© Copyright 2016. Thomas A. Robinson. All rights reserved. For reprint permission, contact firstname.lastname@example.org.
For the past ten Decembers or so, I have annually compiled what I think are the Top 10 bizarre workers’ compensation cases for the year. Typically, my annual blog offering of the truly bizarre gets more hits than any of my other blog posts during the year. Several years ago, my annual list was even featured on National Public Radio’s Saturday morning show, “Wait, Wait, … Don’t Tell Me.” As I have mentioned from time to time, in posting these bizarre selections I am reenacting, at least in part, a tradition that my mentor, Dr. Arthur Larson, and I shared prior to his death some years ago. Each January, Arthur and I would meet in his Durham, NC home on Learned Place, near Duke University’s campus. We’d compare our respective lists of unusual or bizarre workers’ compensation cases reported during the previous 12 months. Often our respective lists would overlap a bit, but he’d always have several with truly quirky fact patterns that I had missed. One thing we always kept in mind: one must always be respectful of the fact that while a case might be bizarre in an academic sense, it was intensely real. It affected real lives and real families. And so, to continue in the spirit of that early January ritual, here follows my list (in no particular order) of 10 bizarre workers’ compensation cases during 2016. If you know of others that fit the category, please send them to me—along with any questions or comments—to email@example.com.
(Author’s Note: Citations link to Lexis Advance.)
CASE #1: Videotape of Plaintiff’s Interaction With Hotel Guest Dooms Retaliatory Discharge Claim (U.S.)
A former employee’s claim that her former employer improperly discharged her in retaliation for filing a workers’ compensation claim was appropriately disposed of at the summary judgment level where the employee could not show that her employer’s explanations for discharging her—which were supported by a videotape—amounted to pretext. The bizarre video showed that the former employee verbally engaged a visitor at her employer’s hotel when he complained about a vending machine, that she taunted and dared the visitor to join her on her side of the counter to “discuss” the matter, and then blocked his attempt to exit the location. The video continued to show the former employee push the visitor into a wall, swatting and clawing at his face. They tussled for a few seconds, and the visitor slammed the former employee to the floor, kicked her twice, flung open the door, and then left. The employee subsequently filed a claim for her work-related injuries, but was fired when her supervisors viewed the videotape.
See Witham v. Intown Suites Louisville Northeast, LLC, 815 F.3d 260 (6th Cir. 2016).
See generally Larson’s Workers’ Compensation Law, § 104.07.
CASE #2: “Angry Thoughts” About Co-Worker Do Not Constitute Employee Misconduct (Fla.)
Statements made by a workers’ compensation claimant to her attorney that she felt like “punching the lights” out of a co-worker, whom the claimant felt had intentionally caused the claimant injury at work, were not the sort of acts that constituted employee “misconduct,” justifying the termination of workers’ compensation benefits under § 440.15(4)(e), Fla. Stat., held a Florida appellate court. Claimant, who sustained two similar injuries when she was struck by a door opened by the same co-worker, admitted she harbored anger at the co-worker following the second incident. She received authorized medical care, was assigned some medical restrictions, and returned to work with accommodations. She subsequently sought authorization of a neurologist and a psychiatrist (as recommended by the authorized orthopedist) and payment of TPD benefits. At a hearing, the claimant’s attorney suggested that an emergency psychiatric hearing was necessary because “something bad might happen.” When the JCC asked for clarification, the attorney announced that the claimant had “discussed homicide and suicide, but not to the level where it’s Baker Actable.” That evening, the employer terminated the claimant, secured a “no trespass” order with the police, and later amended its defenses to the workers’ compensation claim, contending the claimant was ineligible for TPD benefits because she had been terminated for misconduct. The JCC rejected the misconduct defense and the appellate court agreed. Noting that a psychiatrist described the claimant’s expressions of anger as “blowing off steam,” as opposed to a declaration of an intent to inflict physical harm, the Court said it was one thing for the employer to terminate the employee, but quite a different matter to seek termination of her comp benefits. It had failed to meet its burden of proof that she was guilty of misconduct.
Cory Fairbanks Mazda v. Minor, 192 So.3d 596 (Fla. 1st DCA 2016).
See generally Larson’s Workers’ Compensation Law, § 39.02.
CASE #3: Police Offer’s Injuries Avoiding His 2-Year-old Found Not Compensable (Md.)
A Prince George’s County police detective, who sustained ankle and knee injuries when he jumped to the side near the front door of his residence to avoid his two-year-old child as he exited his residence en route to retrieve his police cruiser, did not sustain an injury arising out of and in the course of the employment, held a Maryland appellate court. Accordingly, a decision by a county circuit court that would have awarded benefits was reversed. The officer contended that he was on call and performing a special errand incident to his employment because he had intended to get his cruiser for work the next day. The appellate court disagreed. Quoting from Larson’s Workers’ Compensation Law, the court observed that the workers’ compensation program was not intended to protect the worker from all the perils of the journey. The court noted that at the time of the injury, the police detective was off duty and not discharging any actual police duty at the time of the accident. While he was required to hold himself ready for emergency duty, here the officer had been on vacation during the preceding week and was not scheduled to work for another two days. He had not been under any directive to retrieve his vehicle at the time of the injury. Even under Maryland’s rather expansive use of the positional risk rule, there could be no recovery, indicated the court.
Prince George’s County v. Proctor, 228 Md. App. 579 (July 26, 2016).
See generally Larson’s Workers’ Compensation Law, § 14.01.
CASE #4: Worker Fails To Show Pigeon-Toed Foot Led to Auto Accident (Wyo.)
The Supreme Court of Wyoming affirmed a finding that an injured worker failed to establish a causal relationship between his original work-related injury which, after surgery, left the worker pigeon-toed, and injuries sustained in a subsequent automobile accident that the worker contended was caused when his affected foot slipped off the brake pedal as he attempted to slow his vehicle to avoid a turning car. The Court, citing cases that quoted Larson’s Workers’ Compensation Law, agreed that the worker could recover for subsequent injuries that were the direct and natural result of his original injury. The Court acknowledged that the Office of Administrative Hearings found that the worker had residual problems from the work related injury, yet there was expert medical evidence that the worker’s problems occurred when he was standing, walking and/or weight bearing—not when he was in a seated position. The Court also observed that some of the comments the worker made to emergency room personnel and later to a caseworker were not consistent with his version of the auto accident. Substantial evidence supported the findings of the OAH and the trial court.
Claim of Jensen v. State ex rel. Department of Workforce Servs., 2016 WY 87, 378 P.3d 298 (2016).
See generally Larson’s Workers’ Compensation Law, § 10.01.
CASE #5: Pipefitter’s Injuries From 25-Foot Fall From Tree Not Compensable (Miss.)
In a divided decision, the Court of Appeals of Mississippi held that a pipefitter, who sustained severe injuries when he fell some 25 feet from the top of a gum tree, was engaged in inappropriate horseplay at the time of the injury, such that the injury did not arise out of and in the course of his employment. Relying upon the four-point “Larson test,” the majority said the worker’s actions were a sufficient deviation from the employment to deny compensation. None of the worker’s duties involved climbing trees. Other workers told him to come down. Instead of heeding the advice of his co-workers, evidence suggested the worker began to shake the tree vigorously, causing it to break, resulting in his fall.
Haney v. Fabricated Pipe, Inc., 2016 Miss. App. LEXIS 722 (Nov. 8, 2016).
See generally Larson’s Workers’ Compensation Law, § 23.01.
CASE #6: Employee Gets $360,000 Verdict for Employer’s “Fake Robbery” (Cal.)
A California trial court erred when it ordered a new trial following a jury verdict awarding plaintiff $360,000 in damages where the plaintiff alleged that her employer planned and carried out a mock robbery during which she was approached by a man wearing a ski mask and sunglasses, who slammed a paper bag down on the counter and gave her a handwritten note saying “I have a gun. Put your money in the bag.” Plaintiff reached for a silent alarm, but the plaintiff alleged the man pounded on the counter and pointed to the message on the bag. She gave the man money, but when he left, she began shaking and crying hysterically. The “robber” was actually the employer’s district quality control manager, and the incident was staged by the employer as a security exercise. The California appellate court held there was sufficient evidence to support the jury’s finding regarding the plaintiff’s allegations that she had been assaulted and sustained emotional distress as a result of the incident.
See Lee v. West Kern Water District, 5 Cal. App. 5th 606, 81 Cal. Comp. Cases 966 (Oct. 24, 2016).
See generally Larson’s Workers’ Compensation Law, § 100.04.
CASE #7: College Summer Work Program Worker Sustains Injury in Car Chase as He Shoots Water at Second Vehicle (Ohio)
An Ohio county court appropriately dismissed the appeal of a workers’ compensation claim where the claimant, a participant in a college summer work program, sustained injuries in a two-car crash. Claimant was a passenger in the rear seat of a car driven by his work crew supervisor. At the time of the crash, another summer worker was “chasing” the supervisor’s car in another vehicle and claimant was poised in the rear seat of the car in front, shooting water at the car behind. The claimant sustained injuries when the supervisor suddenly stopped his vehicle and the trailing car rear-ended the front vehicle. The employer denied the claim on the grounds that this was impermissible horseplay and that any tort claim was barred by the fellow servant doctrine. The claimant contended that if the claim was not compensable, due to horseplay, he should have been allowed to proceed against the trailing driver in county court. The appeal was dismissed on procedural grounds.
See Barton v. Simpson, 2016-Ohio–2998, 2016 Ohio App. LEXIS 1855 (May 11, 2016).
See generally Larson’s Workers’ Compensation Law, § 23.07.
CASE #8: Departing Employee Allowed to Sue Employer and Co-Workers Following Offensive, “Tea-Bagging” Incident (N.Y.)
Plaintiff alleged that on the night he worked his last shift with the employer—he had been hired for a position at another government agency—he was aggressively grabbed by a much larger co-employee, who picked up the plaintiff and forcibly threw him to the ground, at which point the co-employee held the plaintiff down and forced the plaintiff’s arms behind his back. Plaintiff alleged that at that same time, plaintiff’s supervisor came over and told the plaintiff that “he had a going away present for him.” According to the plaintiff, the supervisor then dropped his pants and got on his knees in front of plaintiff’s head, manipulated his genitals and placed his testicles on the back of plaintiff’s head, attempting to subject plaintiff to what plaintiff calls “tea bagging.” The court added that “tea-bagging” has been defined as a sexual act that involves an individual placing his testicles on the face of head of another person. Plaintiff also contended that the supervisor placed his unclothed penis on plaintiff’s head, that the several co-employees required plaintiff to stay in the position for several minutes, and allowed other employees, including another supervisor, to take pictures of the incident. The federal district court dismissed several of the counts in plaintiff’s complaint, but allowed the case to move forward.
Hoit v. Capital Dist. Transp. Auth., 2016 U.S. Dist. LEXIS 93576 (N.D. N.Y., July 19, 2016).
See generally Larson’s Workers’ Compensation Law, § 23.07.
CASE #9: Casino Chef Cannot Recover For Stroke That He Contended Was Linked to Wrestling Match With Co-Employee (Nev.)
A Nevada appellate court held that a district court reached the correct decision, albeit for the wrong reason, when it denied benefits to an executive chef at a Nevada hotel and casino, who sustained a stroke several days after he and another casino employee twice got into a wrestling match near the end of a Friday night shift. While there were several versions of the incident, the basic evidence indicated that the other employee, on two separate occasions, put the chef in a “headlock,” squeezing the chef’s neck in the process. The chef complained to his wife of headaches for two days and indicated he experienced shortness of breath. On the third day following the wrestling incident, the chef collapsed while jogging. He was ultimately treated for an “acute right middle cerebral artery territory infarct secondary to embolus from a focal dissection of the right internal carotid artery, likely acquired secondary to traumatic injury to his neck while wrestling.” A hearing officer determined that the chef had established his workers’ compensation claim, but the district court granted the employer’s petition for judicial review. The appellate court agreed that the hearing officer should not have found the incident compensable, but on different grounds. It said the chef’s injury was not fairly traceable to the nature of the employment or to the workplace environment.
Palardy v. Sunset Station, 2016 Nev. App. Unpub. LEXIS 128 (Mar. 16, 2016).
See generally Larson’s Workers’ Compensation Law, § 23.07.
CASE #10: Queen of Snapchat Dies From Stoke Associated with Medical Treatment Related to Fall During Photo Shoot (Cal.)
I am not aware of any court filings yet regarding this incident, but on February 4, 2016, popular model, Katie May, died February 4, 2016, at Cedars-Sinai Medical Center in Los Angeles under truly bizarre circumstances. The 34-year-old knockout, a/k/a “Queen of Snapchat,” modeled for Playboy and Sports Illustrated and had more than 1.7 million Instagram® followers. Approximately one week before her death, she sustained injuries in a serious fall during a photo shoot. She thereafter complained of neck pain and sought the services of a chiropractor. Shortly after the second of two chiropractic manipulations of her neck, she collapsed and was rushed to the hospital, where she ultimately died. Her death certificate indicated she died as a result of “neck manipulation by chiropractor” that tore her vertebral artery and subsequently cut off blood flow to her brain. Ms. May is survived by a 7-year-old daughter.
See generally Larson’s Workers’ Compensation Law, § 10.02.
Additional Bizarre Unreported Cases
My usual, past practice has been to include only those cases that reach the appellate level, but this year I determined that there were some additional cases that warranted inclusion, in spite of the fact that the injury may have been minor and quickly dispatched without much disagreement within the system.
Idaho Truck Driver Escapes Serious Injury When He “Spills” 2 Million Bees
Folks have heard that there is a bee pollination problem in some parts of the country. To alleviate the problem, bees are sometimes transported to areas where the insect population is too low. In July one Idaho truck driver was porting 400 bee hives, containing some 2 million bees to a rural area, when the trailer overturned, releasing virtually all the honey-makers. Traffic on I–90 was backed up for hours and Idaho police had to warn other drivers to roll up their windows. To make matters worse, Coeur d’Alene was hosting an Iron Man Triathlon event at the same time. Ouch! See this news report.
London Zoo Monkey Handler Assaulted by Meerkat Expert at Christmas Party
This one occurred “across the Pond.” A London Zoo monkey handler sustained a cut, requiring three stitches, on her cheek when she was accosted with a glass of wine by a Zoo meerkat expert at a 2015 Christmas party at the Zoo. The two had argued over their respective romantic relationships with a third Zoo employee—a llama keeper. The meerkat expert originally was found guilty of assault in Westminster Magistrates’ Court, but the High Court ruled the magistrates utilized the wrong legal test for recklessness in coming to its decision. See this news report.
Norwegian Artist Discovers “Performance Art” Can be Dangerous
In another story with international intrigue, Norwegian artist Hilde Krohn Huse narrowly escaped serious injury when she went into the woods near Aukra in Norway and recorded herself hanging naked from a rope tied to a tree. At the end of her “performance,” she discovered that she could not free herself from the rope. The video ran out, and she was still hanging, alone, calling for help. She was finally rescued by a friend, after she had been hanging in suspense for 3.5 hours. All’s well that ends well; her video, Hanging in the Woods,” was selected to be exhibited in the Bloomberg New Contemporary exhibition. The finished product is on Vimeo®. For more, see this report and video. As noted, the video contains some nudity.
New Jersey Officer Bitten by Crazed Lottery Loser
A New Jersey police officer escaped serious injury when he was bitten by a man that had used an ax to smash a gas station cash register while he demanded lottery tickets. Prosecutors say the crazed man smashed the registered and demanded that workers fill a bag with scratch-off lottery tickets before he ran from the Ewing, NJ gas station. The officer caught up with him and in a struggle over the arrest, the lottery thief bit the police officer. Police officials indicate it was the third robbery attempt for the defendant this month. For additional information, see the following report.
Angry California Sex Shop Workers Throw “Toys” at Gunman
Apparently the ladies that work in a San Bernardino, CA adult-themed store, “Lotions and Lace,” heard about the West Kern Water District worker noted above in Case No. 6—the one who was accosted in the employer-sponsored fake robbery. The store, which bills itself as San Bernardino’s “One Stop Sex Shop,” is replete with security cameras. Seen on a December 14, 2016 videotape is a scene in which an armed man pulled a hood over his head and entered the store, apparently with robbery on his mind. The clerks weren’t in the mood for the intrusion, however, so, notwithstanding the gun, they chased him away by throwing sex toys at him. A supervisor indicated the employees may have concluded that the gun was fake, but that they are encouraged to avoid any type of confrontation. The supervisor added that he thought the clerks “felt violated.” See the report.
Firefighters Escape Serious Injury Battling Throop Horse Poop Fire
Firefighters near the small, upstate New York town of Throop (in the Finger Lakes region, 20 miles west of Syracuse) were surprised last July 5th when they were called to an unusual fire. Instead of a house or a barn, they had to put out a fire in a huge pile of burning horse manure that had spontaneously combusted, according to fire officials. The summer had been dry and hot and, in a manner similar to the chemical changes that occur within a compost heap, the temperature in the interior of the poop pile built to such a level that the poop ignited. Neighbors had complained that a shift in the prevailing winds carried the odor of burning manure it into neighbors’ windows. It took the firefighters almost two hours to put out the fire, working as they were in hot, smelly conditions. See the report.