownership would tend to separate the parts of the community who could afford cars from the segment within the community who could not. Further, as Madison Avenue tells us, ownership of a 12-year-old Plymouth isn't the same as having a brand new Mercedes. Such attention to status is viewed negatively by the Amish.

An enterprising individual, Grossenbacher, recognized the tendency of the Amish to shun ownership of the vehicle, not the vehicle itself. He sought to fill the void by providing a driving or taxi service to members of the Amish community. Evidence tended to show that he charged $1 per mile and that he often earned as much as $60 per day.

Grossenbacher wouldn't have had any difficulties with the arrangement except for the fact that he was receiving permanent total disability benefits associated with a work-related injury. He did not report his business enterprise to the Ohio Industrial Commission. When the Commission found out the facts, it found Grossenbacher had engaged in sustained remunerative employment, declared that Grossenbacher had been overpaid, and ordered the overpayment be collected under the fraud provisions of the state's workers' compensation law.

Grossenbacher contended that the payment he received was a "pittance," that it was sporadic at best, and that he should not be disqualified from benefits. The Ohio appellate court disagreed. First, whether the earnings of his Amish taxi service were a pittance, or not, was irrelevant, said the court. Grossenbacher had held himself out for hire and had performed the taxi services for the entire 9-month period he drew permanent total disablity benefits. The Commission's decision was totally within statutory bounds.

State of Ohio ex rel. Eugene Grossenbacher, Relator, v. The Industrial Commission of Ohio and Wooster Manufacturing, Regal Ware, Inc., Respondents, 2010 Ohio App. LEXIS 3607 subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 39.03.

3. LA: Gun Hoax at High School Was Insufficient to Support Teacher's Claim for Compensable Mental Injury

Horrible memories of the Columbine High School shootings in 1999, the 2007 Virginia Tech massacre, and other school related violence and shootings live within the minds of many students and staff within America's educational system. In November 2007, a student burst into the classroom of a home economics teacher at a Louisiana magnet school, claiming that unidentified persons were inside the school shooting at students and personnel. The student pretended to be upset and attempted to hide. After a few minutes, the teacher asked the student if he was telling the truth, at which point, the student admitted it was all a hoax. The dismissal bell rang and the students left the classroom. The teacher then went home for the weekend. The student was expelled for his actions. Subsequent to the hoax, the teacher began to experience feelings of depression and doom. She sought treatment and was diagnosed as suffering from Post Traumatic Stress Disorder. The teacher sought workers' compensation benefits, but the workers' compensation judge dismissed her claim, finding that she had failed to prove her PTSD was caused by the hoax alone.

Under the relevant Louisiana statute, La. Rev. Stat. § 23:1021(7)(b), a mental injury could not be considered a compensable personal injury unless it was the result of a sudden, unexpected, and extraordinary stress related to the employment and was demonstrated by clear and convincing evidence. The judge found that the teacher failed to show that a practical joke, even one as distasteful as the one played here, was an extraordinary event in the course of her employment as a high school teacher. The court indicated that the record showed that the vice-principal and, more importantly, the students present during the joke found the joke to be obvious, even if it had unfortunate results. The record also revealed that both psychologists involved in the case found the teacher to be more susceptible to PTSD than normal due to a long history of emotional and physical violence. The court concluded that "[p]lainly put, the workers' compensation judge found that people of reasonable sensibilities would [not] and did not find the act to be extraordinary in the life of a high school teacher." The court concluded that the finding was supported by the record and could not, therefore, be manifestly erroneous.

ROSEMARY DELRIE VERSUS PEABODY MAGNET HIGH SCHOOL, 2010 La. App. LEXIS 837. subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, §§ 44.05, 56.04.

4. NY: 31-Year Career Listening to Loud Complaints Did Not Substantiate Hearing Loss Claim

Claimant worked for the employer in numerous capacities for 31 years, first as a data entry clerk, and then in various customer-related positions until she retired in July 2005. A pre-employment hearing examination conducted in 1974 revealed that claimant had a measurable loss of hearing at that time. In August 2007, claimant filed a workers' compensation claim contending that she had sustained an occupational hearing loss due to long-term noise exposure from being on the telephone for years. A WCLJ found that claimant had a 20.4% schedule loss of use for binaural loss of hearing. Upon review, the Board affirmed and the employer appealed.

The appellate court observed that the employer did not dispute that claimant had suffered a hearing loss; it argued rather that the record failed to establish both that claimant was exposed to injurious noise during the course of her employment and that her documented hearing loss was causally related to her employment. The appellate court agreed with the employer.

While it was clear that claimant spent part of her working day on the telephone with customers who sometimes were either irate or had difficulty hearing, claimant's description of the actual noise level, which was not measured, was simply too vague and imprecise to establish that it was in fact injurious. Even accepting that claimant was exposed to injurious noise while working for the employer, the court nonetheless agreed that claimant failed to demonstrate a causal connection between her hearing loss and her employment.

The employer’s otolaryngologist opined that claimant's hearing loss was not causally related to her employment. Claimant’s treating otolaryngologist had indicated that claimant's hearing loss was causally related to her employment, but that opinion was based upon the erroneous assumption that claimant spent all of her 31 years with the employer on the telephone eight hours each day and, during that entire time, was exposed to approximately 80 to 90 decibels of noise. The level of noise to which claimant was exposed was not quantified. While conflicts in medical testimony represented an issue for the Board to resolve, the issue was the overall sufficiency of claimant's proof. Reviewing the record as a whole, the court could not say that the testimony of claimant’s expert was sufficient to establish the requisite causal connection between claimant's loss of hearing and her employment. Accordingly, the Board's decision was reversed and the claim dismissed.

In the Matter of the Claim of Linda Zahm, Respondent, v National Fuel, Appellant. Workers' Compensation Board, Respondent, 2010 N.Y. App. Div. LEXIS 2973 subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 52.05.

5. WY: Sheepherder’s Death Following Argument With Another Sheepherder Did Not Arise Out of and in the Course of Employment

There apparently isn't much to do if you work as a sheepherder in the wilds of Wyoming. Gomez and his brother-in-law, both Peruvian nationals working legally in the United States, were employed as sheepherders in Washakie County, Wyoming, under a special Sheepherder Contract through a government program. On call 24-hours a day, 7 days a week, Sundays and holidays included, their responsibilities were primarily comprised of the "care and tending of sheep while on the range or pasture." Sheepherders did not actually work 24 hours each day; they were on call, especially during lambing season, and for things such as predator control. They two were provided a residence on a ranch.

On one particular evening, the two took a ranch vehicle, without permission and ventured off the ranch to help some neighbors brand calves, after which they consumed some beer. Later the two returned to the residence and continued to drink heavily. They began to argue and Gomez's brother-in-law grabbed a rifle that they used to ward off predators and shot and killed Gomez.

Gomez's survivors filed a death claim, contending that he had been killed while occupying the premises where he was required to be, that the death occurred as a natural flow from the conditions of the employment. The appellate court affirmed a denial of benefits. While it was certainly true that in at least a general sense, Gomez was where he was supposed to be at the time of this death and that, therefore, a rebuttable presumption arose under the premises rule that the death arose from the employment, the fact was that at the time of death Gomez and his brother-in-law were engaged in activity that had nothing to do with their work. Gomez had been engaged in “recreational or social events where the employee had no duty to attend.” The court indicated that this was not a close case, that to find Gomez's death compensable would require adoption of what would resemble a strict liability standard for cases in which the employee was on call and on the employer's premises.


6. NY: "It Sure Is Stuffy in Here"—Injuries Sustained in Fall from Hotel Roof Were Not Compensable; Claimant’s Conduct Was Unreasonable

Claimant, a budget examiner, arranged to attend a two-day training conference in Saratoga, New York. At the end of the first day of the conference, following an employer-sponsored dinner, claimant and a group of her colleagues visited three bars over a four-hour period of time. Evidence suggested claimant may have consumed five beers during the time period, but did not appear to be intoxicated when she left the last bar. About midnight, claimant and two co-workers took a cab back to the hotel and eventually worked their way back to a second-story suite occupied by one of the co-workers. Shortly thereafter, claimant and the two co-workers stepped out onto the roof of the hotel. Claimant leaned against a rail. It gave way and claimant fell to the ground.

Claimant sought workers' compensation benefits for her injuries. The Board denied the claim and the appellate court affirmed. Noting that the hotel roof was accessible only via a bathroom window in the hotel suite, the court could not say that the Board erred in concluding that claimant's conduct—accessing the hotel roof via the bathroom window—was unreasonable under the circumstances.

In the Matter of Emily B. Maher, Appellant, v NYS Division of Budget et al., Respondents. Workers' Compensation Board, Respondent, 2010 N.Y. App. Div. LEXIS 3191 subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 25.02.

7. LA: Defendant Sentenced to 18 Years for Attempted Murder; Victim/Girlfriend Exposed Fraudulent Workers' Compensation Claim

Defendant and his girlfriend had been involved in a tumultuous relationship for some seven years. According to abundant testimony, the two fought frequently. Testimony indicated Defendant had beaten his girlfriend and that on one occasion she had confronted him in a bar and pointed a loaded handgun in his face. Although there was conflicting testimony, evidence indicated Defendant shot his girlfriend in the stomach as the two argued outside the home. As a motive for the shooting, evidence was presented that showed the girlfriend had contacted an attorney who was representing Defendant's employer in a workers' compensation case filed by Defendant. She had promised to testify that Defendant had not sustained work-related injuries, that he had been hurt instead at home. Evidence suggested that at the time of the shooting, the girlfriend had refused to discuss the matter with Defendant.

Based on the evidence, the Louisiana appellate court affirmed the conviction and 18-year sentence of the defendant charged with fatally shooting his girlfriend after she contacted an attorney for the defendant's employer and indicated the defendant had not sustained a work-related injury and that his application for workers' compensation benefits was, therefore, fraudulent.

STATE OF LOUISIANA, Appellee versus FRED D. KIDD, SR., Appellant, 2010 La. App. LEXIS 1509 subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 39.01.

8. MO: Coughing Incident Was Not Idiopathic Condition; Injuries Were Compensable

Claimant, an over-the-road truck driver, sought workers' compensation benefits for injuries sustained in a vehicular accident. The employer denied the claim, contending that the injuries were the result of an idiopathic condition, that just prior to the accident Claimant coughed. According to the employer, Claimant's coughing was an idiopathic condition pursuant to § 287.020.3 R.S. Mo. (2010). Under that provision, if injury results from an idiopathic condition, it is not compensable. The Commission agreed with the employer and denied benefits.

The Court of Appeals of Missouri reversed. According to the court, the accident was the "unexpected traumatic event," not the cough. The accident caused Claimant's injury. Moreover, Claimant's cough was not an idiopathic condition. , affirming a finding by the state Labor and Industrial Relations Commission that had found a truck driver’s coughing episode that occurred just before a vehicular accident was an idiopathic condition. There had been no showing by the employer that the cough was uniquely personal to Claimant or even that the particular cough in question was the result of a chronic coughing condition (there was some evidence that Claimant had had coughing spells in the past).

DAVID TAYLOR, Claimant-Appellant, vs. CONTRACT FREIGHTERS, INC., Employer-Respondent, and MISSOURI STATE TREASURER, CUSTODIAN OF THE 2ND INJURY FUND, Respondent, 2010 Mo. App. LEXIS 418 subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, §§ 7.04, 9.01.

9. OH: Alleged Horseplay During Team-Building Exercise Did Not Remove the Incident From the Course and Scope of Employment

Kelly, an account manager with Coca-Cola, attended a mandatory corporate kick-off event celebrating the release of its new product, Coca-Cola Zero. As a part of the team-building event, attended predominately by managers and supervisors, all employees in attendance were included to canoe down a three-mile stretch of the river. Kelly and another employee managed the canoe trip without incident. Others weren't so lucky, becoming drenched in the process. As the party stood on the river bank waiting for transportation, several employees started slashing others to get them wet. Evidence suggested that Kelly told one or more workers that it would take more than them to get him wet. He was essentially correct, but in the process of several workers' attempt to throw Kelly into the water, Kelly was body slammed onto the river bank and hurt.

Kelly sought workers' compensation benefits. His claim was denied by the Commission, but following a trial the court of common pleas returned a verdict in his favor. Coca-Cola appealed. The appellate court agreed that the trial court appropriately determined that Kelly had not instigated or participated in horseplay that might remove the incident from the course and scope of the employment. There was evidence that the employer knew about the horseplay, acquiesced and even encouraged it.

CHAD A. KELLEY, Plaintiff-Appellee, - vs - MARSHA P. RYAN, Administrator, Ohio Bureau of Workers' Compensation, Defendant-Appellee, and COCA-COLA ENTERPRISES, INC., Defendant-Appellant, 2010 Ohio App. LEXIS 1269 subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 23.07.

10. MT: Worker's Pot Smoking Prior to Feeding Grizzly Bears Does Not Defeat Montana Comp Claim

While the facts of the case were hotly contested, the petitioner, Hopkins, contended that he was employed by Kilpatrick at "Great Bear Adventures," a privately owned bear park. The bear park contained grizzly and black bears and was generally open to the public from Memorial Day through Labor Day each year. Customers observed the bears from their cars while driving through the park. Hopkins testified that Kilpatrick paid Hopkins and other employees daily, in cash, and that his duties consisted of general maintenance, the feeding of various bears, and other miscellaneous chores. Hopkins testified that while most of the employment activities occurred during the tourist season, there was some general maintenance required year round and Hopkins also fed the bears on some occasions after the season ended, up until the time the bears hibernated each year.

On November 2, 2007, Hopkins sustained severe injuries when he was attacked by one of the grizzly bears during a feeding session. He sought workers' compensation benefits, contending that his injuries arose out of and in the course of his employment. Kilpatrick countered that the bear park had no employees, that no employment relationship existed between Hopkins and Kilpatrick, and that Hopkins' services had been provided on a volunteer basis only. Kilpatrick also contended that the major contributing cause of Hopkins' injuries was Hopkins' marijuana use on the morning of the incident. Hopkins admitted smoking marijuana with other employees on the morning of the incident, but claimed the use of the illegal substance had nothing to do with the bear attack.

Worker' Compensation Court Judge James Jeremiah Shea found that Hopkins was, indeed, an employee of Kilpatrick, that Hopkins sustained compensable injuries arising out of and in the course of his employment, and that Hopkins' use of marijuana was not a major contributing cause of his injuries. Hopkins use of marijuana did not, therefore, disqualify him from receiving an award of benefits. Judge Shea concluded that "[w]hen it comes to attacking humans, grizzlies are equal opportunity maulers; attacking without regard to race, creed, ethnicity, or marijuana usage." The judge characterized Hopkins use of marijuana to "kick off" a day of working with grizzly bears as "ill-advised" and "mind-bogglingly stupid." There was no evidence, however, that the pot smoking contributed significantly to Hopkins' injuries.

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See generally Larson's Workers' Compensation Law, § 36.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

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