The Top 10 Bizarre Workers’ Comp Cases for 2020

As I have noted many times on this blog site and elsewhere, 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 “list” languished for a few years but 16 years ago, I began to craft my own annual list—in memory of Arthur—sending it out to a few colleagues via snail mail. I launched this blog site in December 2011, and I migrated the annual list to it 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.”

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 that I hope give you a chuckle. Who knows? You might even learn something. In as much as “the virus” dominated our world in 2020, the first three selections are related to it. Compensability in each of those three cases is indisputable; they are not likely to make the appellate courts. The other decisions are offered in no particular order.

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

CASE #1: Delay in Receiving COVID-19 Stimulus Check Tied to Postal Worker’s Death (Indiana)

Illustrating the fact that the effects of COVID-19 reach beyond the mere transmittal of the virus, a federal postal worker in Indianapolis was shot and killed by a disgruntled resident in late April 2020, apparently in a dispute over a delay in getting a stimulus check. Prior to the incident, mail delivery at the assailant’s residence had been suspended because of the presence of an aggressive dog. The assailant happened to be on a neighbor’s porch when the postal worker approached the neighbor’s house to deliver the neighbor’s mail. An argument ensued. According to officials, the postal worker sprayed the assailant with mace. The assailant responded by shooting the postal worker once in the chest. Ultimately, the assailant was charged with second-degree murder. There appears to be no issue that the postal worker’s family is due death benefits, so this case won’t likely make any appellate reports.

Larson § 8.01

CASE #2: “Mind Wearing a Mask?” (Maryland)

In late November 2020, a Glen Burnie (Maryland) bowling alley manager was hospitalized and another employee injured when the two were assaulted by disgruntled customers who had refused to follow state mandates and wear face masks. The male patrons had earlier entered the building and had intended to do some bowling, but they refused to don masks when asked to do so. The manager asked the group to leave, pointing out that the mask requirement wasn’t his rule, but one handed down by the State of Maryland. One of the men pushed the manager, who then escorted the group outside the building. Once outside, however, one of the men punched the manager, knocking him to the ground. Several others then began to kick the manager, who struggled helplessly at their feet. When a co-worker came out to assist the manager, he was assaulted as well. In the end, the manager had to be hospitalized. The co-worker’s injuries were not as serious. The police have been attempting to determine the identity of the assailants.

Larson § 8.01

CASE #3: “Table for 13, Please”: COVID-19 Social Distancing Regulations Linked to Assault on Restaurant Hostess (Louisiana)

In another assault case arising out of the COVID-19 pandemic, a 17-year-old hostess at a Baton Rouge Chili’s restaurant sustained injuries in August 2020, when she was attacked by restaurant patrons because she had refused to seat a party of 13 at a single table. The restaurant had established social distancing rules, allowing no more than six customers to sit together at any table. A group of 13 women entered the restaurant and the young hostess told them about the seating limitations. She proceeded to try to seat the “ladies” at multiple tables. Dissatisfied with the arrangements, one of the patrons pushed the hostess. Another hit the hostess over the head with a “wet floor” sign. The resulting cut over the hostess’s eye required five stitches to close. The police later used surveillance video to track down and arrest a number of the assailants. The hostess now says she is afraid to return to work. A GoFundMe account to help the hostess with future college expenses–she indicated she had been working part-time to save money for her education–was established. Reports indicate more than $35,000 has been contributed to the fund. The claim has not reached the appellate courts.

Larson § 8.01

CASE #4: A Room With a View; But No Balcony (Texas)

The normal rule associated with traveling employees is that they ordinarily enjoy portal to portal protection. So, for an employee traveling to a foreign location, injuries sustained even during off-the-clock hours are usually held to be within the course and scope of the employment. An exception exists when there is a true deviation from the employment, however. That was at issue in a tragic case involving an employee, Riggs, who worked for 3M in Texas. He was sent to Singapore to assist with a new facility. Upon arrival during the morning hours there, he had breakfast and then spent most of the day napping in his room. That evening, Riggs spent some time first at a “cocktail” hour, then skipped supper. Riggs and a co-worker continued to imbibe, particularly after meeting a group of people from Louisiana. Still later, Riggs decided to return to the hotel, leaving his co-worker behind with the Cajuns. The co-worker subsequently testified that when he last saw Riggs, as the latter headed for the hotel, Riggs was “excessively intoxicated” and acting out of character. The next morning, Riggs’ lifeless body was found in a grassy area outside the hotel underneath the window of his sixth-floor hotel room. Riggs appeared to have left his room through the window to access a balcony that was not attached to his room. Riggs’ widow filed a claim for workers’ compensation death benefits. Following a contested hearing, the DWC Hearing Officer determined that the death did not arise out of and in the course of the employment. The appellate court affirmed. The deviation was too great. The deceased’s actions had nothing to do with his employment.

Riggs v. Old Republic Ins. Co., 2020 Tex. App. LEXIS 7975 (Oct. 1, 2020)

Larson § 25.02

CASE #5: “Comfort” Animal Needs Some Additional Training (Texas)

Robinson (no relation to the author) and Cox worked at an adoption organization in Fort Worth, Texas. The facility provided residential aid and other assistance to young women who had decided to give up their soon-to-be-born infants for adoption. Robinson worked as a house parent and Cox served as the organization’s general counsel and executive vice-president. Some evidence indicated that a number of the organization’s birth mothers had asked Cox to bring her dog–a border collie–to the residence area to serve as a “comfort” animal. Robinson countered that the real reason Cox brought the animal was because it had been chewing on Cox’s residential furniture. In any event, there was no evidence that the dog had ever received any special “comfort” animal training. Robinson contended that on the day of her injury, instead of chewing on the furniture, the dog attacked and chewed on her. Robinson received workers’ compensation benefits, but then sued Cox in tort, alleging strict liability and negligence. Cox countered that Robinson’s tort action was barred by the exclusive remedy provisions of the Texas Workers’ Compensation Act. The trial court granted Cox’s motion for summary judgment and subsequently, the state appellate court affirmed.

Robinson v. Cox, 2020 Tex. App. LEXIS 9441 (Dec. 3, 2020).

Larson § 111.03

CASE #6: “Ok, You Pretend You’re the Bad Guy and Attack Me” (Mississippi)

Reminding us yet again that tragedies can occur within the blink of an eye, a Mississippi appellate court affirmed a state trial court’s decision granting summary judgment to the state, as employer, on workers’ compensation exclusive remedy grounds, following the fatal shooting of a state Gaming Commission employee during a firearms training exercise. The firearms training instructor, well-known as an expert in safety and protocols, was engaged in teaching a small group of employees the basics of firearms use. He asked the deceased to take on the role of “aggressor” and move toward the instructor in a threatening fashion. The deceased did so; the instructor drew his service revolver and fired one live round of ammunition into the chest of the deceased. The deceased’s family recovered workers’ compensation death benefits, but instituted a tort action against the state, contending it should be liable. The appellate court agreed with the trial court’s decision to grant the state summary judgment. The evidence clearly supported a finding of negligence–quite possibly even gross negligence–but this was insufficient to avoid the exclusive remedy defense in Mississippi.

In the Estate of Gorman v. State, 2020 Miss. LEXIS 506 (Dec. 17, 2020).

Larson § 103.03

CASE #7: Itsy, Bitsy Spider (Virginia)

Virginia employs what it calls the “actual risk” test in determining the compensability of some workers’ compensation claims. In a word, the Virginia claimant must show that he or she faced greater risk of injury (or death) within the employment than one would face in one’s ordinary life. In this contested case, claimant sustained a bite from a brown recluse spider. She contended that the bite occurred at work, but she admitted that while she felt a “bite” on her foot as she sat at her desk, she did not see the spider that bit her (if one indeed bit her at that time). She did testify, however, that on that same day, she had seen spiders on and near her desk. Other testimony indicated that work had been performed in a boiler room directly beneath the worker’s office and that it had likely stirred up spiders and insects. Another worker testified that on one occasion, she saw a small spider hanging in midair right above claimant’s desk. Acknowledging that there was, of course, some risk in encountering spiders in one’s ordinary life, the appellate court said the claimant had shown sufficiently that she faced an “actual risk” of the bite, based on all the attenuating circumstances at her workplace.

James Madison Univ. v. Housden, 2020 Va. App. LEXIS 63 (Mar. 10, 2020).

Larson § 5.06

CASE #8 Diligent Employee Worked to Death (Virginia)

Holiday staffing, coupled with co-workers’ unanticipated permanent departures, can make for a dangerous employment situation for those on duty. During the Christmas 2016 holiday period, a master electrician became stretched quite thin. He functioned as one of the lead technicians for an office park in Falls Church. In addition to his ordinary shift, he was often on-call during the hours outside his normal work shifts. That fact, coupled with the length of his commute–he lived some 45 minutes away, in good traffic–meant he sometimes stayed on the job for more than 24 consecutive hours. On December 20, 2016, he completed his shift, went home, and was soon called back because some people had gotten stuck in one of the elevators. He drove back to the office park, fixed the issue, and drove back home. As soon as he arrived, he was called back for yet another emergency. When he returned, he worked for some time with his supervisor until the two resolved the issue. He stayed onsite until 7:00 a.m., December 21. Unfortunately, his next work shift was scheduled to begin at 10:00 a.m., so he apparently decided to get some rest in his truck and then return to work. He didn’t show up at 10:00 a.m., however, and he didn’t show up at home after the end of his anticipated shift. Family members and others searched for him, along with police, but to no avail. On December 24, 2016, his family located his van parked in a vacant parking garage approximately 75 to 100 yards from his work. The worker was sitting in the truck’s second-row seats, deceased. He was still dressed in his work clothes and had a blanket draped over his legs. His phone was on the floor and his work tools were in the back of the van. Decedent’s cause of death was later determined to be carbon monoxide poisoning. In a split decision, the Virginia Commission affirmed an award of death benefits. The appellate court affirmed. The core question, said the appellate court, was not the closeness of the relation between the injury [i.e., carbon monoxide poisoning] and the employee’s work duties; the key was whether the employment relationship caused the employee to be exposed to the injury by accident. Having insufficient time to return home and needing rest, it was not unreasonable for the decedent to chose to use his vehicle as a place of refuge. There was no evidence he had any designated workspace within the building. The death was compensable under the personal comfort doctrine.

Newman Knight Frank v. Estate of Williams, 2020 Va. App. LEXIS 273 (Nov. 4, 2020).

Larson § 21.08

CASE #9: Attack of the Flesh-Eating Bacteria (Wyoming)

We’re occasionally reminded that innocuous beginnings can nevertheless lead to disaster. Such was the experience of a Wyoming employee who worked underground at his employer’s trona mine (trona is process into soda ash or baking soda). One day, after he had completed his work shift, he went into the employee’s locker room. He inadvertently struck one of his knuckles on a metal lockers, but didn’t think too much about it at that time. Later, however, the small cut on his finger became infected with Group A beta-hemolytic streptococcus (Strep A)–more commonly known as flesh-eating bacteria. The worker had to be hospitalized. The condition required aggressive treatment for more than a month before it came under control. The employer denied the workers’ compensation claim, citing Wyoming’s unusual “illness or communicable disease” exclusion set forth in Wyo. Stat. Ann. § 27-14-102(a)(xi)(A) (LexisNexis 2019). The statute–since amended for COVID-19–generally disallows recovery for illnesses and communicable diseases. The Wyoming Department of Workforce Services, Workers’ Compensation Division (Division) awarded benefits, but the Office of Administrative Hearings (OAH) decided the worker’s injuries were not compensable because of the exclusion. The appellate court reversed. The Court stressed that the OAH had improperly identified the employee’s “injury.” The injury was not the contraction of the flesh-eating bacterial disease. Rather, it was the original knuckle injury. The employee had sufficiently shown his original injury occurred in connection with his work. The bacterial was a consequential condition that developed as a result.

In re Worker’s Comp. Claim of Vinson, 2020 WY LEXIS 126, 473 P.3d 299 (Sept. 28, 2020).

Larson § 10.02

CASE #10: “Irony of Ironies:” IRS Employee Says Workers’ Comp “Red Tape” is Excessive (United States)

Bizarre, not unlike beauty, generally lies within the eye of the beholder. To my mind, a case can be bizarre even when the underlying injury is quite ordinary. Consider, for example, the claim of an IRS employee who sustained injuries in a rather mundane slip and fall accident outside the federal building where she worked. She filed a claim and the Department of Labor accepted it for back and shoulder injuries. Later, however, the level of irony became so thick that it could be stirred with a spoon. The IRS employee complained of the work required to gather records related to her injury and medical expenses. She added that she became frustrated when federal bureaucrats erroneously completed some of her paperwork. Fancy that. Oblivious to the “pain and suffering” borne by the nation’s taxpayers each year as they try their best to wade through the extensive Tax Code and volumes of regulations, she sued the IRS Workers’ Compensation Branch and the Community Health Network in tort, claiming she should be reimbursed for the time and effort it took her to complete the paperwork related to her claim. The U.S. District Court determined that her sole remedy was under the Federal Employees’ Compensation Act. She’d just have to learn to deal with the paperwork.

Coachman v. IRS Worker Comp., 2020 U.S. Dist. LEXIS 37226 (S.D. Ind. Mar. 4, 2020).

Larson § 100.03