NV Cannabis Dispensary’s Employee Might Recover for Injuries Sustained in Altercation with Customer
Finding that a Nevada appeals officer had focused too narrowly on an employee’s work-related duties and had not considered the totality of the circumstances in determining if the employee’s injury had arisen from a risk of the employment, a Nevada appellate court, in an unpublished decision, reversed a decision that had denied coverage for injuries sustained by an employee of a cannabis dispensary who sustained a fractured hip in an altercation with an unruly customer [Durst v. Silver State Cultivation, 2022 Nev. App. Unpub. LEXIS 67 (Feb. 17, 2022)]. Quoting extensively from Larson’s Workers’ Compensation Law, the court said the case must be remanded for a proper determination as to whether the employee’s actions in trying to restrain the customer had been undertaken in good faith in an effort to assist a co-employee in the latter’s performance of his work.
Background
On the date of his injury, Durst observed one of his coworkers seeking the assistance of their supervisor, Dolan, in handling an agitated customer. Durst heard Dolan tell the customer that they could not help him and that he must leave the dispensary. Durst later testified that at the time he believed two persons might better convince the agitated customer to leave, so he left his work station and went to assist Dolan. As the trio—Durst, Dolan, and the customer—walked toward the exit, the customer made physical contact with Dolan (the supervisor). Durst said that he feared for Dolan’s safety, and so he put the customer in a bear hug. In the ensuing struggle, Durst and the customer fell to the floor and Durst fractured his hip.
Workers’ Compensation Proceeding
Durst sought workers’ compensation benefits for his injuries, but the insurer denied the claim. A hearing officer reversed the insurer’s determination and the employer and carrier appealed. At a hearing before the appeals officer, the employer introduced a one-page excerpt from the company policy containing a workplace violence prevention policy that provided, in part, that if appropriate, employees were to call local law enforcement; they were not to place themselves in peril. At the hearing, Durst acknowledged that he was aware of the employer’s policy.
Appeals Officer’s Findings
The appeals officer issued a decision and order reversing the hearing officer’s decision, thereby denying Durst’s claim for industrial insurance benefits. The appeals officer made several findings. In relevant part, the officer found that Durst had “inserted himself” the situation, that he had “escalated the situation from words into a physical altercation with the customer,” and that Durst had placed himself in peril when he grabbed Lester. In the findings, the appeals officer stressed that Durst had not been required, as part of his work duties, to render assistance had his belief that Dolan was about to be punched, been correct. The appeals officer ultimately concluded that Durst did not establish a compensable injury arising out of the incident. Thus, the officer reversed the hearing officer’s decision and accordingly affirmed the carrier’s initial denial. Durst appealed, but the district court affirmed the appeal officer’s decision, concluding that it was supported by substantial evidence and the correct legal standards had been applied.
Appellate Court Reverses
Durst’s primary contention on appeal was that the appeals officer made errors of law or abused his discretion when he misapplied the law for determining whether the injury arose from Durst’s employment. The employer and carrier countered that Durst’s actions in grabbing Lester and placing him in a bear hug were outside the course and scope of Durst’s employment and, therefore, coverage for Durst’s injury should be denied. The appellate court agreed with Durst that the appeals officer had misapplied the law.
Citing Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, 240 P.3d 2 (2010) and quoting liberally from Larson, the appellate court said that the first step in determining the “arising out of the employment” question was to determine the type of risk faced by the employee. There are four types of risk that the employee might encounter while at work:
- employment-related risks;
- personal risks;
- neutral risks; and
- mixed risks (i.e., when a personal cause and an employment cause combined to produce the harm.
The appellate court said that the appeals officer had failed to identify the type of risk Durst had faced. The court found the employer/carrier’s counter-argument unpersuasive. The carrier argued that the origin of Durst’s injury was not related to a risk involved within the scope of his employment. They said, therefore, no further risk analysis was needed.
Appeals Officer’s Focus Too Narrow
The appellate court stressed that the appeals officer had focused too narrowly on Durst work-related duties. The officer had failed to take into account the totality of the circumstances presented, such as the nature of Durst’s employment at a cannabis dispensary or the employer’s workplace environment and workplace conditions. Durst’s work duties alone were not dispositive as to whether his injury “arose out of” his employment, particularly when taking into consideration the totality of the circumstances as required. Quoting Larson, the court stressed that the modern rule brings within the course of employment any activity undertaken in good faith by one employee to assist a co-employee in the latter’s performance of his work. The court continued:
Notwithstanding the alleged policy prohibiting workplace violence and that placing a customer in a bear hug was not within Durst’s stated job duties, critical factors overlooked by the appeals officer were whether Durst held a good faith belief that his actions would benefit his employer and the effect Dolan’s conduct had on Durst as his supervisor by encouraging, acquiescing in, or approving of Durst’s involvement in the confrontation. Absent these considerations, the appeals officer could not reasonably determine that Durst’s actions precluded his injury from being considered to have occurred in the course of his employment [Larson, § 27.01(1)].
Since the appeals officer had failed to make the appropriate determinations, his decision improperly denied Durst’s petition for judicial review and the matter had to be reversed and remanded for such an appropriate determination.