NAWCJ

The Top 10 Bizarre Workers’ Comp Cases for 2021



Copyright 2022. Thomas A. Robinson. All rights reserved. Reprinted with permission.

 

As I have noted January for many years, prior to the death of my mentor and friend, Dr. Arthur Larson, the truly original author of the Larson treatises in workers’ compensation law (and in employment discrimination law, as well), he and I began a quirky—though humorous—New Year’s tradition. On an evening in early January, he and I would assemble in his home on Learned Place, near Duke University’s campus here in Durham, pour ourselves a cocktail, sit down, and compare our respective lists of the previous year’s “bizarre” workers’ compensation cases.

After his death, I began to craft my own annual list—in memory of Arthur—sending it out to a few colleagues via snail mail. When I launched this blog site in December 2011, I migrated the annual list to it, beginning in January 2012. Each year, this post gets more hits than any of my serious writing. As some of you know, a few years ago, my annual list was even featured on National Public Radio’s Saturday morning show, “Wait, Wait, … Don’t Tell Me.”

Please specifically note that, as is the case with all previous “Bizarre Lists,” I am ever mindful of the fact that while a case might be factually bizarre in an academic sense, it is intensely real for the participants and their families. These highlighted cases involve real injuries, some even fatal. Life has its bizarre moments and, since the workers’ compensation world is peculiarly representative of the larger world around it, the cases we see each year sometimes have quirky, truly bizarre, fact patterns.

And so again, in the spirit of my annual January ritual, I offer ten bizarre cases (plus an extra “honorable mention,”) that I hope give you a chuckle. Who knows? You might even learn something. The first two stories don’t count; they have been so widely reported that I don’t think it’s fair for me to include them in my grouping. Otherwise, the other cases/incidents are offered in no particular order.

[Author’s Note: Citations link to Lexis Advance, www.advance.lexis.com.]

Shooting On Movie Set Involving Alec Baldwin (New Mexico)

I need not add to the comprehensive and breathless coverage of the tragedy on the set of the upcoming film, “Rust.” The circumstances of the October 2021 accidental shooting, which resulted in the death of a cinematographer at the New Mexico set, do, of course, easily qualify as one of the most bizarre workplace accidents of 2021. The prop gun incident has received national attention and will no doubt result in significant litigation. At a workers’ compensation level, of course, the incident seems compensable. It will be interesting—in an academic sense—to see if the exclusive remedy rule plays any part in the tort litigation that is most assuredly going to flow from the incident.

For Wikipedia’s continuing coverage of the incident, click here

Worker Injured “Commuting” Downstairs (Germany)

Then there’s the unusual case of the German worker who sought benefits for injuries sustained back injuries when he slipped as he walked down a spiral staircase that led from his bedroom in his residence to his “home office” one floor below. Apparently, under German law, a worker can recover for injuries sustained during his or her “first journey to work.” The man contended that the “trip” from his bedroom to the office in his home was his “first journey.” Two lower courts disagreed about the compensability of the claim, but on further appeal, the court said:

If the insured activity is carried out in the household of the insured person or at another location, insurance cover is provided to the same extent as when the activity is carried out at the company premises.

The court ruling stressed the law applied to “teleworking positions.”

For a more complete report, see a December 9, 2021 story from the Guardian.

CASE #1: “Is that Pizza Gluten-Free?” (Vermont)

Plaintiff worked as a litigating attorney for a Vermont law firm. On the day of her injuries, Plaintiff, along with a firm paralegal, was preparing a client for mediation. The session continued, but those present got hungry, so Plaintiff suggested they split a gluten-free pizza. The paralegal ordered the pizza. Plaintiff took three bites before realizing that it was not gluten-free. She later alleged that since consuming the pizza, she suffered an array of medical conditions, including psychological problems and issues with her sleep, all combining to cause her to have “lapses in daily functioning.”

Initially she filed a workers’ compensation claim, but the firm successfully defended on grounds that the injuries did not arise out of and in the course of her employment [see Vermont state file No. LL-55774, opinion No. 02-21 WC (Jan. 21, 2021)]. She also filed a civil complaint in federal court against the firm, alleging five causes of action against the firm as her former employer: violation of the Americans with Disabilities Act; breach of contract; violation of Vermont’s Fair Employment Practices Act; breach of implied covenant of good faith and fair dealing; and fraudulent inducement. The firm contended several of her claims were barred by the exclusive remedy provisions of Vermont’s workers’ compensation laws. The federal district court noted, however, that under Vermont law, a plaintiff was not precluded from filing both a workers’ compensation claim and a civil action, subject to an eventual determination of which remedy was appropriate if the two avenues of recovery proved to be inconsistent. The plaintiff had not apparently recovered workers’ compensation benefits, so her civil action was not futile, held the federal district court.

Rainville v. Boxer Blake Moore PLLC, 2021 U.S. Dist. LEXIS 48515 (D. Vt., Mar. 12, 2021)

Larson § 7.03

CASE #2: “The Bus is Coming, but ‘Mind the Gap’” (Illinois)

While we’er on the subject of injuries to attorneys, consider this unusual case from Illinois in which Brustin, an 81-year-old attorney and the president of Brustin & Lundblad, Ltd., sustained shoulder injuries at a bus stop. Falls at bus stops aren’t perhaps all that unusual, but Brustin contended this situation was different. Brustin, still active at his age, worked a number of hours each week from home, but also scheduled meetings with clients and others at the law firm’s offices in Chicago. On the day of his injuries, Brustin had a scheduled 10:00 a.m. appointment with a client at the office, but he received a somewhat frantic call from the office manager just before 8:00 a.m. that day, indicating the client had already arrived and was waiting for him. The client was the business agent of a local labor union and a large source of business for the firm. Brustin contended that the firm had a rule that important clients, like this labor union agent, were not to be kept waiting. Accordingly, Brustin got dressed in a hurry and walked briskly to a bus stop. As he was watching for the southbound bus, he tripped on the edge of a sidewalk slab and fell on his left shoulder, suffering what later would be diagnosed as a torn rotator cuff.

He filed a workers’ compensation claim, contending in relevant part that he was an “on-call employee,” that he was engaged in important work for the firm at the time of the injuries, and that he was entitled to injury benefits. The firm (or rather the carrier) defended, relying in pertinent part on the going and coming rule. Injuries during an ordinary commute are not compensable.

The appellate court reviewed the various exceptions to the going and coming rule, including the “usual access route,” employees who are actively engaged in work while en route, on-call employees, the “special mission” rule, and the rule for traveling employees. The court discounted Brustin’s argument that since he met with clients at his residence and had a law library in his home, that it constituted a separate premises (generally speaking, travel between two premises of the employer is not considered a commute). The court observed that ordinarily a “traveling employee” is an employee whose work requires the employee to travel away from the employer’s office. Those facts did not fit Brustin’s scenario, indicated the court. His injuries occurred during a commute and where, therefore, not compensable.

Brustin v. Illinois Workers’ Comp. Comm’n, 2021 IL App (1st) 200502WC-U, 2021 Ill. App. Unpub. LEXIS 38 (Jan. 8, 2021)

Larson § 14.05

CASE #3: You Want Cream with That Coffee?: Golf Club Manager’s Injuries in Crash with Train Are Not Compensable (West Virginia)

Eisel worked as a manager at a golf course clubhouse. He sustained serious injuries to his skull, vertebrae, left arm, and ribs, as well as numerous lacerations when his vehicle was hit by a train. After several months of recuperation, Eisel provided an affidavit that indicated that at the time of the accident he had been traveling from the clubhouse to a nearby Kroger to buy coffee creamer. Eisel contended that he considered it part of his duties to provide and make coffee for employees and its customers. He indicated he had made similar trips on numerous other occasions and considered it all part of his job. Several co-workers contradicted the affidavit, however, pointing out that the golf course ran a restaurant at the facility, that there was plenty of cream on hand, and that Eisel had left the clubhouse to purchase a special flavor of coffee creamer that he preferred and which the clubhouse and restaurant did not provide.

The claims administrator rejected the claim, finding that Eisel’s injuries did not arise out of and in the course of his employment. The Office of Judges thought differently, reversing the decision of the claims administrator. The Board of Review reversed the Office of Judges Order and reinstated the claims administrator’s rejection of the claim. On further appeal, the Supreme Judicial Court of West Virginia said it agreed with the reasoning and conclusions of the Board of Review. At the time of the accident, Eisel had left the employment to perform a personal errand. Given that the employer had an adequate supply of creamer, the Court said it was difficult to find that the employer was benefitted by Eisel’s departure to Kroger.

Eisel v. City of South Charleston, 2021 W.Va. LEXIS 397 (June 23, 2021)

Larson § 17.03

CASE #4: Restaurant Worker Beaten by Angry Karaoke Customers (New York)

Zhang worked for a management company that operated the Imperial Crown, a restaurant located on the third floor of a mall and adjacent to a karaoke bar. On the day of Zhang’s injuries, a drunken customer of the karaoke bar came into the restaurant and soon got into an altercation with Zhang. The drunk left, but came back a few minutes later with 20 of his buddies. They accosted Zhang, beating him until he was unconscious.

Zhang sued a company that leased the entire mall and sublet the third floor to the management company. The defendant company contended it was immune from suit because it was the alter ego of Zhang’s employer. The Supreme Court of New York, Appellate Division, Second Department affirmed a decision that denied the defendant’s motion for summary judgment. The court noted that the altercation was not a mere sudden outburst, but resulted from an escalating situation. Moreover, the defendant company had failed to show that the two business entities operated as a single unit or that one of the entities controlled the other’s day-to-day operations. Zhang’s tort action for injuries sustained in the assault could move forward.

Eric Zhang v. ABC Corp., 194 A.D.3d 990, 149 N.Y.S.3d 156 (2d Dept. 2021)

Larson § 8.01

CASE #5: Take Smaller Bites: Worker Chokes on Breakfast Sandwich, Has Serious Vehicular Accident (Missouri)

Boothe, a field service specialist for Dish Network Inc., sustained serious injuries in a single-vehicle crash that occurred when, while driving to his first morning appointment, he choked on a breakfast sandwich he had just purchased, blacked out, and crashed into a pillar on the side of the road. An administrative law judge found that Boothe’s workers’ compensation claim was compensable because the risk he faced was employment-related—traveling on a rural highway, with a strict timeline. That sort of risk, said the law judge, did not occur in non-employment life. The Labor and Industrial Relations Commission reversed the award, finding Boothe’s injuries did not arise out of his employment since that employment did not require him to eat breakfast while driving. The Supreme Court of Missouri affirmed the denial of benefits, finding that Booth had failed to show a causal connection between the employment and his injuries. It stressed that the employer did not require Boothe to eat breakfast after starting work for the day. Indeed, Boothe had admitted that he could have had breakfast beforehand. Based on the foregoing, Boothe’s injuries did not arise out of and in the course of his employment.

Boothe v. Dish Network Inc., 2021 Mo. LEXIS 437 (Mo., Dec. 21, 2021)

Larson § 4.02

CASE #6: “Hey Bear, Give Me a High-Five” (Pennsylvania)

Alborg worked as a “wildlife associate” at Nemacolin Woodlands Resort, one of a number of resorts in Pennsylvania’s Laurel Highlands region. On the day of her injuries, she was giving a tour of the wildlife exhibits to some of the resort visitors. She led them to the bear enclosure where Kooter, a Himalayan black bear was housed. The idea was to get Kooter to give the guide a “high-five.” The trick was to hold a marshmallow in one hand, signal Kooter with the other hand, and get him to give the usual “high-five.” Kooter would then get the marshmallow after successfully completing the trick and everyone would be happy. Kooter apparently thought the trick was a bit lame. Either that or he had crawled out of his bed on the wrong side that day, for when Alborg put her hand and arm through the barrier to get the high-five, Kooter grabbed her arm and began to chew on it instead of the marshmallow.

Two other employees were successful in pulling Alborg away from the bear, but Alborg suffered severe gashes to her hand and arm, suffering severe blood loss. After the incident, Alborg ultimately lost her thumb and had to endure more than a dozen surgeries. She sued the resort owners, veterinary consultants, and the enclosure designers for her injuries. In her complaint, she alleged that had it not been for the quick thinking of a nearby hotel guest, who just happened to be a trauma nurse, and who fixed a makeshift tourniquet to Alborg’s arm, she would probably have died. She also alleged that the “high-five” trick was too dangerous to perform and that the bear enclosure had been inadequately constructed so as to protect employees.

Alborg v. Nemacolin Woodlands Resort, et al., decision not reported.

Larson § 100.01

CASE #7: “How Much Power is Stored in One of Those Little Energy Drinks?” (Oregon)

An Oregon claimant sustained injuries when the energy drink that he had brought to work to consume during a mandatory paid break exploded, sending the bottle cap into his eye. The employer controverted the worker’s claim, contending that the risk of injury was not work-related, but rather that it had been imported into the workplace by the worker himself. The Oregon Workers’ Compensation Board disagreed with the employer and awarded benefits. Liberally citing Larson’s Workers’ Compensation Law, the appellate court found substantial evidence supported the award. Agreeing with the Board that the risk of injury was not personal to the employee, the appellate court noted that the employer did not supply any drinks for the workers during their breaks. The employer could hardly be surprised, therefore, that they brought their own. This was not an instance of imported danger, again citing Larson. The court stressed that even if it had been an imported risk, that would not defeat compensability since the employer had acquiesced in the sort of activity that caused the employee injury.

SAIF Corp. v. Chavez-Cordova (In re Chavez-Cordova), 314 Ore. App. 5, 496 P.3d 39 (2021)

Larson §§ 4.01, 9.03

CASE #8: “You Mean I Have to Put My Foot Down There? (New York)

A key issue in many mental injury cases is whether the stress that the employee faced was unusual. But unusual can be taken two ways. Is the stress “unusual” when one considers the levels of stress that ordinary workers in the economy face? Alternatively, is the stress “unusual” when one compares the stressed faced by this worker and other similarly-situated workers in the same trade or industry? In Larson, we note that some states follow the former, “subjective” standard, while a plurality follow the second standard, which we might call “objective.”

The difference between those two standards can be important in tort cases, in which the employee alleges that he or she was forced to perform particularly gruesome duties. I informally place these sorts of disputes in the “You want me to do what?” category. Consider a recent decision from New York, in which a grave digger alleged that he had sustained emotional distress injuries resulting from the fact that, as part of his employment duties, he was sometimes required to step onto the top of caskets during the burial process. Such a civil action would clearly be barred by exclusively under normal circumstances, but here, the worker alleged his employer’s work requirements amounted to intentional injury. Acknowledging that an intentional tort committed by the employer, or its representatives, could give rise to a cause of action outside of the ambit of New York’s Workers’ Compensation Law, the appellate court stressed that the complaint must allege an intentional or deliberate act by the employer directed at causing harm to a particular employee. No such allegations were contained in the plaintiff’s complaint and the trial court appropriately granted the employer summary judgment.

Zaborowski v. Roman Catholic Diocese of Brooklyn, 195 A.D.3d 884, 145 N.Y.S.3d 847 (3d Dept. 2021)

Larson § 103.03

CASE #9: “I Think I Can Make It!” (Virginia)

A few states, such as Virginia, still take the “accidental” part of the compensation formula seriously. By that I mean that an injury isn’t compensable just because it arises out of and in the course of the employment. In Virginia, there must be also be some element of “unusualness.” Thus, for the most part, injuries that result from “ordinary movement” within the workplace—walking along a level pathway, walking up or down an uncluttered stairwell, etc.—are not compensable. That issue was important in a recent case in which an auto dealership employee sought benefits for injuries sustained when, at the end of the workday and after he had exited the dealership building—pushing a button to close the garage door—he noticed that one of the dealership’s interior lights had been left on. He quickly tried to “duck” under the door and sustained an injury to his back. At the workers’ compensation hearing, the employee testified that he was responsible for turning out all the lights and he did not have a key to the premises. Under those circumstances, agreed the appellate court, this was no “ordinary movement.” His risk of injury did not spring from conditions commonly found outside the workplace. Benefits were accordingly awarded.

Magic City Ford Lincoln Isuzu Trucks v. Kerr, 2021 Va. App. LEXIS 160 (Aug. 31, 2021)

Larson § 42.01

CASE #10: “Mick, He’s Got a Knife” (Florida)

In a case that hasn’t made the court reporting system (yet), two employees at a temporary staffing facility in Orlando, Florida, sustained injuries when a machete-branding man came into the facility and began slashing them. The attacker had come to the facility earlier in the day, inquiring about work as a day laborer, but had been turned away because all the jobs that day had been filed. He came back two hours later with a machete, who blade some witnesses said was 18 inches long. He forced his way into the employee area and lashed a female employee. He then attacked a male employee who drew a concealed handgun from the waistband of his pants, firing two shots at the assailant. One of the shots struck the attacker in the arm, forcing him to drop the machete and run. When police arrived, they found the two injured employees in the parking lot and saw a man fitting the description of the assailant, with his shirt tied around his arm, running down the road. After a short chase, he surrendered and was arrested for attempted felony homicide, aggravated battery with a deadly weapon, and other charges. Police reports indicate that both employee’s injuries required surgery. The female employee may have permanent injuries to her arm. The attacker was thought to be homeless. He had performed day labor for the employer on at least one earlier occasion.

For a February 17, 2021 report from the Orlando Sentinel, click here

Larson § 8.01

Honorable Mention: “Do You Want Fries With Your Slushee?” (Ohio)

According to a June 17, 2021 report from Ravenna, Ohio, one or more employees at a local McDonald’s sustained minor injuries when they were attacked by a customer who was dissatisfied with her choices of slushee flavor. The patron apparently told the McDonald’s employees that she wanted a slushee composed of all three available flavors. When her request was refused, the patron struck the store manager. Several employees fought back, but at one point, the “customer” ripped the mask off one employee and threw counter items at another. The customer was arrested after the confrontation and, according to reports, was charged with two counts of misdemeanor assault.

For a story posted by “19 News,” click here

Larson § 8.01