More “Strange but True” Workers’ Comp Cases (and What They Teach Us)

Episode Notes

Transcript

Announcer:

Workers Comp Matters, the podcast dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers compensation. Here are your hosts, Jud and Alan Pierce.

Judson Pierce:

Hello and welcome to another edition of Workers Comp Matters. My name is Jud Pierce and I have the pleasure of introducing my guest and co-host Alan Pierce. Alan say hi to the crowd.

Alan Pierce:

Hello everybody. I want to really thank all our listeners who have been tuning into these podcasts. One thing that Jud and I both can agree upon, no matter how long we practice this area of the law, there is no shortage of cases. Not only that we handle, that we hear our colleagues are handling or that we find online that provide a source of interesting amusement, sometimes education, but also point out how workers’ comp is such a varied field. So we’re going to talk today about maybe a half a dozen or so, what I would call unusual bizarre cases. These are fairly available online. You can kind of these pop up every once in a while, especially if you subscribe to some workers’ comp commentators or blogs. And I want to give a special acknowledgement to attorney Thomas Robinson. He is with LexiNexis and the Larson Advisory Group on workers’ comp.

He collects these on a yearly basis and posts ’em and lectures, and sometimes we see these cases in our own practice and sometimes we learn about them. So the normal disclaimers when we do a show like this is that first and foremost, even though we might make light of the circumstances under which some people find themselves getting hurt, a lot of times it can be very strange behaviors, sometimes humorous behaviors, sometimes how could this have happened? But generally speaking, somebody is injured if not seriously injured. So we don’t want to downplay or minimize that. The second thing is the precepts or the holdings in some of the cases may not apply in your own state. These cases come from around the country and every state has its own way of determining what does arise out of and in the course of employment and what is covered. So keep in mind that we’re not taking amusement out of these cases, but they also can point out some very relevant and salient facts that we need to keep aware of. So having said all of that, judge, why don’t you

Judson Pierce:

Us off here. I’ll introduce the first case. Before I do, I want to echo Alan’s remarks earlier on. Someone out of the blue, I was working on a case this morning on the other side of the aisle so to speak. She said, oh, I listened to you or podcast, are you on that Workers Comp Matters show? And I wasn’t expecting to have that conversation because we were just talking about a case and I said, well, yeah, we’re always looking for exciting new guests. Would you be interested? And she said, well, I’m a better listener than I am a speaker. So shout out to you. You know who you are. It was wonderful coincidence. But yeah, you’re getting this all the time. You see or talk to people that you didn’t think would’ve heard us or found us. And there you have it. So unusual workers’ comp cases.

These are generally from the last couple of years or so. I wanted to start out with a state nearby where we practice in Massachusetts, this state of Vermont, the Green Mountain state, and having just had lunch, this has to do with some pizza. An interesting case, Alan, this was also an attorney who was hurt at work, an attorney for a law firm. They were preparing for mediation and it was lunchtime. So our attorney asked if they wanted to get a pizza, but it had to be gluten-free pizza. So the pizza was ordered and this person took three bites before realizing it. And I’m not sure I could do that. Tell, I don’t know if you can, Alan, if something’s gluten-free or not, but this person could tell, and she claimed that by eating some of the pizza she was psychologically injured issues with her sleep, lapses in daily functioning, et cetera. So she filed a comp claim. Her argument was that this arose out of in the course of her employment, scope of employment. But how did the industrial board in Vermont decide this? Alan, if you know or if you just want to opine as to how you would’ve decided as a judge, tell me what your thoughts are and then I can go into kind of what happened.

Alan Pierce:

Well, my thoughts are that we’ve discussed this in the past. There’s a doctrine called Personal comfort doctrine where if an worker is injured while engaging in activities of personal comfort, which have been defined as bathroom breaks, lunch breaks, smoking breaks to the extent that people still have smoking breaks, that they are still within this course and scope of employment. So the question number one here would be whether or not having lunch during preparing for a mediation would be arising out of in the course of employment. And I would suspect it would be this case had an extra element to it as the facts the judge gave us is that the claimant here had an unusual reaction to something that you wouldn’t think would cause a disabling condition. You take three bites of gluten-free crust. There’s no allegation she got sick, she had gotten sick. That might be another thing. But she had a psychological reaction to that and it kind of strains credibility how somebody could not work or function because they were psychologically damaged by eating three bites of pizza crust. So I would guess, and well, I don’t have to guess because I read the case Jud,

Judson Pierce:

Okay,

Alan Pierce:

Good. The industrial

Judson Pierce:

Prepared,

Alan Pierce:

They did deny her claim and I think they denied it primarily that either they don’t recognize personal comfort cases or they didn’t buy the psychological damage. But what makes this case interesting is being a clever attorney, once her workers’ comp claim was denied, she felt somehow that her employer was negligent. Now keep in mind that you cannot sue an employer for negligence if you’re covered by workers’ comp. That’s the so-called great trade off the grand bargain that an injured worker gives up his or her rights to sue an employer who might be at fault in exchange for getting workers’ comp. Well, this claimant clever as she was. She said, okay, if I’m not covered for workers’ comp and if I can prove my employer was negligent, I’m going to file a lawsuit. So that’s what she did. So this case actually came from a motion to dismiss that was filed by the employer’s lawyer or their insurance company’s lawyer.

And that issue went up to the appellate courts in Vermont, not on the grounds that she could win her case, but just as to whether she could even bring the claim. So what happened here is the appellate court said she could bring the claim, the claim survived, whether she could prove the claim that’s going to be left to the trial court. We’ve had similar cases like that in Massachusetts and there was one claimant here that did not meet a standard for a type of injury. I think she contracted an infectious disease working in a hospital and she couldn’t recover under the workers’ comp laws. She filed a civil suit here. Our Supreme Court said no, if the legislature didn’t want you to be able to collect workers’ comp benefits we’re inferring. They didn’t want you to collect civil benefits either. I’m not sure I agreed with that decision. I agree with Vermont that she had the right to bring the claim. I’m very skeptical of whether she could prevail on the claim

Judson Pierce:

To be gluten-free in Vermont. It’s a tough thing in and of itself because there’s so many good craft beers up there. So it would be very difficult to live up there as a gluten-free person, but I applaud her cleverness.

Alan Pierce:

Well, the next thing we’ll see is a quinoa or kale allergy. Well, since we’re talking about unusual cases involving attorneys as claimant, let me talk to you about a case we found in Illinois, or actually Tom Robinson filed this case was an 81-year-old lawyer, president of the law firm who was working. I can kind of relate to that and he would work from home, but he would also meet with clients and others at the offices in their downtown Chicago office. So he got a call at home that he had a 10 o’clock scheduled appointment and that was at eight o’clock. So he rushed, he got told the client to wait, it was an important client. He hurried, walked briskly to the bus stop in order to catch the bus to work, and he tripped on the sidewalk and he tore rotator cuff in his shoulder.

Now in this case, the argument here is that he could not bring a claim because of the so-called going and coming rule. And we’ve talked about this in the past, that if you are injured in the course of commuting to or from work, you are generally not covered. He argued that this was an exception to the going and coming rule, that in fact he wasn’t commuting to work. He had a home office and he was just going from one office to another office and as a result he suffered an injury. So Jud, give me your thoughts. I know how turned as well how the appellate court found on this case.

Judson Pierce:

Yeah, they didn’t find the way I thought they might find, and I’m not sure if it was argued the way I might’ve argued it. For example, he was told that the person he was supposed to meet was there, right? He thought he might’ve had some extra time to get ready, put on that special cologne, take that two minutes extra shower, and he was told, no, that person’s there for you. Now you got to get over here. So yeah, I know he’s the president of the law firm and maybe that might’ve had a role in this if he wasn’t the president of the law firm, but rather a subordinate or some sort of associate lawyer who felt sort of ordered to get there faster. That might’ve been a different story I think, but maybe because he was a president rushing didn’t count for him. So the court felt that no, this was just injuries incurred simply during a commute and they weren’t covered and they discounted the fact that he had a different office at home versus a different office at the workplace. That was also a good argument I thought, to try Now that so many people are having these sort of hybrid work scenarios, but what do you think about the argument that he was rushing because he was told the person was there, maybe that person would’ve left had he not gotten there earlier.

Alan Pierce:

You know what? These cases are all fact dependent. Any little change of the facts could change the outcome. And certainly you would want, if you are advocating for the injured 81-year-old lawyer here, you would want to try to find any set of facts that would take this out of an ordinary commute rushing. I mean, let’s assume for an example that instead of taking the bus, he just got in his car and was driving to work like he normally did, but was speeding. I don’t know, that’s criminal. Or let’s say while driving to work, he got a phone call from a client and was talking and was distracted and hit a tree. That case might be more compensable than the speeding case. I mean these can vary. Now we talked about this case, it was a mass case several years ago, also somebody leaving work and if those of you who remember the so-called big dig in Boston, this construction project that went on for 20 years, the gentleman in the case here in Massachusetts fell asleep at the wheel.

He had worked 36 straight hours because there was a concrete pour and concrete had to be poured and dealt with very quickly or would harden and they were short staffed and they were behind, et cetera, et cetera. He worked 36 straight hours, fell asleep at the wheel driving home recovered benefits, but it was appealed to the state supreme Court and they reversed it. They said he wasn’t required to work 36 hours, he wasn’t ordered to work 36 hours and they reversed the award. So again, a case that any of these cases could go either way.

Judson Pierce:

Yeah, why don’t we take a quick break right now and be back with the audience soon after a word from our sponsors. We’re going to be seeing cases from New York, Iowa, Virginia, West Virginia and Missouri. So stay with us. We’ll be right back. Alright, and we’re back. I’d like to introduce this case to you, Alan. This comes out of the Commonwealth of Virginia, one of the few states in the union that are known as Commonwealth’s. What are the other ones? Well, Philadelphia and Kentucky. I mean Pennsylvania and Kentucky and Massachusetts, of

Alan Pierce:

Course. I’m just assuming Massachusetts,

Judson Pierce:

Right? Yeah. So I’m not sure, I believe you’re right about the Commonwealth of Kentucky. I know you’re right about Pennsylvania, but in any case, let’s look that up for a little later. Show

Alan Pierce:

Trivia and all questions that you don’t tell

Judson Pierce:

Me in advance

Alan Pierce:

Trying to embarrass me

Judson Pierce:

Here. Let’s impress the audience. Let’s not depress them. An employee was responsible for closing an auto dealership at the end of the workday. After he had exited the building, he pushed a button to close this garage door and he noticed one of the interior lights had been left on. He quickly tried to duck under said garage door and injured his back. He filed a claim for this back injury. How do you think or if, how did it turn out and was it compensable or was it not compensable because it’s kind of could be argued as an ordinary type of movement that would be common amongst many professionals.

Alan Pierce:

And that was the first thought I had when I heard the facts of this case. I think clearly assuming that the injury was as a result of ducking under a door that was closing to try to get in there, there’s no question in my mind that that should have been compensable. There shouldn’t even be a question. And that is why the local laws in the particular states or jurisdictions that cover workers’ comp are important. Apparently in Virginia, their state of the law was that if somebody is injured while doing what they called an ordinary movement, although I could argue ducking under a closing garage door that’s owned by the employer is not an ordinary movement, but there has to be some element of unusualness and that’s actually the term in the statute or in the case law in Virginia. So the defendant employer or an insurance company here said that there was nothing unusual about this, that it was a ordinary movement in the workplace.

And the appellate court affirmed the award. He received an award at the local level in the appellate court, affirmed that saying that this was not an ordinary movement and the risk of injury did not spring from conditions commonly found outside the workplace. A lot of states have similar types of restrictions on ordinary activities. I mean, if you are just walking and somehow, let’s say your knee gives out, maybe you had a meniscus that was just ready to tear and you just take a step down a step that may not be covered. There has to be some incident of the employment. We have a very well-known case here in Massachusetts called Swarovski’s Case. The fellow developed clearly disabling vascular problems in his feet. His allegation is that he stood on a concrete floor all day doing his work and walking around. Nothing unusual happened. He had no accident, he didn’t trip, and he brought a claim and it went all the way to the Supreme Judicial Court of Massachusetts. And they found that walking was a normal activity of daily living and the mere fact that he was doing it for eight hours in the workplace was not enough to bring it within the ambit of workers’ comp. I think walking on a level floor is different than ducking under a closing garage door. So I’m giving the edge to the claimant on the Virginia Case and I’m giving kudos to both the appellate division as well as the original finder of fact for denying this unusualness defense.

Judson Pierce:

And just a quick question on that, in terms of common things like walking and activities of daily living at home, say someone’s hurt at work and they’re confined to the home for a while and they have a couple of giveaway episodes, the knee gives out and they fall and they injure their back and we as claiming attorneys are trying to draw the back injury into the case, the insurer ought not or cannot argue that this activity of daily living breaks the causal chain, right? Because on the one hand you can’t say that these activities of daily living are not compensable and then use them as a reason to break the chain of causation, right?

Alan Pierce:

Right. You’re right, you’re right. We had a case in the office. In fact, we could probably fill an episode of Workers Comp Matters just by talking about some of the cases in the office. We had, I had a case several years ago before we had a lot of remote work like we do now. My client, our client was a tennis coach for local high school, attended the tennis match. And his job after the tennis match was to call in the results or email them to the local newspaper sports department. And when it’s a home match, he would just go into his office at the high school when it’s an away match, he would drive home where he would keep a computer in the basement of his house. And on the particular day in question, he had dinner and then was walking down his cellar stairs with his golf bag over his shoulder, which had the paperwork, the results of the matches.

And somehow the bag caught on the railing, threw him off balance, fell down, broke his leg. The claim was denied. In fact, it was denied by a judge at the hearing the case, but it was reversed on appeal that because he had a home office and because he was there to perform work activities and he was paid for it, he got a salary. He doesn’t get paid by the hour that the reviewing board, this case never got it to the appeals courts. But the reviewing board reversed and said, you know what? As long as he’s credible, as long as the judge believed his story that he was going downstairs. In fact, the insurer in that case tried to argue the going and coming rule that he was commuting to work from his kitchen to the workspace and they rejected the going and coming rule. But that’s how kind of intricate these splitting hairs can be in these types of cases.

Chad, I’m going to toss the case to you right now. Sure. This case comes out of Missouri, it’s not a commonwealth. The state of Missouri, again, a single car crash didn’t fall asleep at the wheel. But this fellow was a field tech for a satellite dish company and he was traveling on a rural highway to get to his first place of work. And he stopped along the way, again, personal comfort doctrine, and he bought a breakfast sandwich that he was eating while he was driving to begin his first job. And he choked on the breakfast sandwich and he had a crash. So the question here is, was this a work-related injury? Was it barred by the going and coming rule? Should it be allowed under the personal comfort doctrine? Does that apply if you’re driving a car and eating at the same time? Which is a little different than choking at the lunchroom in the workplace. So tell me, what do you think happened in Missouri to this person who couldn’t quite get the entire breakfast down?

Judson Pierce:

Well, I would’ve argued really well. I think on the personal comfort doctrine, if someone’s hungry and they’re already on route to a job, you got to let that person eat. And if that person wants to eat or thinks he can eat safely or she can eat safely behind the wheel, all power to you because you’re going to get there on time and you’re not going to be hangry and you’re going to be able to do and perform your job to the best of your abilities. So I would say that it’s not in the going and coming rule because already on route to that first job. So hopefully he or she checked in, did what they had to do. They’re on the clock, so to speak. I guess depending on the facts of this, if the person’s coming from home, that might be a different play and he would be denied. The judge did award benefits and then it was reversed on appeal because of the fact that the employer didn’t mandate that he eat a breakfast after starting the workday or while driving or while driving. I guess it’s implied that someone is in their right mind when they’re working and doing what they can for the employer. And usually that means having been fed. Some people don’t eat before work and they eat at lunch. So I guess there’s no mandate that you must eat. So I don’t know. It could go either way. I would’ve

Argued as hard as possible.

Alan Pierce:

Yeah, it didn’t go that well for the injured worker. It’s funny, in that case, they didn’t really rely too much on the going and coming rule. I think this case might’ve been an exception. If he were going to his normal workplace, his office or place where he worked, not compensable, but he was going to a scheduled visit, that’s not his place of employment. And I think the case law, at least as I understand it in many jurisdictions, is if you are like say a visiting nurse or you go from location to location, a different place every day, that once you start the journey to a place other than your normal office, that’s generally covered under the going and coming rule. Now you talk about personal comfort. We had a case in the office, and we may have talked about this a year or two ago, and I apologize if some of you remember this, but we have a client who always would stop for Dunking Donuts drive through coffee on the way to work.

And she did, and her supervisor knew of her habit of getting a coffee. He called her on her phone before the workday started. During her commute. Clearly she’s in the going and coming exception and he said, have you gone to dunks yet? She says, I just went there. She says, oh, I wanted you to bring me an a large iced coffee, two sugars and one cream. She says, well, there’s another dunks closer to the I’ll stop there. She stopped there, it was raining. There was a line at the drive-through. So she went into the dunking donut, slipped on a wet floor and broke something. And the questionnaire is whether she was still in the going and coming rule or was she on a special errand mission on the part of not only a coworker but a supervisor. He didn’t order her to get the coffee. It’s not like the big dig where they didn’t order him to work 36 hours. This fellow with the breakfast sandwich, they didn’t order him to eat on the job in that case. It never went to a decision. The insurance company settled the case with us. But I am confident that a judge on our facts would’ve awarded her benefits because she was in that coffee location, but for the supervisor’s request. But again, that’s how these cases can go.

Judson Pierce:

Why don’t we take a quick break and we will be back with a few more cases to wrap up this edition of unusual Workers’ compensation cases. We’ll be right back. And we’re back. Whose turn

Alan Pierce:

Is it? We’re going to talk about a case out of West Virginia, not a commonwealth, a regular state, West Virginia. In this case, the injured worker was the manager of a golf course clubhouse. And you would think that he would never get hit by a train, but he was in a car and he got hit by a train because he left the golf course to go to a store to buy coffee creamer because they had run out of coffee creamer, or at least he felt they were out of coffee creamer. So he felt that it was part of his duties to provide and make coffee for the employees and the customers of the golf course clubhouse. And he had made similar trips on other occasions and always considered it part of the job. And he felt that he was on a special, he on a mission that would benefit his employer when he unfortunately was on the short end of a collision with a train. So that case was denied on arising out of and the course of employment. Tell us what happened, Jud.

Judson Pierce:

Well, I agree with the court and denying the claim. There was evidence that was produced by many witnesses stating that there was knowledge by the injured worker that there was already enough special flavored coffee creamer, I mean regular coffee creamer on the premises. He wanted a special flavor. And so that’s really kind of taking it into your own hands. I know there’s some personal comfort in having a special flavor, but I don’t think it would allow for him to bring a successful claim being that there was already coffee creamer there in the premises. So I kind of, as an injured worker’s attorney, I kind of agree with the insurer on this one and a denial was warranted, but I could see it perhaps going a different way with the personal errand.

Alan Pierce:

Yeah, well, like I say, these cases all turn on effect. In fact, I remember when I was, I took the only course in workers’ comp in law school who was taught by the legendary Professor Sam Horrowitz, one of the founders of the practice of workers’ comp. He must’ve been 80 years old when I took the case, took the course from him. And what he would do is, and that’s why I enjoy doing this particular show, he would take a case like this and he would do what we are doing and then he would get the answers from those of us in the class and then he would change the facts. He says, okay, what if this they were totally out of coffee creamer? Would the results be different? I think it would. Maybe not in some jurisdictions or let’s say his supervisor asked him to go to the store.

I mean, I don’t think there’d be any question there if he was directed by somebody to make the trip, but on his own to go and get a flavor of creamer that he was getting because he personally liked it, even though other people might share in it in the workplace, very thin line here could have gone either way. And I think it probably went the right way. In this case, he can’t expand the scope and course of employment so far beyond the breaking point that it covers almost anything. And now I’m talking like some of my colleagues on the other side. There has to be some basic sense of reasonableness here. And even within the brackets of what is and what isn’t reasonable, there are gradations and those SPACs that might favor a work connection. Those that we will exploit, those facts that would favor not a work connection would be the facts pursued by our opposing attorney. And we have the fact finder who will make the

Judson Pierce:

Call. Yeah. I have a last case perhaps of this episode because, and this isn’t one that you’ve seen in advance, so I apologize, but I think you’re going to like the facts and I think it fits in well with what we’re discussing. This is about a case having to do with chocolate and it’s out of the Commonwealth of Virginia. And for our listeners who listened earlier on, Alan is right. There are four commonwealths in the United States, Pennsylvania, Kentucky, Virginia, and Massachusetts. This person was a chocolate maker and he would regularly go home with chocolate candies in an employer owned delivery truck and he would keep the truck at his home filled with coffee and snacks to be delivered the next day in 2023 after making his last delivery for the day, he drove to the warehouse of his employer, loaded the goods for delivery for the following Monday.

So it was over the weekend that he was going to have these goods in his car or truck. He parked it in his driveway. He did admit to having some beers before an accident, but denied being intoxicated since the temperatures in Virginia were warm that weekend. September must have been a little late summer warmth, something he had done in the past. He acknowledged taking in the food into his residence to keep it refrigerated or frozen so that it would be good for delivery on Monday. He maintained the action was common sense. He added the employer never forbidden it and the trucks own freezer didn’t work. So he went to the truck at seven 15 Again, he had a couple beers. He reached in to grab the tote of the candy with his left hand. When he did, his left foot slipped and his left knee struck the ledge on the back of the truck. He fell landing on his back, but he saw treatment for his knee injury. He emailed his boss about this, about what had happened. He filed a claim. What do you think the deputy commissioner and majority of the workers’ comp court felt about this?

Alan Pierce:

I would think if it’s the company car and if his version of why he was going out to get the chocolate to bring it in because of hot weather and he wanted to preserve it in a colder environment is deemed credible by the fact finder, then I don’t see that why this wouldn’t be compensable. Yes, he’s at home, but his employer is benefiting. His employer is getting the benefit of him going to a vehicle that is an extension of his workplace, or at least the work premises as it’s owned by the employer. And was taking some product that if melted would spoil and not be used again, if that’s believed, if he would just going out to scoff some chocolate or to get something else in the truck or go somewhere, no, but again, on those facts, I would think it should be covered. What did our friends down in Virginia say? They said it shouldn’t be covered.

Judson Pierce:

And they said that Mark. Well, the claimant failed to prove by a preponderance of evidence that the accident occurred in the course of his employment, noting the accident occurred nearly five hours after he got home and the course of his employment had already and he hadn’t been told to remove food from the truck. So I guess they didn’t believe him that the employer had asked them to do that in the past, nor did he ever discuss it. So maybe they had some credibility issues with this gentleman because they also were concerned about the number of beers he had right before the accident. I know we have in Massachusetts a section of law that says, look, if you cause your own accident by drinking or being intoxicated, you might forfeit your right to claim benefits. So I think they incorporated some of that section maybe that they have in Virginia in this one.

But one of the three commissioners dissented noting the employer could reasonably expect, just as you said, Alan, that this gentleman might return to the truck at some point between parking it and beginning the next workday a few days later, the dissent quoted the Virginia Supreme Court if a voluntary act, an employee which causes an injury is sufficiently related to what the employee is required to do in fulfilling his contract of service or one in which someone in light capacity may or must do in the interest of his business, the fact the employee was not actually required to perform the act will not impair his right to recover compensation. So the dissent agreed with you, but I guess the two others did not. He is entitled to appeal to the State Court of appeals. I don’t know if that is pending or if that was decided against, but that is the last of our cases in this episode of sort of recent unusual, sometimes flavorful pizza, chocolate cases. And I am very grateful to Alan for bringing this up and allowing us to do an episode on this. Again, maybe we’ll do one later this year. But for now, that’s all we have for you. Alan, do you want to say

Alan Pierce:

Anything before we Yeah, as always, thank our listeners for tuning in and hopefully learning, if not learning, perhaps being entertained in the process. We enjoy doing it. It’s informational and educational to us and we look forward to bringing you another episode of Workers Comp Matters in a very near future. So thanks for listening. Go out and make it a day that matters. Bye-bye everybody.