The Top 10 Bizarre Workers’ Comp Cases for 2018
Annual “Bizarre” List Began More Than 30 Years Ago
More than 30 years ago, my mentor, Dr. Arthur Larson, and I began a quirky New Year’s tradition. Early one January evening, we sat together in his home on Learned Place, near Duke University’s campus here in Durham, North Carolina, sipped an adult beverage, and compared our respective lists of the previous year’s “bizarre” workers’ compensation cases. We continued that tradition until his death. A few years later, I decided to reprise the annual list.
I pulled together my choices, gleaned from my work on Arthur’s treatise, and sent them out in early January to about a dozen colleagues. They enjoyed my sharing and for the next four or five years, I expanded the list of “subscribers” until my good friend and collaborator, Robin Kobayashi, J.D., skilled editor/writer at LexisNexis, suggested I that I take advantage of technology to broaden my reach.
I took her advice and for the past dozen or so years, I have continued the annual “review of the bizarre” in electronic form. 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 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. My intent is not to trivialize their injuries and claims. Instead, I propose that life often has its bizarre moments and, since the workers’ compensation world is quite representative of the larger world around it, the cases we see each year sometimes have quirky, truly bizarre, fact patterns.
And so, in the spirit of my annual January ritual, I offer ten bizarre published cases (in no particular order), and half a dozen others that, although truly bizarre, didn’t make their way to our appellate courts (yet?). If you know of others that fit the category, please send them along to me tom@workcompwriter.com.
[Author’s Note: Citations link to Lexis Advance, www.advance.lexis.com.]
CASE #1: Just When You Thought it was Safe to go to the Doctor (Oklahoma)
An Oklahoma claimant, who sustained a compensable 2008 injury to various body parts, including the left knee and cervical spine, had sought treatment in 2012 for continued cervical discomfort. She traveled to a nearby medical facility, underwent a steroid epidural injection to her cervical spine, and then was to be wheeled into the recovery area for observation. Inexplicably, medical personnel placed her in a wheelchair that had no foot rests. This, in spite of the fact that she was still partially under sedation. As they wheeled her to recovery, her feet drug on the floor, her knees went underneath the wheelchair, and she was suddenly thrown forward to the hard floor, causing additional injury to her knee. The employer contended the actions of the medical personnel constituted an intervening action, but the Workers’ Compensation Court—and the Supreme Court—disagreed. Claimant was entitled to additional compensation.
City of Tulsa v. Hodge, 2018 OK 65, 429 P.3d 685 (2018)
Larson § 10.09
CASE #2: “Summertime, and the Livin’ is Easy” or, Should Some Actors Get “Hazard Pay?” (Illinois)
This case comes from an adaptation of Dr. Larson’s favorite American “opera”, George Gershwin’s magnum opus, Porgy and Bess. In a Chicago production of the popular musical play, the claimant portrayed the character of Porgy, a physically disabled adult. He testified that portraying Porgy required that he spend most of the performance sitting on his left hip and dragging himself around stage with his upper body, primarily his left arm. He testified that during one such performance, at the beginning of the second act, he “felt a pop and felt pain” as he dragged himself with his left arm from one section of the stage to another. The claimant eventually underwent shoulder surgery. The Commission awarded benefits. The Illinois appellate court acknowledged that there was some conflict in the evidence presented but added that it was for the Commission to resolve those conflicts and that it had done so.
University of Chicago v. Illinois Workers’ Comp. Comm’n, 2017 IL App (1st) 170268WC-U, 2017 Ill. App. Unpub. LEXIS 2023 (Sept. 29, 2017)
Larson § 42.01
CASE #3: “The Sheriff’s Gettin’ Up a Posse” or, “On Being Neighborly” (California)
In a case involving an utterly bizarre fact pattern, a California appellate court held that a civil action for negligence and misrepresentation filed by two private citizens against a California county was barred by the exclusive remedy provisions in Cal. Labor Code § 3366 (California’s “posse” law). The two citizens, a husband and wife, did not work for the county. They were telephoned by a Trinity County deputy who asked them — because of their proximity to “the incident” — to “check on” a neighbor who had placed a 911 call for help. According to the plaintiff’s allegations, the deputy indicated the call was likely related to inclement weather. The deputy omitted information that suggested potential criminal activity at the neighbor’s residence. Plaintiffs unwittingly walked into a murder scene and were brutally attacked by the man who apparently had just murdered their neighbor and her boyfriend. The court held their tort suit barred. Under § 3366, any person “assisting any peace officer in active law enforcement service” is deemed to be an employee of the public entity for whom he or she is “serving,” and workers’ compensation benefits are the exclusive remedy afforded for any injury.
Gund v. County of Trinity, 24 Cal. App. 5th 185, 234 Cal. Rptr. 3d 187, 83 Cal. Comp. Cases 1042 (2018)
Larson § 28.03
CASE #4: Smoking Can Be Hazardous to Your Health (North Carolina)
In a truly unusual case from North Carolina, an appellate court affirmed the denial of benefits to a municipal worker who suffered injuries when he fainted and collapsed after getting choked on an e-cigarette. The worker and his crew had decided to take a lunch break at a Sheetz fueling facility. The worker at his lunch inside a City of Winston-Salem truck, while the other employees sat at a table outside the fueling facility. After finishing his lunch, the municipal worker went into the facility, decided to buy an e-cigarette—a type of cigarette he had never previously smoked. He returned to the City's truck after making the purchase and began smoking the e-cigarette while sitting inside the vehicle. As he began to puff on the product, he began to cough “uncontrollably.” In order to get some fresh air, he opened the vehicle's door and stepped out of the truck while continuing to cough. The worker then "passed out and fell to the ground." He landed on the cement curb, causing injury to his right hip, back, and head. A board-certified orthopedist diagnosed him with "L3, L4 transverse process fractures." Stressing the crucial difference between an “unexplained” fall and an “idiopathic” fall, the appellate court affirmed the denial of benefits, observing that the Commission’s denial had been based upon its finding that the worker’s fainting and fall resulted from the worker’s idiopathic conditions — extreme hypertension, highly elevated blood sugar levels, and a vasovagal reaction to his coughing and choking upon taking his first puff of the e-cigarette — and not to work-related risks.
Brooks v. City of Winston-Salem, 816 S.E.2d 260 (N.C. Ct. App. 2018)
Larson § 9.03
CASE # 5: At Least There Were Plenty of First-Responders Nearby (Virginia)
A Virginia appellate court held that an emergency room paramedic, who sustained serious injuries when he fainted while assisting a physician in an ER procedure, was not entitled to workers’ compensation benefits. The paramedic had been asked to assist the physician by standing in front of a patient to stabilize him during a lumbar puncture procedure—a medical intervention that involved inserting a needle into the patient’s spine. The paramedic testified that as he observed the procedure, he felt “light-headed” and “dizzy.” He lost consciousness and fell to the concrete floor, sustaining a skull fracture and hematoma. His injuries required emergency surgery that day. The appellate court acknowledged that the injuries were sustained in the course of the employment but ruled that the paramedic failed to show that they actually arose from the employment. Repeating that Virginia uses the so-called “actual risk test,” the court indicated the paramedic failed to show that the causative danger was peculiar to the work environment and not merely common to the neighborhood. The court also stressed that while the EMT had established a correlation between the particular spinal procedure and his loss of consciousness, he had failed to show an actual causal relationship between the two. Medical records indicated there were other potential causes that he had not ruled out.
Lynchburg Gen. Hosp. v. Foster, 2018 Va. App. LEXIS 90 (Apr. 10, 2018)
Larson § 9.01
CASE # 6: “Knock Knock,” “Who’s There?” (Federal Court)
Martyn Baylay, a British citizen, worked as a pilot for Etihad Airways, an airline operated out of the United Arab Emirates. As a part of his duties, Baylay was assigned to a flight crew that also included Saravdeep Mann. The crew members flew from Abu Dhabi to Chicago. After arrival, Etihad arranged for the crewmembers' transportation to a Chicago hotel for an overnight layover. Subsequent testimony indicated the crew members drank pre-dinner cocktails together that night, where Mann consumed a significant amount. Baylay later testified that it appeared to him that Mann had imbibed before meeting the group. Further testimony indicated that Mann downed even more alcohol during dinner and then expressed anti-American and anti-British views while emphasizing his distaste for the British by placing his hands around Baylay's throat. Mann left the restaurant without paying his bill and without his coat. The crew members settled Mann's bill, and Baylay offered to take Mann's coat and return it the next day. Back at the hotel, Baylay heard a knock on the door of his hotel room and saw Mann standing outside his room. Thinking Mann was there to apologize for his earlier actions and collect his coat, Baylay opened the door. Mann struck him on the head and leg with a bronze hotel decoration. During the attack, Mann threatened Baylay, saying, "I'm going to kill you. You f**king British bastard." Baylay managed to escape, took the elevator to the lobby of the hotel, and was then transported to Northwestern Memorial Hospital. Mann was arrested and transported to the Chicago Police Department. The Seventh Circuit held the matter fell within the jurisdiction of the Illinois Workers' Compensation Commission in spite of the Foreign Sovereign Immunities Act.
Baylay v. Etihad Airways P.J.S.C., 881 F.3d 1032 (7th Cir. 2018)
Larson § 100.03
CASE #7: Accountant’s Fatal Shooting by Disgruntled Former Client Found Compensable (Alabama)
In one bizarre and tragic Alabama case, the Court awarded death benefits to the surviving spouse of an accountant who was stalked and then shot to death by an assailant who blamed the accountant for tax problems in his business. One year before the fatal incident, the disgruntled assailant’s former business partner had warned one of the CPA firm’s partners that the assailant blamed the accountant (and the firm) for tax fines, penalties, and other tax-related issues, saying “Y’all need to be careful.” On the day of the incident, the assailant first went to the office of a local attorney, whom the assailant held at gunpoint to coerce the attorney into telephoning the assailant’s former business partner and requesting, under false pretenses, that the partner come down immediately to the attorney’s office. The assailant shot the business partner as he arrived and attempted to shoot the attorney, but the gun jammed. The assailant then apparently went to the office of his current accountant but was unsuccessful in gaining entry there. He thereafter entered the offices of the CPA firm that employed the deceased, found her, and fatally shot her three times. The appellate court acknowledged that an intentional assault did not arise out of the employment if it was committed because of reasons personal to the employee and not because of his or her status as an employee or because of his or her employment. The court said that here, although the murder was an intentional act on the part of the murderer, it amounted to an accidental injury (death) arising out of the employment. The court noted that the undisputed evidence showed that the assailant intentionally assaulted and killed the account not out of any personal ill will, but solely because of their working relationship. Immediately before opening fire on the accountant, the assailant unmistakably expressed his intent to kill her because she had “f-‘d up [his] taxes." The record contained no evidence of any other possible motivation for the assault.
Lawler & Cole CPAs, LLC v. Cole, 2018 Ala. Civ. App. LEXIS 115 (July 13, 2018)
Larson § 8.01
CASE #8: And You Thought Texting While Driving Was Dangerous! (Federal Court)
Doutherd, who was operating a loaded transport truck and trailer owned by defendant UPS, sustained injuries in a collision with a second vehicle being driven by defendant Montesdoeca. According to plaintiff’s version of the incident, at the time of the accident, Montesdoeca was fighting with a male passenger in the back seat of her vehicle when she lost control, careened into the highway divider, and then rebounded from the divider, smashing into the front passenger side of the truck being driven by plaintiff. Doutherd contended that his injuries did not stop with the accident, that the workers’ compensation insurance company handling the claim acted inappropriately, so Doutherd filed a tort action in federal district court against the company (and others) alleging, inter alia, concealment, fraud, negligent interference, and bad faith breach of contract. The federal district court observed that, generally speaking, the carrier had been sued for its role in the alleged mishandling of plaintiff’s workers’ compensation claim. The federal court noted that the right to recover worker's compensation benefits was the sole and exclusive remedy available to an injured employee against his or her employer or the employer's insurer. The district court acknowledged a narrow exception where the actor, by its alleged acts or motives, was no longer acting as an employer/insurer. Here, the court found the plaintiff’s allegations did not fall within that narrow exception.
Doutherd v. Montesdeoca, 2018 U.S. Dist. LEXIS 137583 (E.D. Cal. Aug. 14, 2018)
Larson § 114.02
CASE #9: Assault by the Parking Garage Kiosk! (New York)
An employee, who sustained a shoulder injury as she reached out of her car window to scan her parking pass at a parking garage kiosk near her place of employment, did not sustain an injury arising out of and in the course of her employment, held a divided New York appellate court in a decision affirming that finding by the state’s Workers’ Compensation Board. The majority acknowledged that parking lot injuries could be compensable if the lot constituted part of the employer’s premises. While the parking lot in question had an area specifically dedicated to building tenants—including the respective employer—and while the employer provided free parking to the injured employee and assigned her a special parking space, the majority noted the garage was not owned nor maintained by the employer, but by third parties. The majority also stressed that the parking garage/lot was open to the public, who could access the area by taking a ticket at the same kiosk that the employee used to scan her parking pass. The majority acknowledged the evidence would also have supported a contrary result but held there was substantial evidence to support the Board’s decision.
Matter of Grover v. State Ins. Fund, 165 A.D.3d 1329, 85 N.Y.S.3d 239 (3d Dept. 2018)
Larson § 13.04
CASE #10: Close Encounters of Another Kind (Ohio)
In yet another bizarre parking lot case, a worker who alleged that he sustained injuries when he was physically assaulted by the husband of a co-worker and then intentionally struck by the husband’s vehicle as the worker tried to block—with his body—the path of the assailant, did not sustain injuries arising out of and in the course of the employment, held an Ohio appellate court. According to the injured worker’s testimony, he arrived at the employer’s parking lot some ten minutes before check-in time. He could not easily proceed into the lot, however, because the vehicle path was blocked by a stopped vehicle driven by the husband of a co-worker. The husband had dropped off his wife for work but had not moved his auto. The worker said he drove around the stopped car and then proceeded to park, where he was accosted by the husband. The worker said he first tried to call 9-1-1 regarding the assault and then sought to prevent the husband from driving away by standing in front of the vehicle at the exit gate. He claimed he was then struck by the husband’s vehicle, which was moving at perhaps 10 to 15 mph. The appellate court agreed that there was insufficient connection to the employment to sustain a claim for workers’ compensation benefits. The two men had never met, and the worker did not know or work directly with the wife.
Garner v. Bureau of Workers' Comp., 2018-Ohio-3398, 2018 Ohio App. LEXIS 3675 (Aug. 24, 2018)
Larson § 8.02
Additional Bizarre Unreported Cases
While my custom has been generally to limit my selection only to those cases that reach the appellate courts, in recent years I’ve also included a few others that warrant inclusion—because of the bizarre nature of the facts (or alleged facts)—in spite of the fact that the relevant claim has not made its way beyond the state administrative board or agency.
Injured Worker Accidentally Kicked by Doctor’s Receptionist (Missouri)
A friend and colleague, Martin A. Klug, experienced workers’ compensation attorney with the firm, Huck, Howe & Tobin, in Clayton, Missouri, sent me this one. The case turned on an unrelated legal issue, but in short, an employee complained of throat and eye irritation, coughing and wheezing after exposure to Cypermethrin sprayed around air conditioning units in her work place to control ants. She sought emergency room treatment and, thereafter, returned to work without limitations. Later, in response to the employee's continued complaints, the employer sent her to occupational and environmental medicine specialist, Dr. Eddie Runde, for additional evaluation. The employee sat in the waiting room where one other patient was present, along with the patient’s small dog. When it came time for the employee to see the doctor, a receptionist escorted her from the waiting room to the patient area and, in the process of attempting to divert the little dog, accidently kicked the employee under her right knee, causing her to trip and fall on her knees. The ALJ found that the injuries sustained at the doctor’s office were compensable since they arose out of her original injury.
Taco Bell Worker Arrested In "Hot Burrito" Assault (South Carolina)
Last January, a Spartanburg, South Carolina Taco Bell employee was arrested after allegedly throwing a “hot burrito” at his manager because he was “upset over having to work the morning shift.” Spartanburg cops were called to a Taco Bell on January 22, 2018 after employee got into a dispute with his manager.
The manager told an officer that the employee was upset over his work schedule and “was getting into several verbal disputes with other coworkers.” The manager added that when she told the employee to “stop being a crybaby,” he exploded, slinging a loaded burrito at her. The manager told police that “the melted cheese got all over [her] left arm and went all down [her] left side and leg.” The manager added that the airborne burrito “made a mess of the entire kitchen as well, getting cheese over all the appliances.” Additional testimony indicated that before storming out of the fast food restaurant, the employee “took off his headset and broke it on his knee and threw it on the ground, causing it to break into several pieces.” The employee was later arrested for misdemeanor assault. The manager recovered from her injuries.
Elk Brings Down Helicopter Causing Injury Two-Person Crew (Utah)
In a bizarre story reported by KUTV, Salt Lake City UT, on February 14, 2018, a helicopter crashed in Wasatch County, Utah, near Currant Creek Reservoir. The state’s Division of Wildlife Resources (“DWR”) had contracted the helicopter, which was staffed with a two-man crew from Australia. The crew was attempting to net an elk, sedate it, and fly it back to put a collar on it for further study by a biologist. The elk didn’t like the idea, jumped, and almost severed the chopper’s tail rotor, ending the flight abruptly. While both members of the crew sustained minor injuries, the incident proved fatal for the elk. Law enforcement officers commented, “Not something you see every day when an elk brings down a chopper."
“Oh, Deer:” Animal Crashes Through Patrol Car Window (South Carolina)
Wildlife not only can prove problematic for helicopters; it can be destructive for police cruisers. On December 4, 2018, multiple reports were provided regarding a South Carolina police officer who escaped serious injury when a deer, struck by another motorist, went airborne and crashed through his patrol car windshield, landing in the cruiser’s front seat. According to official reports, the Dorchester County Sheriff's Office deputy spotted the deer approaching the road on a highway outside Charleston. As the deputy stopped his vehicle to allow the animal to clear the road, another car hit the deer, sending it into the air. The deer smashed through the police car’s windshield, landing in the passenger seat. The deputy and the other driver sustained only minor injuries. The deer, unfortunately, was killed in the collision.
Roofer Kills Co-Worker With Circular Saw (Wisconsin)
In a story reported on August 7, 2018, a 37-year-old construction worker was killed in rural River Falls, when he was apparently attacked by a co-worker wielding a circular saw. According to one story, the alleged assailant was being teased and thought he was being drugged. The deceased, who suffered severe lacerations of the head and neck, was pronounced dead at the scene. A bloody circular saw was found on the ground at the scene.
Amazon Employees Injured by Punctured Can of Bear Spray (New Jersey)
On December 11, 2018, an incident at a Robbinsville, New Jersey Amazon facility resulted in serious injury to one female employee and minor injuries to as many as two dozen other employees. Witnesses at the scene indicated that an automated machine at the facility punctured a 9-ounce can of bear repellent containing Capsaicin, an active component in chili peppers, spraying it near the affected group of employees. Amazon released a statement about the incident: "All of the impacted employees have been or are expected to be released from hospital within the next 24 hours. The safety of our employees is always our top priority and a full investigation is already underway. We'd like to thank all of the first responders who helped with today's incident."