Copyright © 2020 by Thomas A. Robinson, Durham, N.C. All rights reserved. Reprinted
with permission (Original published at www.workcompwriter.com.)
As I have noted many times on this blog site, more than 30 years ago my mentor, Dr. Arthur Larson, 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, North Carolina, pour ourselves a cocktail, sit down, and compare our respective lists of the previous year’s “bizarre” workers’ compensation cases. After Arthur’s death, the annual “list” languished for a few years but then, about 15 years ago, I began to craft my own annual list—in honor of Arthur—sending it out to a few colleagues via snail mail. Since I began this blog site in 2011, this post has been my annual favorite. It is easily the annual post that gets the most hits. 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.”
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. To offer a shameless plug, in my latest publication from LexisNexis, the 2019 edition of Workers’ Compensation Emerging Issues Analysis [ISBN 978-1-5221-8289-4], we highlight the challenges faced by first responders and the plethora of recent first responders legislative activity. In keeping with that theme, four of the following cases involve those special workers.
And so again, in the spirit of my annual January ritual, I offer ten bizarre cases (in no particular order)—and one more from France—that I hope give you a chuckle. You might even learn something. If you know of others that fit the category, please send them along to me firstname.lastname@example.org.
CASE #1: Smoking is Hazardous to Your Health (Indiana)
Two workers, Hall and Hill, employed by a local charity, were instructed to retrieve some items donated by the owner of a fireworks and Halloween store. They went to the business, retrieved the items earlier identified, placing them into Hall’s truck. At some point in the process, Hall came into possession of an ammunition box containing fireworks called Talons. As Hall drove back to the charity, he held one of the Talons in his left hand. Sitting on the passenger side of the truck, Hill was smoking a cigarette. Hall was either holding or smoking a cigarette. Hill reminded Hall to be careful not to light the Talons because they knew someone who had been killed in an incident involving fireworks. During the drive, a spark from one of the cigarettes apparently came into contact with the Talon fireworks, causing it to explode. Hill heard the sudden explosion and Hall screaming. Hill managed to steer the vehicle into a Dollar General parking lot and emergency personnel arrived to transport Hall to the hospital, who had suffered severe injuries to his left hand. Hall sought workers’ compensation benefits. The Board concluded that the injuries did not arise out of and in the course of the employment. The appellate court affirmed.
Hall v. Habitat for Humanity of Grant Cty., Inc., 2019 Ind. App. Unpub. LEXIS 1644 (Dec. 26, 2019).
Larson § 23.01
CASE #2: Dressing a Mermaid Can be a Dangerous Business (North Carolina)
Working in a bridal shop shouldn’t be hazardous, right? Think again. In this unusual case, a bridal shop employee was attempting to find the “perfect” dress for a prospective bride. The bride-to-be wanted a mermaid style dress and apparently had her heart set on one the employee showed her. One problem: the dress was a size 12 and the bride-to-be was a 16. “We can make this work,” was apparently the employee’s thought. Standing behind the customer, the employee managed to get the dress over the woman’s head and upper torso, but as the employee strained to pull the dress down over the customer’s ample derriere, the employee lost her balance, fell, and injured her knee. To add insult to injury, the Commission denied coverage, finding the “work incident did not constitute an interruption of plaintiff’s normal work routine [emphasis added]. The appellate court agreed (North Carolina has a rather strict “accidental” injury requirement in its Act).
Lea v. David’s Bridal of Greensboro, Inc., 824 S.E.2d 926 (N.C. Ct. App. 2019).
Larson § 43.01
CASE #3: Cemetery Workers Sometimes Try to “Liven” Things Up a Bit (Rhode Island)
Work can get somewhat passive at a cemetery. One might expect the workers to use their imagination to add some excitement. That’s apparently what happened in a recent case from Rhode Island. On the day of the injury, one cemetery worker noticed that his co-worker was occupying a bathroom stall during a lunch break, so he took a gasoline canister located at the job site, poured some of the gasoline onto the bathroom floor, and lit it, apparently intending it as a practical joke. Unfortunately, some of the gasoline had flowed into the stall area and the ensuing fire caused severe burns to the co-worker. The co-worker, in his tort action, contended that the jokester had been outside the course and scope of the employment and, accordingly, did not enjoy immunity. The Rhode Island appellate court said there was no such exception. The exclusive remedy provision of the Rhode Island Workers’ Compensation Act is so strong, held the state’s Supreme Court, that it shielded a co-employee from tort liability in a dangerous incident involving horseplay.
Mello v. Killeavy, 205 A.3d 454 (R.I. 2019).
Larson § 100.01
CASE #4: Workers’ Comp Claims Adjusters Should Avoid Dogs (Florida)
In a much-reported case from Florida, a deeply divided Florida appellate court reversed an award of benefits to a home-based worker who sustained injuries when she tripped over her dog as she reached for a coffee cup in her kitchen. In what was, at least in some respects, the irony of ironies, the Arizona-based employee worked for her Florida-based employer as a workers’ compensation claims adjuster. Because her work tasks were largely electronic, she was allowed to work from her Arizona home. She was, however, required to accommodate her employer’s East Coast time zone; she began her work day at 4:00 a.m., local time, in order to match the 7:00 a.m. start time at the employer’s Florida facility. On the day of the injury, the employee decided to take a short coffee break after completing three hours of work. She went downstairs to her kitchen, where her coffee maker was located, and, as she reached for a coffee cup, she tripped over one of her two dogs, sustaining knee, hip, and shoulder injuries. The Florida JCC awarded workers’ compensation benefits and the employer appealed. The appellate court reversed, finding that the employer did not contribute to the risk that claimant would trip over her dog.
Sedgwick CMS v. Valcourt-Williams, 271 So.3d 1133 (Fla. 1st DCA 2019).
Larson § 16.10
CASE #5: With Supervisors Like This, Who Needs Enemies? (California)
In the first of our first responder cases, plaintiff had served as a firefighter/paramedic for 11 years. Two days prior to his injury, plaintiff attempted to render aid to a patient at a local hospital when he was accosted by two individuals who had brought the patent to the hospital. Two days later, plaintiff, a co-worker/paramedic, and two fire captains, Marshall and Gamble, discussed the earlier incident. Plaintiff voiced disagreement with the manner in which the incident had been handled by the captain in charge. According to testimony in a later civil trial, at some point in the conversation, fire captain Marshall asked plaintiff to stand up. Reluctant to do so, plaintiff asked, “What are you doing?” Marshall did not respond at first, but when plaintiff did stand to his feet, Marshall held up a piece of paper near plaintiff’s face and said, “Pretend that this paper is the clipboard that we carry on our apparatus and this is what you can do next time to get somebody away from you.” Plaintiff understood Marshall was conducting a role playing exercise in which Marshall was the firefighter and plaintiff was an aggressive individual. As plaintiff put his hands up to block the paper in his face, Marshall kicked him hard in the groin with a steel-toed boot. Plaintiff fell to his knees, and Marshall asked him what happened. Plaintiff replied, “You got me.” Marshall then left the room, without apologizing or asking whether plaintiff had been hurt.
Indeed, plaintiff went to the hospital that night. He was told he would be fine in a week, but several days later he began to experience increased pain and swelling. After seeing a urologist, plaintiff had emergency surgery to remove his left testicle. Plaintiff underwent several more surgeries and was rendered sterile. The jury found Marshall did not intend to harm plaintiff, and that plaintiff’s claims were, therefore, barred by the exclusive remedy provisions of the California workers’ compensation law. The appellate court affirmed.
Tibbett v. Los Angeles County Fire Dep’t, 2019 Cal. App. Unpub. LEXIS 3869 (June 5, 2019).
Larson § 111.03
CASE #6: Morning Constitutional Turns Bad (New Jersey)
In an unpublished opinion, the New Jersey appellate court held that a firefighter could not maintain a civil action against his employer and a co-worker where the plaintiff sustained injuries in a bizarre practical joke. On the day of injury, the firefighter was using the toilet in the men’s bathroom when he heard and felt an explosion. He sustained second-degree burns on his genitalia. An investigation revealed that a fellow firefighter had placed a bag of “bang snaps” in the toilet. Bang snaps are small fireworks without a fuse that detonate when compressed. The firefighter missed two weeks of work, but suffered no lost wages. The firefighter sued the co-worker in tort, who defended by arguing the claim was barred by the exclusive remedy provisions of the New Jersey Act since both the firefighter and the coworker were acting within the course and scope of the employment. The trial court agreed and dismissed the case, holding also that the co-worker did not have a “subjective desire” to injure anyone with the prank. The appellate court affirmed. The record showed that bang snaps had been regularly used in firehouse pranks and that there was no evidence that the co-worker had the “deliberate intention” to injure the firefighter.
Johns v. Wengerter, 2019 N.J. Super. Unpub. LEXIS 730 (Apr. 1, 2019).
Larson § 23.01
CASE #7: Two EMTs Go Down Almost Simultaneously (New York)
In another bizarre first responder scenario that has not yet played out in court, in October 2019, two EMTs were taken to a New York hospital in critical condition for injuries sustained while responding to a minor crash on the Brooklyn Queens Expressway. The first EMT, 63-year-old Glinane, suffered a stroke as he proceeded in an ambulance to the crash, causing him to swerve to the side of the road near the original crash. Wang, a 47-year-old EMT was in a second ambulance, doing a ride-along with a physician. They stopped to assist with the crash. Suddenly Wang became unconscious, suffering an aortic aneurysm. Both EMTs were rushed to the hospital for emergency treatment. Other EMTs were able to render aid without themselves suffering injury.
Larson § 20.02
CASE #8 Prom Queen Meets Bambi: EMTs May Suffer PTSD After Encounter with Stephen King’s “Carrie” (Ohio)
Several Ohio first responders suffered a frightful experience when they responded to an auto accident involving a young Marshall University student late one evening about a week before Halloween 2019. The young woman’s car had sustained considerable damage when it was struck by a deer in South Point, Ohio. The young woman was dressed in an unusual fashion: prom dress and tiara. She was covered in blood and appeared to be bleeding profusely from the head and upper torso. As it turned out, the young woman was a stand-in heading to Sue Snell, the famous/infamous character in a musical adaptation of Stephen King’s “Carrie.” The student, who didn’t suffer injury in the encounter with the deer—I wish we could say that about the deer—reported that the first group of first responders kept asking her if she needed medical assistance. Indeed one of them thought she was surely dead. The second group of EMTs, unaware of the stage makeup the student was wearing, turned to their already-arrived colleagues and said, “Are you just gonna ignore that blood is dripping and she needs medical assistance?” While the first responders may yet suffer PTSD, they will likely get a further shock: Ohio provides no benefits for mental injuries unaccompanied by physical injury.
Larson § 56.04
CASE #9: Pastor’s Vehicle “Impaled” by Huge Tree (North Carolina)
If the minister of Yellow Hill Baptist Church, near rural Cherokee, North Carolina is asked if he believes in miracles, he merely points to one of several photos taken of his pickup truck following a bizarre accident that occurred in mid-May 2019 as he began his rounds within his mountainous North Carolina parish. The photos show the horizontal trunk of a 25-foot long, 15 in. diameter tree that had “impaled” his pickup, crashing through the windshield, with more than eight feet of the trunk sticking out the back. The minister had been sitting inches away as the huge tree came crashing through the air in the early morning darkness. The preacher, who himself suffered more of a glancing blow, lost consciousness briefly and sustained multiple cuts and bruises, but otherwise came through the eschatological moment somewhat shaken, but resolute. As a native North Carolinian myself, I’m familiar with the raw beauty of that heavily-wooded area near the winding Nantahala Gorge. Fallen trees can be a real hazard. “Ministers, y’all be careful out there, ya hear?”
Larson § 14.01
CASE #10: Idle Hands are the Devil’s Workshop (New Mexico)
Paraphrasing a New York appellate court in a classic horseplay decision, Meigel v. General Foods Corp., 2 A.D.2d 945, 156 N.Y.S.2d 420 (1956), young people cannot be expected, during slack periods, merely to sit in idleness and gossip. The employer must expect that they will engage in some form of frivolity. And so it was for an overnight shift booking specialist at Curry County (New Mexico) Adult Detention Center. Because the job entailed considerable periods of “downtime,” the worker and her supervisory sergeant often would often engage in “lighthearted” play. Although horseplay was specifically banned by a provision in the employment manual—a perpetrator could be subjected to disciplinary action—the two often tried to draw or write on each other with an office marker or “pretend” to spray each other with bug spray. On the evening in question, the worker tripped while being chased by sergeant. She fell and broke her ankle. She filed a workers’ compensation claim. When a surveillance camera disclosed what had actually happened, the two were fired. The appellate court affirmed, however, an award of workers’ compensation benefits, finding that horseplay had become a regular incident of the employment environment. Here, the court stressed, any deviation from the employment was brief and incomplete.
Motes v. Curry County Adult Detention Center, 2019-NMCA-022, 2018 N.M. App. LEXIS 73 (Nov. 28, 2018), cert. denied, No. S-1-SC-37445 (May 1, 2019). Released for Publication July 2, 2019.
Bonus Case—Vive L’Amour: Injuries Sustained Following French Tryst Are Compensable
According to a New York Times report, last year a French court awarded that country’s version of workers’ compensation benefits to the estate of a worker who died from a heart attack after having sex during a business trip. The “victim,” who worked as a security technician for a rail engineering company, had traveled to the Loiret region in central France as part of his work assignment. After work one evening, he had sex with a woman at her house and succumbed later after he had returned to his hotel. It seems France employs a rule quite similar to that utilized by a number of American jurisdictions—that employees whose work entails travel away from the employer’s premises are typically held to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. The amorous activity was deemed not to be a sufficient deviation as to remove the technician from his employment.
Larson § 25.01