Judson L. Pierce is a graduate of Vassar College and Suffolk University Law School where he received...
Alan S. Pierce has served as chairperson of the American Bar Association Worker’s Compensation Section and the...
Published: | January 16, 2024 |
Podcast: | Workers Comp Matters |
Category: | Workers Compensation |
A person getting hurt at the workplace is never funny. But it can be instructional to examine some of the strangest ways people manage to become injured at work. Hear about some “interesting” cases.
A schoolteacher whose leg “fell asleep” while he sat in a classroom falls trying to stand up. He broke his femur. Is he entitled to compensation from his employer?
An Amtrak baggage handler was visiting the restroom when someone tossed a firecracker into the room. Startled, he fell and was injured; is Amtrak responsible? How about a city worker who says he picked up a firecracker he found on the job, and it mysteriously exploded, injuring him?
People get hurt at work, but as these and other cases illustrate, it’s not always the responsibility of the employer. (And sometimes, workers do silly things…).
Special thanks to our sponsor MerusCase.
Tom Robinson’s Top 10 Bizarre Workers’ Comp Cases For 2022
Steven Silberberg v. Palm Beach County Schools
Phillip Durance v. National Railroad Passenger Corp aka Amtrak
Dylan Junior v. Illinois Workers’ Compensation Commission
Jonathan Hollis v. Acoustics, Inc. and Associated General Contractors of MS, Inc.
Donald Weed v. Spraying Systems, Co
Speaker 1:
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, Judd and Alan Pierce.
Judson Pierce:
Welcome to another edition of Workers Comp Matters. My name is Jud Pierce and I am delighted to be hosting this alongside our founder and lead spokesman of the program, Alan Pierce. Hello, Alan.
Alan Pierce:
Hey Judson. How are you? I’m happy to do this show again with you. It’s always a pleasure.
Judson Pierce:
Well, today we have a very special issue episode, I should say. We have done this subject in the past, and by high demand we are put together another list of very strange Workers Comp cases from around the country, right?
Alan Pierce:
Yeah. And the demand was, I think three people asked for us to. So we know somebody’s listening and we were chatting before we started the podcast. One of the interesting aspects of our practice is, and I don’t want to make light of the fact that people get hurt, but it’s amazing the different ways that people find themselves injured, not only outside of the workplace, but more particularly inside the workplace because that’s where we see these interesting cases. So although we are discussing them and some of ’em might involve a little banter or lightheartedness, we don’t want to downplay the fact that some folks are injured, if not seriously injured, and the legal issues sometimes override or outweigh the toll it takes even when people do something stupid. I also want to indicate that when we talk about these cases, results may vary from jurisdiction to jurisdiction.
We’ll try to outline some of the legal principles involved. And we also want to give credit to the fact that there are a lot of people who collect these cases. We look online for them. Some of ’em we’ve heard about, some of ’em we’ve handled ourselves. And in particular, I know that Tom Robinson at LexiNexis every year does a collection of the top 10 unusual or bizarre workers’ compensation cases. So to the extent that we are noting some of the cases that the internet brings to us, I want to indicate that there are people that do the work and collect these things. So I thank them for that. Judd, having said that, why don’t you start us off with the first case that you think might be of interest to our audience and certainly to us. Yeah,
Judson Pierce:
I’d love to get your take Alan on it too, whether you think the decision and the finding by the court was something that would be upheld in other jurisdictions. But this case concerns a teacher in a classroom and as many of us can remember from our days in school, sometimes there’s an experience of adult sensation that sort of splashes over you when you’re in a class for a very long time. Well, this specific classroom in Florida had to do with students who were in trouble or being disciplined, expelled actually from their involvement in other incidents at other schools. The students were required then to stay in one classroom all day, but they were allowed to leave that room for lunch and for special elective classes. So on the day of this gentleman’s injury, before dismissing the class for lunch, this teacher took a seat in his usual chair at his usual desk where he sat for about five minutes or less.
In his testimony, he described the chair as being similar to the rolling chair. He was actually seated on for the workers’ Comp hearing, and as the teacher stood up, he felt no feeling in his left leg. And so his left leg gave way and it caused the teacher to fall on the linoleum floor and break his left femur. There was nothing that he struck on the way down, nor did he trip or stumble before he fell. No one assaulted or pushed him. The doctors in the case said that this condition is relatively common. We’ve all had our feet go to sleep when we’ve been in the movie theater or whatever. The teacher’s leg could have, in other words, fallen asleep virtually anywhere. And so the workers’ Comp body, the administrative agency, found that the sitting and standing described by the teacher were routine movements. He was sitting down at a chair about five minutes.
He wasn’t sitting there for any real length of time, something again normally he would be exposed to in his non-employment life. And so the teacher’s leg going numb, didn’t flow from his employment, in other words. And so the agency denied the claim that was appealed and the appeals court affirmed that decision. They actually quoted Larson’s Comp Law treatise and applied the major contributing cause standard there in Florida saying that since again, that it could have been caused in a normal fashion every day outside of work, the teacher failed to show that the risk of being in school and being in that classroom would’ve led to it’s like going to sleep and then falling. So that’s Silberberg v. Palm Beach County and that was decided in February of 2022.
Alan Pierce:
Well, you know what, even though I am a claimant attorney, as you are Judd, and I like to see cases, even close cases be decided with the benefit to the injured worker, I can’t disagree with the finding in this case. However, I think it could and should have been denied on other grounds other than the major cause. I see two issues here that may have been addressed somewhat but not relied upon by the court. The first is what’s known and Larsson in his treatise talks about it quite a bit, is the LA of idiopathic falls. If somebody in the workplace were to simply fall, idiopathic means of an unknown cause, but even if it’s a known cause, but an non-work-related cause such as you faint, you have an underlying epileptic condition, you didn’t take your meds, you have low blood sugar, you have high blood pressure or low blood pressure, and you fall and you injure yourself in the fall, the law of idiopathic falls essentially says you are not covered for workers’ Comp because that fall could have occurred anywhere at any time.
It was just a coincidence of time and place that occurred in the workplace. In this case, it’s similar. The fact that he had the pins and needles sensation, the paraesthesia of his leg, which made it go numb and couldn’t withhold his weight. And he went down the court, paid attention to the fact that he didn’t strike anything on the way down. He didn’t hit a workbench, he didn’t hit his desk and break his leg, he broke it on the floor. And usually the lower of idiopathic falls has what’s called the level floor doctrine. If you go from the standing position to the level floor and there’s always a level floor below you, whether it’s the ground, a hardware floor or carpet to the grass, the injuries caused by that floor are not covered. So I think under Valara Idiopathic falls, this case could have been denied.
And the second principle I think are the normal activities of everyday life. If you have a job in which you are on your feet walking all day, walking as a normal part of daily life, and if it’s just the attritional wear and tear of just walking, at least in Massachusetts, we have a case called Swarovski’s case that distinguishes ordinary wear and care from repetitive stress individual mini traumas. So this could also have been sort of a normal activity of daily living, just getting pins and needles and then going down. So as much as I think the injury arose during the employment, it did not really arise out of the employment.
Judson Pierce:
Well, I think you hit the nail on the head that the court in its decision describes the idiopathic element and says that they wanted to get into the increased hazard test because of the fact that the accident occurred could be deemed a comfort break. So we’ve talked about comfort breaks on this show and that they can be deemed compensable. Would that sort of shed more light on it in favor of the claimant?
Alan Pierce:
It could have. Again, these cases are all truly fact dependent and we know in personal comfort if somebody’s injured in the bathroom or in the cafeteria or they’re on a break of personal comfort, it is generally considered compensable. I don’t want to make light of the situation, but had this fellow used the toilet and his leg had fallen asleep on the toilet, this might’ve come out differently under the personal comfort doctrine, sort of the same as if he slipped on a wet floor in the bathroom. So sitting on a chair, the leg falling asleep, getting up from the chair after five minutes, I don’t know, close call, a more liberal court might’ve found a way to find for the claimant a more conservative court may not. And that’s what makes the practice of this law wonderful, challenging and always educational because you can twist the facts just a little bit and you can get a little different result and you can go to a neighboring state and get a different result.
Judson Pierce:
Why don’t you take a stab at a case that you looked at
Alan Pierce:
On, alright, actually I’ve got two that I want to talk together. Let’s call them the explosion cases of the firecracker case. The first one comes out of the state of Washington and it involves a couple of concepts. One is it was an Amtrak worker. Amtrak employees are not covered under traditional state-based workers’ compensation. They’re covered under basically federal employees liability or the for railroad workers. And in addition to workers’ Comp, they also have the ability to sue their employer if the employer is negligent or doesn’t provide a safe workplace, which is unusual because in most cases the employer cannot be sued. Workers’ Comp is traditionally a no fault system. So in this case, the injured worker was a baggage handler. And again, he went to the restroom and as he was sitting down, he heard an explosion. And when he looked, somebody had thrown a firecracker into the bathroom and he fell and he ended up injuring himself.
He had a TEUs shot, he had to take pain medication and he sued his employer, Amtrak and the fila, the Federal Employer’s Liability Act for not providing a safe workplace. Now, I am going to suggest that he probably did receive and was eligible for workers’ compensation because he clearly was injured. The course of employment, somebody threw a firecracker, but in terms of Amtrak being responsible for his pain and suffering, the court said not so fast the scope of duty was limited. And this is a general precept and civil liability law to the foreseeability of the harm. And that Amtrak could not reasonably have foreseen that somebody would throw an explosive device or a firecracker into a bathroom. Hence, they should not be liable. If he sued the person who he found and did it, I suspect he could have recovered in tort against that person. Although again, the fellow servant immunity rule might have extended. I’m not sure that the civil liability can extend the coworkers. I think it’s only the employer, but I could be wrong. So in that case, I’m guessing that he could have received and should have received workers’ Comp, but should not have received any monies from Amtrak for failing to provide a safe workplace due to foreseeability.
Judson Pierce:
What about if it wasn’t a coworker but was rather a passenger? Could he have recovered?
Alan Pierce:
Probably no. Well, again, at what point is Amtrak responsible if for example, they did not have proper, they didn’t screen the passengers coming on? Yeah, you could add some facts that would draw amtrak’s behavior or lack of behavior as evidence of some type of negligence of callousness. But just generally speaking, you cannot foresee that somebody would throw a firecracker anywhere where an employee could be working on train train. Now there’s another case that, and again, these cases turn on credibility. This was a firecracker case and it was a state case. It came out of Illinois and a fellow whose last name was Junior was a manual labor at a city reservoir and his job was to remove tree branches, mow the lawn, and while doing so, he saw what he thought was a round red object on the ground. So he picked it up and it blew up on him.
It blew off or severely injured his hands and figures and burned his hands and chest and it was a firecracker. He basically testified that’s what happened. He just picked up this random object. The insurance company spent some money on this case and they hired some experts and first of all, they found out that the claimant, the injured worker, admitted that he carried a cigarette lighter, that he had never taken the cigarette lighter out, that he carried it on his belt or in his pocket. However, they did a forensic analysis of his injuries and also the Byrne pattern and the lack of any burns on his pants, belt, et cetera. And the fact that the only way this firecracker could have possibly ignited is if it were lit by a match or a cigarette lighter. So the hearing officer and the reviewing board exercised their discretion to make credibility determinations that the claimant, the injured worker, injured himself, that he saw a firecracker, that the evidence suggested a strong inference, that he lit it and it blew up in his hand perhaps prematurely before he got a chance to fire, throw it away.
And he lost the case as well as a couple of digits on his hand. And in most jurisdictions, the serious willful misconduct of an injured worker will deprive that is a defense. It will deprive him or her of getting workers’ compensation benefits. So he might have gotten Comp if for some reason it was some type of device that if you just touch it, it would go off like oh, maybe some type of maybe stepped on a landmine that was maybe the circumstances would be different, that would be covered. But the evidence here seemed to strongly suggest, and this also goes to show that the injured worker always has the burden of proof. It’s not enough to show he got hurt at work. He has to show that he credibly has described a situation as to how he got hurt. And in this case, he just simply wasn’t believed much to his detriment. Alright, why don’t we take this opportunity
Judson Pierce:
To hear from one of our sponsors and we’ll be right back with Alan Pierce and myself on the strange cases coming out of workers’ compensation decisions in 2022. And we’re back, I’d like to take a stab of binding two cases from two jurisdictions together. Much like the firecracker cases, we have the bear hug cases. If you’ve ever been on a large construction site, you might notice some music being played. In other cases, it’s really against the rules of the workplace to have music playing while people are doing their job. Well, in this unusual case for Mississippi, there was a greatest installer at a construction site and there were other workers from other trades, I think the sprinkler installation company working nearby. And while there was credibility determinations by the judge here, it did appear that some workers were listening to a Christian rap music on a cell phone and some of the acoustical grid workers nearby complained that this Christian rap music was too loud.
There could have been some harsh words. And then those harsh words turned into a calamity and injury. There was a fight, racial epithets were thrown as well. Apparently the lover of the Christian rap music got the claimant in a choke hold after he suggested that country music was a better musical genre and the gentleman was thrown to the floor, underwent surgery to repair a tear of the medial collateral ligament, and he sought workers’ Comp benefits. Obviously here we have an injury occurring at the workplace, but the administrative judge found it not to be compensable because there was a deviation from an employment. There was an argument about music, and the two gentlemen fought over that the on appeal, it was determined that the judge had it right, that the person who had been hurt had engaged in conduct intended to injure himself or another appellate court affirming finding the altercations cause had been about the music and not overwork.
So it didn’t arise out of in the course of his employment. And so this is a little bit like you were saying, Alan before the break where there’s a prohibition, there’s a preclusion of getting Comp if you cause your own injury. And that’s essentially what happened here. I suppose if the argument was not about music but was about say two workers in the same trade were arguing about which way to get the job done, the correct way, the fast way, and it was an argument over the job getting done rather than something so out there about music, maybe that would’ve been deemed compensable. What do you think Alan?
Alan Pierce:
I think you’re right. I think there is a wide body of law in most jurisdictions, if not all jurisdictions, about altercations in the workplace. And to summarize it, as I understand it, altercations in the workplace are compensable even for the injury suffered by the perpetrator of the fight or the altercation. However, there must be some relationship of the subject of the altercation to the work so that if they have a fight over a woman or a man or whether the Red Sox or the Cubs deserve to win the World Series, that generally would not be considered compensable. So in this case, I think it could have gone the other way only because if music is accepted part and is allowed, and I call it the zone, I think the courts have called it the zone of danger. If the workplace puts you in a setting where the setting itself can provide the reason for an altercation. In this case it was music, which let’s say the supervisor allows to be played or they do it and there’s a fight over the music. But for being working together, there wouldn’t have been the issue. So it could have gone the other way. And the other exception would be if the injured party was injured because the person who hit him picked up a tool and hit him with the tool and it was the employee’s
Judson Pierce:
Instrument of the employment
Alan Pierce:
That could take it away from the personal rationale and bring it more into the workplace. Again, very fact dependent, very credibility, credible dependency on this. And like I say, this case could have gone the other way, but the general principle that a altercation over a subject matter that is completely divorced from the workplace should not expose the employer or its insurer to the burden of liability for that. So not necessarily a decision, I would totally disagree with.
Judson Pierce:
One thing I did want to quote the court in the decision, and again this is the case of Hollis versus acoustics, September of 2022 out of Mississippi. The court stated right before its conclusion that in order for an injury to be compensable under workman’s compensation acts, it is necessary that the injury result from some risk to which the employment of the claimant exposes him. Okay, so if the risk was to be around other people who were playing music to get through the day, then you could see it going the other way, I suppose. Yeah,
Alan Pierce:
Yeah. Let’s say somebody insisted on playing a news source that the person had a significant disagreement with, let’s say it was a racial or a political, something that triggered an argument. Again, in the workplace, they play on a radio, watching tv, and as a result, an altercation takes place. I think there could be an argument that there was a sufficient connection to the workplace. So let’s deviate a little bit from altercations and maybe how about a threat of an altercation? I’m going to talk about a case that came out of New Hampshire weeded versus the spraying system. It wasn’t necessarily a workers’ compensation claim, it was more of a retaliation discrimination violation of rights. FMLA. It involved a worker who due to a non-work-related hernia condition, had to leave work for a period of time under FMLA to have hernia surgery. And following the surgery, he indicated medically that he had developed a hydro seal, which is in his testicles leading to excruciating pain.
It’s a collection of fluid. And as a result, he was out of work much longer than he would’ve been expected to for a simple hernia operation. He came back to a significant lifting restriction and his supervisor called him into the office. He was not happy that he was out that long. He was not happy that he had these restrictions and he got so upset at poor Mr. Weed that he told him that he didn’t believe him. He thought he was taking too much time off. And he allegedly said, after Mr. Weeded started to panic, he said, I’m going to grab you by your testicle and I’m going to squeeze it. And as a result, weeded claims he was emotionally injured and if in fact these statements were made, I don’t doubt the fact that the supervisor was clearly wrong. But he filed a civil complaint for this and it came up to the court on a motion for summary judgment and basically the employer came in and said, there’s no issue here that would cause us to be responsible.
We want the case dismissed. The court did find that there were tryable provable factual issues that really must be reserved for the fact finder in this case the jury and the case was sent back and I don’t know what happened. Summary judgment was denied the case either went to trial or settled. I would guess it probably settled. I think if he had brought a workers’ Comp claim and could prove some type of psychological disability as a result of threats to squeeze his swollen testicle, he very well may have recovered workers’ Comp. In fact, I think he clearly would have,
Judson Pierce:
But the swollen testicle was not, it
Alan Pierce:
Was not work related. He wasn’t claiming the injury to the testicle. He was claiming the threat to squeeze it and the effect that had on him emotionally.
Judson Pierce:
So let’s assume that he was not, he didn’t have this condition right, but the person said, I’m going to squeeze your testicle, and it wasn’t the one that was hurt. Would it be compensable?
Alan Pierce:
No, it wouldn’t matter. It wouldn’t matter because
Judson Pierce:
This one didn’t get hurt from something in other.
Alan Pierce:
I know what you’re trying to say. I think the threat of hurting somebody is just regardless, is regardless. If somebody were to find that was a sufficient emotional or mental trauma to trigger an emotional mental reaction, and that would be a question of medical-legal fact that would be compensable. It would’ve arisen out of the employment. It’s a supervisor chastising somebody about his or her workability and making a threat of physical harm, even if he didn’t mean he was using it as an expression. I think the other thing here is, I’ll kick your ass. I don’t think he would’ve, but the threat of doing that could be found to be enough to trigger an emotional response that might require either a disability or need for psychological treatment. And that’s all the court in this case said is there’s an issue here and it should not be as a matter of law thrown out. Alright, what’s the next one you got for us Judge?
Judson Pierce:
I just wanted to talk about another bear hug type of case. I’m really interested in bears and hugs today. This one comes out of the courts in Pennsylvania. This was a gentleman who claimed injury to his neck and low back. He says because someone came up from behind him and hugged him real hard without warning and it was more of an aggressive hug than a friendly hug. The person who was the person who hugged said it was a friendly hug. This claimant had given me a T-shirt recently at a Polish festival, thought of it as a friendly gesture and it was an act of goodness and kindness. So he wanted to get behind him and just give him a big hug. But as much as that’s kind of a funny set of facts, it did cause the claimant, according to him, to have his feet come off the ground, it snapped him back and it caused him to have some physical therapy, had some disability from work, and essentially the court found that it was on credibility, right? The court found that the claimant wasn’t credited and wasn’t credible because there was evidence that the claimant worked with the guy right after, never reported this as an injury. Went on to work again with the same gentleman and it turned on credibility determinations and the appellate court said, we’re going to affirm the decision to deny this claim because the fact finder has complete authority over questions of witness credibility and evidentiary wait. So the bear hug was not compensable, it was just a bear hug.
On that note, why don’t we take our last break of this episode and we’ll be right back for the ending of a few more interesting Workers’ Comp cases. We’ll be right back.
Alan Pierce:
Alright, we’re back to Workers Comp Matters discussing some interesting cases. Judd, you’ve got one you want to chat? Let’s hear it.
Judson Pierce:
Yeah. This came out of Nevada Alan and this is Durst V. Silver State Cultivation. This injury took place in a cannabis dispensary. The claimant observed one of his coworkers seeking assistance of their supervisor in handling an agitated customer fearing for the supervisor’s safety. The claimant actually intervened and again, bear hugged the assailant the customer down to the ground. And when he was doing that was injured himself, he filed a claim and initially it was denied as not being in the course and scope of his employment. If there is a problem in the store, the workers are told to immediately call police nine one one, don’t intervene. Well, in this case, he intervened and the appeals court decided that the judge erred in making that application of arising out of, not arising out of employment that there are four types of risk that the court noted that an employee might encounter while at work. Employment related risks, personal risks, neutral risks, and mixed risks. That’s when a personal cause and an employment cause combined to produce the harm in here. This injury I think, fell in that fourth mixed risk column and was determined to be partially employment related, partially personal, but I think that the court made the correct analysis here and concluded that this rose out of and in the course of employment with the dispensary. What do you think Al?
Alan Pierce:
Well, first of all, I think you’re right. I think the court is right. This gets us to the broader issue of violating a company rule or policy, generally speaking or even violating your own work restriction. Let’s say you’ve got a 30 pound work restriction due to a work-related or even a non-work-related back injury, and you lift 50 pounds, that will generally should not bar you from receiving workers’ Comp if you are furthering the employer’s interest and you just voluntarily do something to be quicker or more efficient. You have to look at the case law and the statutory precepts in the particular jurisdiction. But in most jurisdictions, because workers’ Comp is in a no fault system, you have to have done the offending act from which your injury flowed as a result of your own willful misconduct as opposed to just here something is happening. His supervisor was threatened.
Yes, company rules say don’t intervene. You may see that on shoplifting cases, somebody or a holdup or maybe a security guard in a bank don’t confront. But if somebody does confront and gets hurt, that should be covered unless they somehow intentionally did it for the purpose of injuring themselves, which I can think of very few fact situations that would do that. I think that under these facts to me, there should be no question that the worker who is trying to prevent harm to his supervisor by doing something that the book said he shouldn’t do would be enough to deprive him of medical care and wage replacement for his injuries. So I think to conclude, if you do enough of this work or you listen to enough of these podcasts or you go online and you educate yourself, you’ll see not only a whole line of these types of cases, but we’ve seen things and they’re all grouped together.
For example, and we’ve talked about some of ’em before, we’ve talked about the vending machine cases. I can imagine somebody getting hurt, shaking a candy bar out of a stuck candy bar with a vending machine and the vending machine toppling over. You think that might happened once? It’s happened numerous times In cases that are actually reported, nevermind how many cases that haven’t been reported. And generally speaking from the cases we’ve looked at injuries from shaking a vending machine because of a stuck Twix bar, and I’m thinking of a Seinfeld episode, generally the injured person would be covered if the employer provided the vending machine and even if they did something stupid like shaking the machine, generally consider those people have recovered benefits. And we’ve had other cases where somebody came over and they shook the vending machine and they toppled over an innocent bystander and they’ve recovered the others.
As we were talking about the bear hug and the bear cases, two cases came to mind, I don’t have the sight of them, but one was the zookeeper who decided there was a grizzly bear in its habitat in the zoo and he decided to give the bear a high five. Evidently, maybe this bear when he’s on his hind legs sticks out his paw and he went to give a high five to the bear and he extended one of his two hands and he retracted something less than one of his two hands. And the question here is attempting to high five a bear, a known risk should you receive workers’ Comp for that? And I think properly, he should have contrast that with a night watchman in a zoo who either was intoxicated or high and decided he would go into the bear habitat and wrestle a polar bear much to his personal health and wellbeing.
In that case, he was denied workers’ compensation even though the injury arose out often in the course of employment. But there was an intoxication defense. It was a common sense defense. So these cases are out there, they can be entertaining to read, they can be tragic if you are the victim of them, but they all in one way or another underlying a general precept of workers’, Comp in the phrase arising out of and in the course of employment, a very simple two phrase sentence from which there have been thousands of cases and likely thousands of more because as they say on the old TV show, there are a million cases in the naked city and this is one of them. And we see that every day. We handle hundreds of cases a year. One of us always comes into the office and says, you won’t believe this one. So we hope you enjoyed half a dozen or showcases that we’ve brought you today, and we think we will make this a regular feature periodically because they’re fun to talk about and they are educational to talk about.
Judson Pierce:
Yeah, maybe we’ll get three more people asking for us to redo this episode next time. Maybe go up to six. Well, I’d like to thank Alan for joining us here today.
Alan Pierce:
Thank you for listening. Listen again, go out and make it a day that matters. Bye-Bye.
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