A reminder that every case is different. Injuries occur in unusual situations that challenge how we think about Workers’ Compensation and how every state and jurisdiction applies the law differently.
- The “Skiing Chaperone Case,” is about a teacher who accompanies a school ski club as a chaperone. Is she eligible for Workers’ Comp if injured while skiing? Is this a work injury, or did her volunteer status exclude her? After all, skiing is fun. The answer may surprise you.
- A worker on the job outdoors needed to relieve himself. He was standing on a railing over a concrete slab six feet below, unzipped … and he fell and was hurt Unfortunately, he also had an elevated blood-alcohol level and an indication of drug use. So, did the “the personal comfort doctrine” apply, or did intoxication trump his claim?
- Plus, a law enforcement officer attending a conference partook of a “hospitality” suite, enjoying alcoholic beverages before falling off a balcony to his death; A truck driver who stepped into boiling water when he was awakened in his truck cabin; And an obese woman who got stuck in her workplace cafeteria booth, breaking a bone.
These are real cases, and real people were hurt. No injury is funny or subject to ridicule. But these cases illustrate the challenges Workers’ Comp attorneys face. Every worker is important and entitled to protections, but many cases are far from clear cut.
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Intro: Before we begin today’s episode, we would like to thank our sponsors, Posh Virtual Receptionists and MerusCase.
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 L. Pierce: Hello and welcome to another edition of Workers Comp Matters. I am Jud Pierce from the Law Firm is Pierce Napolitano in Salem, Massachusetts. And today we bring you an interesting segment with cases that have peculiar fact patterns and histories. By way of introduction, you really don’t need an introduction. We have my father, co-host, and founder of this program attorney Alan Pierce here to discuss some of the cases that we’re going to be talking about.
Alan S. Pierce: And thank you Jud and welcome everybody. I think this will be a little bit of a different type of show than we usually do. We are going to, as Jud said, talk about some interesting sets of facts that are applied to existing legal principles of law in the area of workers’ comp and see how these cases had been decided in other jurisdictions.
I do want to make two comments before we proceed. First of all, even though we are going to be talking about some of these cases, perhaps a bit lightly they were injuries that occurred in unusual circumstances, we, by no means want to make light of the fact that this did involve people that were injured. Some seriously injured in situations that may not immediately become a parent as being covered under workers’ comp.
And the second thing I would like to point out is that every state, every jurisdiction applies the general principles of workers’ compensation somewhat differently so that any of the topics or decisions or rationales for the decisions we discuss in this program do not necessarily reflect the state of the law everywhere and as you will hear in a few moments, some of these cases were decided one way by an industrial board and then that decision was reversed by an appellate body.
So certainly, there are at least two sides to every story and there are more than enough stories in the field of workers’ comp that we could fill a program such as this and perhaps many more. So with that brief caveat to our listeners Jud, why don’t we begin?
Judson L. Pierce: All right. Well, this first case we’re going to be talking about is a case that we know very well in this office. You handled really through in Massachusetts to the Supreme Judicial Court. And it had to do with, I believe she was a teacher and she was on a school trip outing where they had stayed overnight maybe and they were skiing and there was an accident there on the ski slope. Could you tell us about that case, Alan.
Alan S. Pierce: Yes. This, we call this the Skiing Chaperone case. Our client, I’ll call her Laura for purposes of this discussion she was, as Jud mentioned, a high school math teacher and the particular high school, which is the neighboring city from where we are broadcasting had among all of its other student clubs, they had a ski club and the ski club would plan as Jud mentioned weekend outings to the various ski lodges upstate from us in New Hampshire or Vermont and part of the regulations and rules for this ski club to exist would be that the students needed to be chaperoned and they actually had a formula for one chaperone per every five students.
And these chaperones not only had to accompany the students on the slopes but they had to be equipped to enforce school rules, watch out for injuries, make sure a proper decorum was met and also they were equipped with walkie-talkies so that if there was an injury or some other unusual event, the chaperone could contact somebody for help.
Now, one might think, well, this seems pretty clear cut to be a work injury. Our client indeed, was skiing with five students and suffered an injury. She injured her leg and the claim was denied by the city saying that this injury did not arise out of or in the course of her employment. She was employed as a school teacher. Her job hours were Monday through Friday from when the bell rang at 8 in the morning until when the bell rang at 2:30 in the afternoon and that a Saturday afternoon voluntary trip on a club for a club for what she was not getting paid, she was not a teacher per se that this was not covered.
And in fact, when we had this case tried before an administrative judge, he did agree with the city that this was not covered by workers’ comp. So we appealed this case and it went all the way to the Supreme Judicial Court.
And I will want to make note that Massachusetts like many other jurisdictions has in its statute, a provision that purely voluntary, recreational activities are not covered by workers’ comp. And it was the city’s position and it was the judge’s position that my client was engaged in a purely voluntary recreational activity.
Now her participation was indeed purely voluntary. What the case turned on was whether or not skiing with her students in the role of a chaperone was a recreational activity or inactivity of work and if it wasn’t activity of work was it part of her duties as a teacher? So it was a case that could have gone either way. I think it went the correct way the justices in Massachusetts did indeed affirm the fact that she was entitled to this award of benefits in that even though the injury occurred outside of the normal school week and the school hours, the fact that she was performing duties of a chaperone on behalf of the school was enough to bring it within the doctrine of an injury arising out of and in the course of employment.
And secondly, they did agree with our position that even though she was skiing which is indeed recreational, it need not always be recreational. There could be many instances such as this when while you may be enjoying the skiing it is not recreational, think about her being a chaperone and being responsible for the kids but think about other people’s ski instructors, ski patrols, they are skiing but that’s their primary occupation.
So I think this case is illustrative of purely voluntary recreational activities and the intersection of that in terms of scope of employment. So having talked about that, I want to move to a different case and talk to Jud about it and this is a case involving a worker who was working outdoors and he had to relieve himself.
So he was on a railing over above a concrete slab that was 6 feet below and as he was relieving himself, the call of nature and by the way, for those of you who have listened to past editions, we know that these so-called personal comfort doctrine does allow for workers’ comp when somebody is engaged in activities of personal comfort. He fell and was fairly significantly injured when he hit this concrete and steel slab that was 6 feet below him.
The interesting fact of this case is that when he was taken to the hospital his blood alcohol level was .25 more times the legal limit for operating a motor vehicle. He also had marijuana or THC in his system and the case turned on whether he was intoxicated, which he was and whether the intoxication defense would take precedent or as he, and his attorney argued, he was really involved in a personal comfort activity and that he was injured because of the unique nature of this concrete steel ledge upon, which he fell.
So, Jud, what do you think the courts did with this poll worker in terms of his claim for benefits?
Judson L. Pierce: I would think that the courts would allow for his claim and the reason I say that is because his personal comfort for him to carry on with his job was paramount. He wouldn’t have been able to be of any service to his employer where he uncomfortable or having to go to the bathroom, couldn’t go to the bathroom, he had to do what he had to do be that as it may, he fell largely in part not to the railing although it says that there was a rail involved and he sort of fell over the rail.
So I’d be curious as to whether or not there was any sort of reason that his fall happened other than just him being intoxicated. But assuming that that everything was safe and sound and he fell due to his intoxication, the fact remains as he would not have been there, but for having to relieve himself, I understand that this case may have gone another way. So please tell me if I’m wrong.
Alan S. Pierce: We don’t have a buzzer but if we had the buzzer you would have gotten at the first sentence, but your analysis was indeed the position put forth by this particular worker and his attorney. This case went to the Ninth Circuit, it was a federal case, was a Longshore case, which is a federal case.
And actually the panel disagreed with your analysis, they noted that the legal cause of his injury was intoxication irrespective of the surface material of the landing on which he fell so that they denied a review of the decision below that also denied benefits. So, while this case was an unfortunate one, it turned on the intoxication and there is in most jurisdictions a fairly significant intoxication defense.
Judson L. Pierce: Yeah.
Alan S. Pierce: Now, I will point out and Jud knows this, if he had died of his injuries and not simply been injured, the federal workers comp law as well as many state workers’ comp laws will allow a widow or dependent, spouse or dependent children to collect benefits notwithstanding the intoxication or the serious willful misconduct of the employee and causing his or her own injury.
Judson L. Pierce: So you just have to prove essentially that a death occurred at the workplace.
Alan S. Pierce: Right and the intoxication defense is by statute in Massachusetts and by statute or case law in other jurisdictions, not a bar to dependent benefits in a fatal situation. So that the family may not be punished by the misconduct of the deceased worker but the deceased worker had he survived would not have been able. And in this case, did not collect benefits.
Judson L. Pierce: Well, let’s take a break now for a word from our sponsors. We will be right back with you. We are going to be talking about another case having to deal with intoxication. So we’ll be right back with another edition of Workers Comp Matters in just a few moments.
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Judson L. Pierce: And we’re back. We let off before the break with a case having to do with a longshoreman who fell unfortunately on the job and it was held not to be compensable due to his intoxication. We have now another case that Alan is going to briefly describe for us and I’m going to have to guess whether or not it’s a compensable and benefits were awarded or if they were denied. Why don’t you go ahead Alan?
Alan S. Pierce: Yeah this next case comes to us from the great state of Montana. It is a variation on the theme that we just talked about. In this case, a fellow by the name of Van Fleet was a deputy sheriff, and as part of his duties, he attended the Montana Narcotic Officers Association Conference where they attended classes and lectures on drug enforcement.
Upon arriving at the facility, he and his supervisor went to a hospitality room sponsored by the conference. There was alcohol and food being offered with the knowledge presence of his direct supervisor as well as the sheriff himself, they drank quite freely and were only told not to drink and drive. The hospitality room closed at midnight. Mr. Van Fleet had been drinking for six hours, he and four others then went to the hospitality room in the early morning hours, they play drinking games for a half hour, and then they travel to the fifth floor of the hotel and he fell to his death from the hotel balcony.
His widow applied for workers’ comp death benefits on behalf of herself and her child. Now, in this case, the fact that his intoxication may have barred her entitlement unlike the other cases, this case was denied on the grounds that the deceased worker was no longer within the course and scope of his employment, because the hospitality room had closed, and the widow appealed to the State Supreme Court of Montana.
Jud, what do you think the Montana Supreme Court held?
Judson L. Pierce: Well I’m going to go with thumbs up to the claim and this one Alan. And the reason I say that is because you would mention that he was drinking for several hours and whether or not a court or a medical professional would be able to say, well, it was the after-hours or after the hospitality room closed that caused him to fall eventually or rather was it the volume of drinking he did within the six hours that the party was still going on and everyone was still there. I think there could be no doubt about the fact that he was there for work and part of his work was most likely networking in nature and he was with vendors.
So all that is in arising out of his employment and yeah, I would think that this should be — the previous denial should be overruled.
Alan S. Pierce: Well, we don’t have a buzzer and we don’t have a gong. So if we had a gong, I would ring it. You in essence summarized the findings, and the opinion of the Montana Supreme Court, couple of notable factors here.
One was, as you mentioned, he was off premises. He was away at a hotel for several days, paid for by his employer. The general rule, even across the country, is that traveling employees on a business trip are in this course of their employment, pretty much the entire 24 hours of each day.
And that, the question in this case was now or down, did he deviate from that, was his intoxication enough to make this case not covered by workers’ comp. And I think the second compelling factor on behalf of the widow is the fact that it wasn’t as if he just went out drinking with some buddies and was drinking excessively, he was with his supervisor, and his supervisor’s supervisor. And during that first six hours, he was indeed drinking, not only with their knowledge but along with them.
So that fact together with the fact that they were traveling in a remote location was enough for the Montana Supreme Court to indicate that despite his admittedly clearly intoxicated state that had he been injured or in this case, because he was killed, he or his family would be indeed entitled to workers’ compensation benefits.
Judson L. Pierce: Right. Well, I’d like to turn the tables a little bit and ask you about a few cases and see what you think, and how the court may have turned. This one has to do with truck driver, this case occurred back in 2014. I’m not sure the jurisdiction but there was a trainer of his. He was a newly hired truck driver, the trainer woke him up in the middle of the night, a lot of these truck drivers they sleep in their cabs, there’s a part of the truck that they actually have a bed or some type of sleeping quarters.
As he woke up, startled, he started to step down from the bunk and stepped in a crock pot of hot water, he wasn’t yet dressed for work or logged into work time. But he was told by his trainer that it was time to get up and perform a pre-trip inspection. So was this an injury that occurred due to his employment and was it arising out of his employment in the scope of his employment Alan or was this a case that was denied.
Alan S. Pierce: Again, another interesting case in another case illustrative of in a sense I guess you would say the personal comfort doctrine. As you stated, he and his supervisor he was a trainee were in a cab of a big truck in which there were sleeping quarters. And as you suggested, he was asleep and he his trainer woke him up said, it’s time to begin to go to work. And apparently, because of the fact that they had rudimentary cooking and drinking facilities, there was as you said, a crock pot of boiling water on the floor of the cab of the truck and he was not dressed for work, he had not punched the clock or logged in, but has he just simply got out of sleep mode and put his foot down and went right into the crock pot of hot water.
The employer’s insurer argued that this was not and should not be a worker’s comp claim that he was asleep, got up, he had not yet begun his work day and they concluded that this was not enough association with work. The court in this case in awarding benefits noted the distinction that even though he had just woken from sleep was not working he was furthering the interest of the employer so they analogized this case to other cases involving truck drivers.
There was another case where driver was taking a shower and he slipped in the shower and that it was a result of personal grooming in that case that was not associated with the employment. So the truck driver who took a shower in a shower facility at a truck stop was not covered for comp but this fellow wise. I take issue with that other case. I think most jurisdiction would find that a long-distance truck driver taking a shower during a trip would have been covered but this will show you how these cases as interesting as they are turn on sometimes a very small fact and also could be different from Supreme Court, Appeals Court or Industrial Board from state to state to state.
So there’s no hard and fast rules but these cases pretty much indicate what the courts and what the industrial boards look at to determine if an injury is indeed work related or not.
Judson L. Pierce: Well very interesting. We are going to continue with this program in just a few moments for a word from our sponsors, we will be right back with you. Thanks.
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Judson L. Pierce: And we are back. And right before we took off a break, we were talking about the crock pot of hot water in the cab of the truck.
And we have another variation on the personal comfort doctrine Alan, I’d like to ask you your thoughts about how this case may have turned out. This was a case with a woman who had the co-morbidity of being slightly, overweight.
Alan S. Pierce: She was obese. Let’s not pull any punches, she was quite obese.
Judson L. Pierce: She was an obese woman and she became injured at work at a work luncheon as a result of becoming stuck in the cafeteria booth. Okay, she had to essentially pull and twist to escape from a table and bench she was sitting on with so much force that this resulted in a broken femur and strains.
Now, the Workers’ Comp Board ruled this accident was a result of a personal condition not covered by workers’ compensation, Waters appealed the decision. How do you think the Court of Appeals turned?
Alan S. Pierce: Well, the Court of Appeals turn the other way, they found that she was indeed covered for workers’ comp. She was having her, presumably lunch doesn’t say whether it was lunch, breakfast or dinner, but we’re assuming its lunch. She’s in the company cafeteria booth. She was pretty much wedged between the immovable bench upon which she was sitting and the table. And as a result of the struggle as you mentioned, she broke a femur and she lost the case at the Industrial Board.
The Court of Appeals reversed finding that the booth contributed to the injury and it wasn’t simply her personal condition of obesity that was the sole cause. If the workplace contributed to the injury, even in the slightest bit, then the personal condition could still result in a person injured eligible for compensation.
And this case illustrates why workers’ comp is not clear-cut because the overriding test is didn’t arise out of and in the conditions of employment looked at in all of the relevant circumstances. So that even though had she not been very heavy and obese, she wouldn’t have had the injury by the same token if she were not availing herself of a lunch break during the workday and generally those are covered as long as they happen in the employer’s premises and not outside that indeed she was awarded workers’ compensation benefits on appeal.
Judson L. Pierce: Before we go into the last case, we’re going to be talking about in our program, let me ask you this. If there was no binding of her between the table or the bench or the — it was simply her getting up from her lunch and her weight sort of caused her to fall in the ground or her bone to crack because of getting up. There was nothing that sort of broke the femur. What would you say about its compensability then?
Alan S. Pierce: I think she would have a less clear case to be sure. Because there are certain activities of daily living even though they may occur in the workplace simply because they occur in the workplace does not automatically make them covered under workers’ comp. There still has to be some nexus, some connection in them. In this case, even a slight connection there has to be some connection to the workplace and the employers and furthering the employer’s interest.
So in the little twist of facts that you related, while she still may have recovered I think it would have been a much, much harder or much higher hurdle. And before we get to that last case, you Jud had a case, not unlike this if you remember. You represented a long-distance truck driver.
Judson L. Pierce: Oh yeah.
Alan S. Pierce: He was in a three-point seatbelt so it was across his chest and clearly unrelated to his employment, he suffered a seizure and the seizure, we could not relate the seizure to the stress or strain of driving a truck. He had an underlying condition and it was a sudden seizure, but because he was restrained in this truck with the seatbelt, and because the seizure produced extremely violent jerky reactions, he suffered a severely fractured spine because of being essentially harnessed in so that he had the tension force of the employment-related seatbelt, operating on his body.
So this was also a close case and if you remember we prevailed, you made the successful argument that yes the seizure wasn’t related, the activities of his body relating to the seizure wouldn’t be related but the proximate cause, the actual cause of the fracture was the seatbelt that belonged to the employer’s truck. So that is not unlike this particular case where an instrumentality part of the employer’s premises as long as it had some role in the injury might be enough in the right circumstances to be covered under workers’ comp.
So let’s go to the last case, which I think is one of the more fascinating cases.
Judson L. Pierce: Absolutely. And someone who has had a very, very scary dreams in the past and waking up to them not knowing if it actually happened or not, I can totally identify, I guess with what happened here. This is a worker who was in 2015 employed by the city of Siloam Springs Arkansas as a firefighter and an EMT. This gentleman worked 24-hour shifts. During his shifts, he was required to stay on the premises unless he was performing some work-related errand or activity.
Because of these 24-hour scheduling schemes, the city provided sleeping arrangements and encouraged employees to sleep during night time hours. On one such shift at around 1:30 or 2 in the morning, this gentleman woke up from up from a bad dream he believed spiders were crawling all over him. And during this sleep faced stupor or dream, he jumped from the bed and in jumping suffered a fracture of the long bone outside of his left foot that connects his little toe, which is the left fifth metatarsal.
This injury was not insignificant and ultimately required surgery and so the firefighter, the EMT filed a workers’ compensation claim but as you can imagine the claim was challenged on the basis that it wasn’t work related. So, Alan given those facts how do you think the administrative judge came down?
Alan S. Pierce: I would argue and quite strenuously that this indeed should be covered under workers’ comp. He was in the employer’s premises working 24 hours did require him to sleep and therefore be exposed to the risks attended to and generally, there aren’t many risks attending for sleeping, that to be sure except a bad dream when you hop out of bed, you break a bone in your foot.
Judson L. Pierce: Or a crock pot.
Alan S. Pierce: Or a crock pot. In this case, I would have said not knowing how it turned out that he would have been covered but the claim was denied. The administrative judge that heard the claim denied the claim noting that although his sleep benefited the employer, the dream about spiders was idiopathic in nature that is of an unknown origin.
First of all, I don’t agree. It’s an unknown origin. It was a dream about spiders and that it was the dream that caused him to jump out of bed and injure himself clearly if there was an alarm for a fire and he jumped out of bed, I don’t think this case would even make it into the law books. But in this case it was a dream, which turned into a nightmare. So his claim was denied and basically found that sleeping in the employer provided facilities did not increase the risk of harm and determined that he failed to prove that he suffered a compensable injury that this injury could have just as easily happened at home had he had the bad dream and the mere fact that he was on the employer’s premises would be sufficient.
But sometimes you get very conservative judges, maybe this was the right decision as a long-term claimant attorney of many years. I think somebody who’s working 24/7 and as long as they’re not really deviating from employment by doing something stupid, or frivolous, or totally out of bounds, but if they have a nightmare, I think it’s a risk of being asleep regardless of what happens at home.
But this illustrates that we’re not always right and the courts are not always wrong. And in this case, this poor EMT firefighter did not recover workers’ compensation benefits.
Judson L. Pierce: I think that that was probably a good case to end this program on. I mean this was a topic I think we wanted to do for some time and doing it with you Alan is a great pleasure because like I said, the first case we talked about today was a case we handled here in this office, you handled to successful resolution, the skiing chaperone.
If you listeners, have any questions about these cases or perhaps cases in your own jurisdiction that you thought would be interesting to talk about with us, we’d be happy to hear from you. But as always, we look forward to having another show with you again in the near future. My name is Jud Pierce.
Alan S. Pierce: And I am Alan Pierce. And one thing we didn’t discuss today were the cases I’ve lost and there are some of those as well, including the fellow playing on the company softball team who broke his shoulder sliding into second. So in that case it wasn’t deemed to be work-related that it was deemed to be a purely voluntary recreational activity. So, you don’t win them all, you don’t lose them all, just play the game as hard as you can and do the best you can for your clients, whether you are representing the injured worker, the employer or the insurer, there are plenty of facts to argue and a lot of case law to digest.
So those of you out there, thank you for listening and go out and make it a day that matters.