Exploding Glue and Mermaid Dresses: When Workers’ Comp Gets Weird

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:

Welcome to another edition of Workers’ Comp Matters. I am your co-host, Judson Pierce, and I am here with my esteemed colleague, partner, and dad, Alan Pierce.

Alan Pierce:

Hey, Jud. Yes, we are workers’ comp attorneys. As our listeners well know, we practice in Salem, Massachusetts and the law firm of Pierce Pierce and Apolitano, where we have been handling workers’ comp cases for Longer than Jud has been alive, and we’ll continue to do so as long as we’re both here. So today we’re going to do another program that we have had at least one request to do from our huge legion of audience and going to discuss some unusual, bizarre or cases that we’ve called when things get weird. However, when we talk about these cases that had sprung up around the country, there’s a couple of important things we’d like our audience to remember and we try to remember as well. Some of the fact patterns we’re going to discuss are unusual to say the least and humorous sometimes, but we cannot forget the fact that human beings were injured and suffered pain and suffered physical as well as economic harm as a result of what happened to them.

And sometimes their cases were not considered to be covered under workers’ comp or some other point of law. So in addition to bringing these types of unusual cases to your attention, rather than just look at it from the standpoint of something unique, interesting, humorous, or novel, there are nevertheless some legal conclusions to be drawn from these cases. There are some principles that extend to all types of cases. So that is number one. And number two, these cases come from a variety of jurisdictions, not only across the 50 states of our country, but in one case we’re going to discuss with you today that came from France. And workers’ compensation systems and benefits and case law and statutory law varies from jurisdiction to jurisdiction so that whatever decision we may talk about right, wrong or indifferent may have applied on that particular set of facts, but it does not apply across the board.

And obviously if you have a case remotely similar to any of these or any type of case where you have a question, you really need to look at the law in your local jurisdiction. So what we’re going to talk about are probably more broad principles of workers’ comp and how they play out under sometimes unusual circumstances.

Announcer:

Yeah.

Alan Pierce:

These cases are available online. I mean, it’s not like we’ve handled any of these. We’ve had certainly our share of interesting cases in the office, but I know one person who collects a lot of these cases every year is Attorney Tom Robinson in California. So we’ve drawn on some of the cases that he has assembled and he publishes every year. But we keep our eye out for interesting cases that not only attract our interest, but illustrate an interesting point of law. So having said all of that, Jud, let’s turn it back to maybe discuss the first case today.

Judson Pierce:

Yeah, absolutely. Today we’ve got everything. We’ve got section France, helicopters taken down by clipboard, exploding glue cans, and mermaid wedding dresses, just to name a few. So we thought we’d start with an interesting ladder case.

Alan Pierce:

This comes from the Commonwealth of Pennsylvania. We’re going to call it, where did my ladder go? The claimant, the injured worker, suffered injuries to his feet and back after he jumped from a two-story roof. He was up there to do some work on an HEAC and there was a ladder by which the roofers allowed him to go up and down and he did. He, I guess, was cleaning condenser coils on air conditioners. And by the time he finished at least for lunch, the roofers were gone, as was the ladder. He tried to get down using the roof hatch that was locked. He couldn’t call anybody, and he jumped. And of course, he jumped two stories. He injured his feet and back. And for whatever reason, this claim was contested by the insurer. And their argument was that this was a deliberate and intentional act that would disqualify him from receiving workers’ compensation benefits.

Jed, how do you feel that he should have prevailed and how did this work its way out?

Judson Pierce:

Certainly wasn’t a controlled dissent, was it?

Alan Pierce:

No.

Judson Pierce:

And is panic a defense?

Announcer:

No.

Judson Pierce:

How far off script can you go to lose coverage? Look, this is a gentleman who had no other way to get down. And it wasn’t so much of his egregious fault that led to his injury, but rather a circumstance of where he was at that time. So I don’t think that would pull him out of coverage. I think it should be compensable.

Alan Pierce:

Yeah. And I agree with you and the courts did as well. Many jurisdictions, presumably the Commonwealth of Pennsylvania, as does the Commonwealth of Massachusetts, we do have provisions that an injured worker could be disqualified from coverage under workers’ comp if they intended to injure themselves. If they performed what in Massachusetts we call serious and willful misconduct, doing something that perhaps wasn’t smart, such as jumping to stories because a letter wasn’t there, I could see people doing that, but that wasn’t the type of deliberate intentional act that should disqualify this gentleman for benefits. So even though the insurer for the employer took that position, I guess we would say this fellow ended up, he did indeed have a legal leg to stand on, even though it was broken.

Judson Pierce:

I wish we had the drum symbols.

Alan Pierce:

Yeah. Or the

Judson Pierce:

Buzzer. Or the buzzer. So the legal standard is basically don’t be too crazy. Little crazy covered. Olympic level crazy, maybe

Alan Pierce:

Not. Yeah. It’s the intent to cause injury. There are cases, and I’ve seen them, you’ve seen them judge where Jud, where somebody in an effort to get workers’ comp will hurt themselves intentionally, hard cases to prove, but they are out there. But this case didn’t reach that level. Let’s put it that way. Well,

Judson Pierce:

Let’s go to case number two on our docket today, the falling clipboard case out of a helicopter. This arose out of the Supreme Court of Idaho. The facts were that a pilot was killed in a helicopter crash. It was a remote region of the western part of Idaho. The pilot was employed by a small aviation company that had been contracted to fly with two Idaho Department of Fish and Game employees to that remote site to conduct a fish survey. Unfortunately, the copter crashed, killing all three on board. Evidence indicated that just prior to the crash, one of the passengers or became airsick and opened the helicopter door, dropping a clipboard in the process, and the Jettison clipboard struck and damaged the tail rotor of the helicopter, making it too unstable to fly. So I guess there are some questions here, Alan, I’d love your thoughts on whether or not the IDFG was the pilot’s statutory employer, given that he was directly employed by a smaller company that was a vendor.

And was that employer therefore immune from tort liability because the pilot’s father brought an action under tort liability? How do you think that would’ve turned out?

Alan Pierce:

That is the issue in this case. First of all, even though this is workers’ comp matters, there’s no question that the survivors of the deceased pilot, and for that matter, the other two that were tragically killed would be covered for workers’ compensation. That’s a given. However, when somebody is killed in the scope of employment, the monetary benefits that flow would go to the surviving spouse or dependent children. And if a injured worker was single with no dependent children, even though it’s a workers’ comp claim, there really would be no weekly or lethal benefits to be paid. So it would be a workers’ comp claim and except for perhaps paying the funeral or burial expenses, the workers’ comp carrier would not have any other financial exposure. And as our audience knows that the employer cannot be sued civilly. So this case was actually a civil case, not a workers’ comp case.

And the plaintiff of the case was the father of the deceased, which would seem to tell me that he did not have a surviving spouse. The father was bringing a lawsuit in the name of the estate and perhaps in his name for maybe the damages he suffered for the loss of his son. And so the issue that went to the Supreme Court of Iowa is whether the exclusive remedy provisions would preclude the suit for the father because if workers’ comp is available,

As the quidro quo, there’s no civil liability. So the question in this case is whether the aviator was under the direction and control of the Department of Fish and Game and whether the defendant in this case was the pilot statutory employer. And on the particular facts of that case, the Supreme Court of Idaho held that the defendant for whom the lawsuit was aimed against was the statutory employer of the deceased pilot. And as such, even if there might have been negligence in the part of a coworker for dropping the clipboard, even under an emergency of having to get airsick and open the door, that the employer was amine from suit, so the case was dismissed. But that doesn’t mean that this wasn’t a compensable workers’ comp case. There just might not have been and you better collect the workers’ comp benefits.

Judson Pierce:

Yeah. See, I might’ve come down differently on that. I might’ve said that because there was no workers’ comp benefit due him because he was not a dependent, he was sort of taken out of the system and therefore could go against his direct employer, which was the aviation company.

Alan Pierce:

And there are cases arguing that, and again, as we mentioned at the top of the broadcast here, some states may treat that differently, but the concept of exclusive remedy or tort immunity is fraught with fact patterns that can show various results depending on the particular state of facts. So you are correct that a similar case could and may have turned out differently in another jurisdiction, or if the facts might be slightly different.

Judson Pierce:

Yes. Somewhere in law school, no one told us we’d be analyzing airborne clipboards.

Alan Pierce:

No, no. Well, let’s leave the country a little bit. Let’s go to … It’s interesting that this case would come from France of all places.

Judson Pierce:

Well, before we do that, let’s tease that out a little bit and take a short break for one of our sponsors. We’ll be right back from France. That’s about all I can remember from middle school, high school, French. I think I took some college French with Madam Lipsch, but it’s been a while until I saw this wonderful case from France. Alan, I’ll throw it over to you to discuss what happened.

Alan Pierce:

Yeah. And by the way, I’ve had a case law similar to this here in the United States and there’s a whole line of cases like this, but back about five or 10 years ago, an engineer from a French engineering firm was on a business trip and had what we would call an adulterous liaison.

Judson Pierce:

Liaison Dangerhoo.

Alan Pierce:

Yeah, trade danger. He suffered a cardiac arrest. God love him and brought a workers’ compensation claim or actually he passed away so that his surviving spouse and or children brought a claim for workers’ comp, which would pay 80% of his salary. And of course, the defense here is that he was not really engaged in work activities that should trigger the delivery of workers’ compensation benefits for an industrial accident. So how do you think this came out? If you want to look it up, it’s two ESIVs, CIV, three October 2019, 18-18. 389. They don’t even use the names of the parties. So what happened? What was the end result of the trrist that went bad?

Judson Pierce:

Yeah. I mean, it seems to affirm some of our crudest stereotypes, but workers are pampered when they go away on business trips. I guess look, this was not perhaps the most moral thing to do, nor was it helping an employer in its quest to do business. But what we generally hold in at least some of our states, if not most of them, is that when you are a traveling employee, you are on the clock pretty much twenty four seven. So that would include going back to your hotel and engaging in any normal activities of daily living, which I guess this court may find that sex is a daily activity of normal living. I don’t-

Alan Pierce:

At least weekly.

Judson Pierce:

Some weeks, some months. Some weeks, yeah. For some people. So yeah, it would be compensable, I think, and hopefully France found that.

Alan Pierce:

Yeah. And actually quoting from the case, and this is so French, the appeals, this case went up to the appeals court. They said that worker traveling on assignment is entitled to the employer’s protection for the duration of their mission, whether or not the accident takes place as part of a professional activity, or as you put it, Judge, an act of normal life. And at the 2016 decision of lower court ruled that in a second, this is what I say is so French. A sexual encounter is an act of normal life like taking a shower or eating a meal. Again, I might’ve put it a little differently, but again, the point is made that … And we have in Massachusetts, the United States, we have what we call the Bordello or the whorehouse cases where traveling back in the day, the Willie Lowmans of the world, the traveling salesman.

We’ve seen cases here. If you go into our case law, we have cases where accidents have occurred, there have been fires, people were killed in a bordello and things like that. The important thing to remember, if in fact this were a Massachusetts case and it were held that the injured worker engaged in a serious and willful misconduct to deprive the injured worker of benefits, spouses generally are still allowed to collect death benefits if a death results from the accident. So-

Judson Pierce:

That is awkward.

Alan Pierce:

It is awkward that sometimes the injured worker can be denied benefits because his or her own misconduct, but it wouldn’t deprive a surviving spouse or dependent children. So it was the right decision. Traveling employees get wide latitude. You do get into cases where what if they deviate from the scope of employment? Let’s say they go out and engage in, for example, a purely voluntary recreational activity while traveling. That would disqualify them here. Might it disqualifying them outside of the state? Who knows? But certainly in this case, a fatal triste did not deprive the deserving spouse and children of weekly compensation.

Judson Pierce:

Yeah. We are getting into some of the strangest corners of workers’ compensation law in this episode, somehow workers’ comp and all litigated. I’d like to talk a little bit about case number four, which is dressing a mermaid can be dangerous business out of North Carolina.

Alan Pierce:

Yeah. And here we’re putting the wedding after the sexual encounters. So yeah, tell us a little bit about the facts of this case that came out of the Court of Appeals of North Carolina.

Judson Pierce:

Working in a bridal shop shouldn’t be hazardous, but think again, in this unusual case, a bridal shop employee was attempting to find the perfect dress for prospective bride. The bride to be wanted to be dressed as a mermaid, apparently had her heart set on this, and the employee showed her one. One problem though, the dress was a size 12 and the bride to be, I’m not going to say the number, was a little over that.

Alan Pierce:

Yeah, size 16.

Judson Pierce:

Yeah. Okay. “We can make this work,” the employee thought. And the employee stood behind this customer, managed to get the dress over the woman’s head and upper torso, but as the employee strained to pull the dress over the customer’s buttocks, the employee- Ample

Alan Pierce:

Dirier, I think is the way it was phrased.

Judson Pierce:

Yeah. And that was the French case again, ample Daier. The employee lost her balance, fell, injuring her knee. So I was a little bit confused about the findings of this case. Before saying more, I wanted to get your take on it, Alan. What do you think? Is this a compensable injury? Well,

Alan Pierce:

You know what? It seemed to me that anywhere, anytime, and any place, somebody trying to fit … By the way, it wasn’t a mermaid dress in the sense that it had fins at the end. It was, I guess that might be a type of style where it’s very fitted in the hips and down. And then the bottom goes out. Yeah, bottom it’s open. It’s not like she’s got fins. But in any event, evidently by a peculiar reading of the North Carolina workers’ compensation statute as to what constitutes an accidental injury, this case

Turned on a fairly narrow, and I would say a minority view of what should or should not be covered. The appeals court in North Carolina concluded that the plaintiff or claimant trailed as a stylist fitting gowns and brides, even tighter fitting dresses. They realized they may need to kneel or bend to pull the dress down over a bride’s hips. And even though they trained to kneel, she decided to kneel on one knee and pull the dress down. And when she experienced difficulty fitting the bride, she kneeled to twist and pull it over her hips, putting one foot on the ground. The plaintiff’s testimony that they did find to be credible that the stance was unusual. However, that she did not establish that the amount of force she used was unusual and that this was really not an industrial accident. It was just an activity that would not qualify as an accident or an accidental injury, that the stance was not unusual so that the-

Judson Pierce:

Almost like a Zorovsky’s case, right? In Massachusetts.

Alan Pierce:

Yeah. Yeah. We have a case that activities of normal living are generally not compensable. To me, this was a pretty narrowly decided case, and it would seem to me that she’s bending on one knee and trying to help her employer’s business by selling a dress, even though perhaps they should have asked her to go into the next level higher. I really don’t think she should have been denied benefits, but we played the hands were dealt in the North Carolina. I guess the lesson here is if you’re a size 16, shop for a size 16.

Judson Pierce:

That’s a good rule of thumb. And folks, on that, we’re going to take our last break of this episode and we’re going to be coming back for our last part. We’re going to be talking about glue and we’re going to be talking about golf. So stay tuned. We’ll be right back.

Alan Pierce:

Welcome everybody back from our break. Judson, let’s talk about a case that came out of Missouri.

The injured worker worked in a tire shop and they patched tires. And in order to patch tires, they would use a rubberized tire glue that was kept in a can. This glue is flammable or inflammable. I never understood the difference between those two terms. Another worker held the glue can in his hand as he attempted to repair a tire. The injured worker, the claimant, in what they called an apparent effort at humor, lit the can with a cigarette lighter, surprising the coworker who dropped the glue can, whereupon it exploded and burned both the worker and the claimant quite severely. The guy who lit the can had his benefits denied. Chad, what do you think? Should he have collected benefits or not? We can presume that the other warfare did indeed get workers’ compensation benefits. So would the person who tried to be funny and lit the can with the cigarette lighter, should he be allowed to collect or not?

Judson Pierce:

Well, in this instance, he shouldn’t have. In my opinion, he shouldn’t have because it was an effort at humor. Sure. He knew what the results would be most likely because I’m sure that in their business they had to use these special rubberized tire glue from time to time to repair tires. So it was an intentional act versus an accidental injury. Now, I know comp is supposed to be no fault, right? Generally, Alan? Yep. And so was it a material breach or misconduct that rises to the level of creating his own injury?

Alan Pierce:

That’s not entirely clear from this.

Judson Pierce:

Right. Maybe the facts need to be developed more.

Alan Pierce:

Yeah. Yeah, you’re correct. We talked about it earlier in one of the other cases that intentional misconduct of the injured worker can deprive the worker benefits. In this case, the appellate court affirmed the denial of benefits indicating his action in lighting the can was not an accident. They distinguished an accidental injury versus an accidental event. This was not an accidental event that would trigger workers’ comp. Again, a very narrow distinction. Perhaps they don’t have a statutory language about intentional misconduct, but in any event, in this particular case, the person who caused his own injury, even without the attempt to cause injury, was deprived of benefits. Case could have gone a different way in other jurisdictions, but on this particular facts-

Judson Pierce:

Yeah. You know what? I take my answer back. I probably would’ve found for the injured worker even though it happened. I’m usually a liberal judge, so I’m kind of surprised that I denied him benefits earlier about three minutes ago.

Alan Pierce:

We have a body of case law, again in Massachusetts, but it’s replicated in other states that in a physical altercation between two workers, if it arises out of the work, even the instigator, the one who maybe throws the first punch and then gets hurt, they’re allowed to collect workers’ comp.

If the fight were about whether the Yankees are better than the Red Sox and it takes place in the workplace, no. But if there is a genuine work-related argument that results in a physical altercation, both the aggressor and the victim, if injured, would be compensated because as you put it, it’s a no-fault system, and that is the quid pro quo that underlies workers’ comp. So let’s get to what used to be my favorite sport until I read this case, golf. Let’s yell four before we describe this case. Judge, this comes out of New York. Tell our audience what happened.

Judson Pierce:

Yeah. I’m very excited to share this with you, Alan, because I know you do love golf and it takes place in a golf locker room, and it’s a country club locker room. What happened was the attendant alleged that the manager there struck him in the left testicle with a golf club shaft as the two were standing in the area. There was some evidence that the manager laughed and walked away. And so could that have been an intentional act because he laughed and walked away? So the manager’s statement at the time was he didn’t feel the attendant was injured, thought it was all fun and games, but the testicle had to be surgically removed. It’s not fun when the testicle goes. So Alan, what is your thought? Is this a compensable golf locker room injury?

Alan Pierce:

Well, this would clearly be a compensable injury. This case, like the earlier one we discussed about the helicopter was really more of whether or not there could be a separate lawsuit for intentional misconduct on the part of the manager for doing this. So this was an immunity case. And in this case, you could get around the immunity from civil suit if you can show that the manager was engaged in a willful or an intentional tort because this was a tort case, not a comp case. So the facts were that the manager claimed that this was … This wasn’t done with the intention of causing injury, that they were sort of engaged in some type of horseplay. And like I say, the fact that the manager laughed and walked away was the part of the basis for the injured worker indicating that this was an intentional act.

So there was a finding here that there was no evidence that this was an intentional tort so that the claim against the manager could not proceed, despite the fact the injury was quite severe. And by the way, if I played a round of golf and only lost one ball, I’d be very happy. And I’m already sorry I said that. But again, we can have fun with these cases. I feel bad for the guy. I feel bad for the manager, but we are dealing with particular rules of law and cases and what is covered, what isn’t covered, what’s an accident, what’s intentional, who works for who. That’s what makes the practice of this field of law so exciting for me and exciting for Judson because we see all aspects of the human condition walk through our doors, tell us what happened, and we try to make the pieces fit as best we can to seek whatever area of recovery that could achieve a replacement of lost wage or payment of medical bills.

Judson Pierce:

Right. So key takeaways folks are that the workers’ comp law is designed, whether it’s in the United States or in Europe, to invoke broad coverage. And fault is usually irrelevant, and there is a line between intentional misconduct and abandonment. So workers’ comp covers more than you think, and sometimes less than common sense would suggest.

Alan Pierce:

You put that very well, Jud.

Judson Pierce:

Yeah.

Alan Pierce:

More than you would think and less than common sense would dictate.

Judson Pierce:

If you’ve got a bizarre case, you want us to break down, send it in because clearly real life is doing most of the writing for this show.

Alan Pierce:

Well, we want to thank, as we always do, our audience for tuning in and listening and hopefully enjoying these podcasts. We try to make them both entertaining but instructional. And to the extent that we do that, I can only tell you that we learn every time we do a podcast, we learn something we didn’t know before. So we hope that that translates to our audience. So I want to thank Legal Talk Network for giving us this platform and this forum. By the way, in a couple of months, this will be 21 years that we’ve been doing or I’ve been doing, and now Jud has joined me in doing workers’ compMatters and the Legal Talk Network. I think we started before the Word podcast was part of the general vernacular. And here we are 21 years later, still doing shows and still not running out of material.

And I think we could do this for another 20 and 21 years and still not run out of material, not run out of instructional examples that illustrates the many points of law and many points of fact that we deal with every single day. So having said that, I wish you all well. Make it a day that matters and tune into our next edition of Workers’ Comp Matters. Bye-bye everybody. Bye-bye.

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