Top 10 Bizarre Workers' Comp Cases for 2011

Top 10 Bizarre Workers' Comp Cases for 2011

Last January, I shared with readers the fact that prior to his death, Arthur Larson and I had an annual ritual in which we'd meet in Arthur's home on Learned Place, near Duke University's campus, and review our respective lists of bizarre workers' compensation cases reported during the previous year. As I mentioned in last year's "bizarre" post, one must always be respectful of the fact that while a case might be bizarre in an academic sense, it was intensely real, affecting 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 2011. Last year a few of you sent me some additional cases for consideration. I'd love to hear from any of you again. Send them to compwriter@gmail.com.
CASE #1: Paving Worker Strikes Bowling Ball With Sledgehammer, Loses Eye and Workers' Comp Claim (Pennsylvania)
As our grandmothers taught us, "idle hands are the devil's tools." Consider a Pennsylvania case where a laborer and others on his crew found an old bowling ball near the parking lot where they were working. A number of workers within the crew first took turns using the bowling ball as a shot-put. Then a challenge arose as to whether any of them could break the ball with a sledgehammer. On the claimant's second hit, the ball shattered and a piece of it flew into his eye. The Workers' Compensation Judge ruled that the actions of the claimant, while careless, did not take him outside the course and scope of the employment. The Board disagreed, however, finding that claimant had acted in violation of a positive work order—after he struck the ball the first time, it cracked, and his supervisor told him to "knock it off" and also indicated to claimant that he would not take claimant to the hospital if he were injured hitting the ball. The appellate court observed that there were three criteria for establishing a positive work order violation: (a) that the injury must be caused by the violation of the work order; (b) that the employee must know about the order; and (c) that the order must implicate an activity not connected with the employee's work duties. All three criteria existed here and the Board's decision was affirmed.
See Charles Habib, Petitioner v. Workers' Compensation Appeal Board (John Roth Paving Pavemasters), Respondent, 29 A.3d 409; 2011 Pa. Commw. LEXIS 533.

Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 33.01.

CASE #2: Worker's Termination for Distributing Pornography to Co-Workers Does Not Disqualify Him From Continued Disability Benefits (Utah)
In May, the Court of Appeals of Utah affirmed an award of continued workers' compensation benefits to an injured worker in spite of the fact that he was terminated—after beginning a light duty program—for sending pornographic images to other employees' cell phones and on company email accounts. The court agreed that there was no evidence the worker actually intended to sever his employment relationship with his employer. Nor had the worker refused light duty. The court did not find persuasive the employer's contention that light work remained available to the worker, that he had constructively declined it by his improper activities.

See Stampin' Up, Inc. and Workers' Compensation Fund, Petitioners, v. Labor Commission and Jessie C. Gonzalez, Respondents, 2011 UT App 147; 256 P.3d 250; 682 Utah Adv. Rep. 47; 2011 Utah App. LEXIS 159.

 

Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 84.04.
CASE #3: Home-Based Worker Trips Over Her Dog Sustaining Compensable Injury (Oregon)
Dogs may be our best friends, but in a case from Oregon, a home-based worker tripped over her small dog as she walked from her home to her nearby garage to retrieve some work-related supplies. The state's Workers' Compensation Board denied the claim, concluding that the worker's injury did not arise out of her employment because (a) she was not exposed to the risk by virtue of her employment, but encountered the same risk any time that she stepped outside the door of her home and (b) because the risk arose from her home environment, which was outside of the employer's control. The appellate court disagreed. Quoting Larson's Workers' Compensation Law, § 16.10, the court found the employer's lack of control over the conditions of the worker's premises was not material. While the employer might not have had control over the worker's dog, it had control over whether the worker worked away from the employer's premises. Once it was established that the home premises was also the work premises, it followed that the hazards of the home premises encountered in connection with the performance of the work were also hazards of the employment. The case was remanded since there had been no determination as to whether the injuries arose in the course of the employment.
See In the Matter of the Compensation of Mary S. Sandberg, Claimant. Mary S. Sandberg, Petitioner, v. JC Penney Co. Inc., Respondent, 243 Ore. App. 342; 260 P.3d 495; 2011 Ore. App. LEXIS 715.

 

Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 16.10.
CASE #4: Employee's Tort Action Against Employer and Related Corporation Where Worker Fell From Helicopter While Hunting Deer in Mexico May Move Forward (Louisiana)
In a truly bizarre factual setting, and in a split decision, a Louisiana appellate court reversed a decision granting summary judgment in a tort action filed by an employee against his employer and a related corporation for injuries the employee sustained when he fell from a helicopter in Mexico while attempting to capture a deer with a net that he had fired from a modified rifle. The helicopter was owned by the employer ("GMI"), a firm specializing in aerial herbicide application to power line, pipeline, and drainage canal right of ways to control brush and tree growth. The other corporation ("BMI") was owned by the employer's president. BMI had no employees, apparently operated on a cash basis, and occasionally used some of the employer's workers to capture and transport deer from wild areas in Mexico to land BMI leased in Louisiana and Texas. The employee alleged that he was exclusively employed by the employer and was not in the course and scope of his employment with the employer when he fell from the helicopter in Mexico. He alleged as well that he was not employed by BMI and he contended that the employer and BMI had been negligent in various ways, including negligent design by BMI of a restraint system within the helicopter. Alternatively, if his injuries were sustained in the course and scope of his employment with either defendant, the employee contended that both defendants were liable in tort because they knew that his accident was substantially certain to follow since another employee earlier had fallen in the same manner using the same helicopter and harness while netting deer in Mexico. Reversing the trial court's finding that the injured employee was the general employee of the employer and the special employee of BMI, the court indicated there was at least a factual issue as to whether he was employed by BMI at all and a question as to whether he was engaged in employment activity for the employer at the time of his injury. Further, there was a question as to whether the employee had been "borrowed" by BMI. Because of the factual issues, summary judgment on those issues was not appropriate. The court did agree that in spite of the earlier accident involving the other employee, the employee had established no evidence of intentional injury; the trial court's summary judgment on that issue was appropriate.

See Tommie Hebert and Melissa Anne Hebert Versus J. Oran Richard, et al., 10-1417 (La.App. 3 Cir. 07/06/11) 72 So. 3d 892; 2011 La. App. LEXIS 856.

 

Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, §§ 67.01, 103.04.
CASE #5: Injured Worker's Fatal Heart Attack While Holding Termination Letter Is Not Compensable (Pennsylvania)
A fatal heart attack sustained by an injured worker two days after he received a termination letter from his employer was not a work-related incident, held a Pennsylvania appellate court in July. Affirming a denial of benefits by a workers' compensation judge and the Board, the court acknowledged that the decedent had sustained a work-related injury to the shoulder, had begun light duty work, but was subsequently directed by the employer to return to his regular job duties, and then told to go home when the worker's attorney sent the employer a letter indicating the worker was unable to work. The employer then sent its termination notice. Testimony indicated that for two days after receiving the letter, the worker was distraught and succumbed to the heart attack while holding the letter. The appellate court indicated, however, that it was for the trier of the facts to make a determination and the WCJ and the Board had found against the worker's widow. The court also observed that there was a lack of expert medical evidence indicating that a causal connection existed between the actual employment and the onset of his heart attack.
See Janet Little, dependent of David Little, Deceased, Petitioner v. Workers' Compensation Appeal Board (B&L Ford/Chevrolet), Respondent, 23 A.3d 637; 2011 Pa. Commw. LEXIS 344.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 10.02.
CASE #6: Risk of Obese Employee's Getting Stuck in Cafeteria Booth Is Not "Personal Risk;" Award Should Have Been Given for Cracked Femur (Indiana)
A morbidly obese long-term employee, who weighed some 360 pounds, suffered from diabetes, and walked with a cane because of issues with her knees, was not engaged in an "activity of daily living" when she suffered a cracked femur as she tried to remove herself from a booth in a university cafeteria where an employee appreciation dinner had been given. The appellate court held that the Full Board erred when it determined that the risk that resulted in the employee's injury was personal to her and that there was no increased risk created by the work or the work environment for the injury she sustained. The court observed that while the employee's pre-existing physical condition may have contributed to her injuries and undoubtedly hampered her recovery, her injuries were at least partially attributable to her exit from the booth. Accordingly, the Board's finding was not supported by substantial evidence.
See Betsy Waters, Appellant-Plaintiff, vs. Indiana State University, Appellee-Defendant, 953 N.E.2d 1108; 2011 Ind. App. LEXIS 1434. 
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 9.02.
CASE #7: Armed Robbery of Liquor Store Was Part of Worker's Normal Working Conditions; No Recovery for Mental Injury Claim (Pennsylvania)
In Pennsylvania, in order to recover workers' compensation benefits for a psychic injury, the worker must prove that he or she was exposed to "abnormal working conditions and that his psychological problems are not a subjective reaction to normal working conditions" [see Babich v. Workers' Comp. Appeal Bd. (CPA Dept. of Corrections), 922 A.2d 57, 63 (Pa. Cmwlth. 2007)]. In September, a Pennsylvania appellate court held that a liquor store employee, who was diagnosed with post-traumatic stress disorder after an armed robbery at the store, had not been subjected to abnormal working conditions. Ninety-nine similar robberies had occurred in the employer's retail stores since 2002; indeed, four had occurred in the immediate vicinity within weeks of the robbery involving the claimant worker. Robberies are a "normal" condition of liquor store employment, held the court.
See PA Liquor Control Board, Petitioner v. Workers' Compensation Appeal Board (Kochanowicz), Respondent, 29 A.3d 105; 2011 Pa. Commw. LEXIS 467.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 44.05.
CASE #8: Friend of Co-Worker Follows Claimant in High-Speed Auto "Chase," Then Shoots Him; Court Says No Recovery Because, Among Other Things, Claim Barred by "Going and Coming Rule" (Maryland)
In October, a Maryland appellate court affirmed a decision of a circuit court that had reversed an award of workers' compensation benefits to hotel worker who was shot and rendered a paraplegic by a friend of a co-worker with whom claimant had an argument over several supply carts being utilized for a hotel banquet. The evidence tended to show that claimant and the co-worker argued and that the claimant touched the co-worker on the hand, at which point the co-worker called a friend, telling him to get his "thing," and come "take care of" the claimant. The "friend" got his gun, drove to the hotel, and then accosted claimant, who'd been told by the supervisor (in light of the loud argument between the two workers) to go on home since his shift was almost over. As the claimant left in his vehicle, he was chased for some 13 miles at high speeds by the co-worker's friend. When the vehicles finally stopped, the assailant shot and seriously wounded claimant. In spite of the work-related origin of the argument between the claimant and the co-worker, the court held that claimant's injuries were not covered by the Act because the assault that caused them was not "directed" against him in the course of his employment. Citing various sections of Larson's Workers' Compensation Law, the court held that the injuries did not arise of the employment. And, in an unusual application of the rule, the court also held that under the going and coming rule, claimant's injuries were not compensable.
See John Doe v. Buccini Pollin Group, Inc. d/b/a PM Hospitality Strategies, Inc. et al., 201 Md. App. 409; 29 A.3d 999; 2011 Md. App. LEXIS 140.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, §§ 8.01, 13.01.
CASE #9: Injured Worker's "Helping Out" in Wife's Custom-Made Goose Call Business Does Not Result in Disqualification From Further Disability Benefits (Louisiana)
That a workers' compensation claimant helped make custom goose calls for his wife's company, sometimes handled phone orders, and was pictured on the company website giving instructions on how to use the calls, did not constitute workers' compensation fraud where other evidence indicated he had no earnings from the business and performed no other work for hire. The court observed that the goose call company's tax preparer testified that the claimant did not receive a salary and the employer presented no evidence that the claimant was making any money or was capable of doing any physical work.
See Nathan Wright Versus Cypress General Contractors, 11-238 (La.App. 3 Cir. 10/05/11); 2011 La. App. LEXIS 1165.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 39.03.
CASE #10: Worker Fails in Attempt to Recover for Alleged Exposure to "Chemical Cloud" While Driving (Wyoming)
The Supreme Court of Wyoming affirmed a decision by a trial court that had, in turn, upheld the denial of a workers' compensation claim filed by a worker who alleged she sustained an injury arising from exposure to a "chemical cloud" while driving in the course of her employment. The high court agreed that the medical professionals who evaluated the worker were unable, without mere speculation, to opine that her injury more probably than not arose out of her employment, as required by Wyo. Stat. Ann. § 27-14-102(a)(xi). The court agreed that the worker's story was incredible and uncorroborated, and an investigation produced no possible source of the alleged chemical cloud. While she described a significant event involving a "horrible smell" that caused her to experience serious symptoms, required her to pull off of the highway, caused her to lose track of time and perhaps lose consciousness, she did not seek medical care until two days later after meeting with her client.
See In The Matter of the Worker's Compensation Claim of Andrea L. Mccall-Presse, an Employee of Wyoming Women's Business Center: Andrea L. Mccall-Presse, Appellant (Claimant), v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee (Respondent), 2011 WY 34; 247 P.3d 505; 2011 Wyo. LEXIS 34.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 130.05.
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Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law