The Top 10 Bizarre Workers’ Comp Cases for 2017
Annual “Bizarre” List Began 30 Years Ago
Continuing a New Year’s tradition that informally began 30 years ago, when my mentor, Dr. Arthur Larson, original author of Larson’s Workers’ Compensation Law, and I would meet each January at his home on Learned Place, here in Durham, North Carolina, and informally exchange lists of bizarre cases from the previous calendar year, I submit to you my list of the Top 10 Bizarre Workers’ Compensation Cases for 2017. For the past dozen years or so, I have released the annual list in electronic format. As you may know, a few years ago, the annual list was even featured on National Public Radio’s Saturday morning show, “Wait, Wait, … Don’t Tell Me.”
As is the case with previous “Bizarre Lists,” I am ever mindful of the fact that while a case might be bizarre in an academic sense, it is actually intensely real for the participants and their families. These highlighted cases involve real injuries, some even fatal. Life has its bizarre moments and, since the workers’ compensation world is quite representative of the larger world around it, the cases we see each year sometimes have quirky fact patterns.
And so, in the spirit of my annual January ritual, I offer ten bizarre published cases (in no particular order), and a couple of others that, while truly bizarre, didn’t make the appellate courts. If you know of others that fit the category, please send them along to me [email@example.com].
[Author’s Note: Citations link to Lexis Advance.]
CASE #1: Falling Clipboard Results in Fatal Helicopter Crash (Idaho)
In a case with a particularly unusual and tragic fact pattern, the Supreme Court of Idaho affirmed a state trial court’s order granting summary judgment in favor of the Idaho Department of Fish & Game (IDFG), on exclusive remedy grounds, in a wrongful death action filed by the father of a pilot killed in a helicopter crash in a remote region of that western state. The pilot was employed by a small aviation company that had been contracted to fly two IDFG employees to the remote site to conduct a fish survey. The copter crashed, killing all three persons aboard. Evidence indicated that, just prior to the crash, one of the passengers became air sick and opened the helicopter door, dropping a clipboard in the process. The jettisoned clipboard struck and damaged the tail rotor of the helicopter, making it too unstable to fly. The Court agreed that IDFG was the pilot’s statutory employer and, as such, was immune from tort liability.
Krinitt v. Idaho Dep’t of Fish & Game, 398 P.3d 158 (Idaho 2017).
See generally Larson’s Workers’ Compensation Law, § 111.04.
CASE #2: “Controlled Descent” Goes Out of Control (Georgia)
The Supreme Court of Georgia held that the state’s Board of Workers’ Compensation erred in ordering a forfeiture of workers’ compensation benefits, without appropriate factual determinations, where a cellphone tower employee sustained serious injuries attempting a “controlled descent” from a tower. As many of us know, Army Rangers and Armed Forces SEAL teams sometimes use the “controlled descent” method to get to the ground quickly from airborne helicopters. Sometimes the process is also used in emergency self-evacuation or rescue situations. Experts say it takes significant practice to perfect the skill. Here, evidence tended to show that the worker’s supervisor ordered the worker not to attempt the controlled descent, but rather to climb down to the ground using the cellphone tower’s ladder system. He ignored the warning and attempted the maneuver anyway. The Court acknowledged that there was clear evidence the worker had disobeyed his superior, but also indicated that the Board had nevertheless failed to make factual findings as to whether the worker’s actions were sufficiently rash under the statute (see Ga. Code Ann. § 34-9-17) so as to disqualify the injured worker from benefits. The case was remanded for additional findings.
See Chandler Telecom LLC v. Burdette, 300 Ga. 626, 797 S.E.2d 93 (2017).
See generally Larson’s Workers’ Compensation Law, § 34.01.
CASE #3: “Fore”: Country Club Locker Room Attendant Struck in Groin by Golf Club Shaft (New York)
Applying New York’s rule regarding co-employee immunity—that in order for a co-employee to be shielded from liability, the co-employee must (a) have been acting within the scope of his or her employment and (b) not have been engaged in a willful or intentional tort—a state appellate court held that a country club locker room attendant could proceed with a civil action against the club’s manager where the attendant alleged the manager struck him in the left testicle with a golf club shaft as the two were standing in the locker room area. The court reasoned that since there was no evidence the two had been engaged in horseplay and since the attendant alleged that after the incident, the manager laughed and walked away, there was an adequate showing that the manager may have struck the attendant intentionally. The manager’s statement that at the time he did not feel the attendant had been injured was belied by the fact that the attendant’s testicle had to be surgically removed.
Montgomery v. Hackenburg, 148 A.D.3d 1329, 49 N.Y.S.3d 578 (3d Dept. 2017).
See generally Larson’s Workers’ Compensation Law, § 111.03.
Case #4: SWAT Team Member Injured During “Bad Guy” Simulation (Ohio)
An Ohio county SWAT team member, who was struck in the head with a submachine gun by another officer during a simulated training exercise, may maintain an intentional tort action against the fellow officer, held a state appellate court. The two officers were part of a larger group participating in a Taser training exercise. Evidence suggested that prior to exercise, the training instructor indicated that no blows should be exchanged between participants. At the time of his injury, plaintiff had taken the role as a “bad guy,” and wore a special body suit to prevent the Taser barbs from reaching his skin. His role was to be uncooperative when the assault team entered the room. As the “good guys” entered the room, plaintiff performed his role, at which point the Taser operator was to discharge the Taser. Instead, the defendant, who was not holding the Taser, struck the plaintiff—who was not wearing a safety helmet—in the side of the head his submachine gun. Defendant contended he thought plaintiff was wearing protective headgear. Other team members indicated they knew the Taser suit offered no protection from physical blows. The appellate court said the trial court appropriately refused to grant summary judgment in favor of the defendant.
See Hunt v. Alderman, 2017-Ohio-7591, 2017 Ohio App. LEXIS 3902 (Sept. 13, 2017).
See generally Larson’s Workers’ Compensation Law, § 103.04.
Case # 5: Mischievous Worker Injured by Exploding Glue Pot (Missouri)
Claimant worked along with others in a tire shop. Claimant’s duties included patching tires, a task that required him to utilize special rubberized tire glue that was kept in a can. On the day of injury, another worker held the glue can in his hand as he attempted to repair a tire. Claimant, in an apparent effort at humor, lit the can with a cigarette lighter, surprising the co-worker, who dropped the glue can, whereupon it exploded, burning both the worker and claimant severely. The appellate court affirmed the denial of benefits to the claimant; his action in igniting the can of flammable adhesive was not an accident. The court distinguished an accidental injury versus an accidental event itself. This was no accident, according to the court.
See Hedrick v. Big O Tires, 2017 Mo. App. LEXIS 660 (June 29, 2017).
See generally Larson’s Workers’ Compensation Law, § 23.03.
Case #6: Airport Luggage Transport Driver Flips Transport Speeding to Meet Her Mother (Pennsylvania)
A Pittsburgh International Airport employee, whose job consisted of driving a luggage transport “tug,” and who sustained serious injuries when she flipped her tug as she traveled to one of the airport terminals to meet her mother—who was delivering feminine hygiene products and other personal items—could recover workers’ compensation benefits under the personal comfort doctrine, held a state appellate court. The court agreed with a workers’ compensation judge that the employee’s temporary departure from her duties did not remove her from the course of her employment. Moreover, a worker’s fault ordinarily plays no role in the recovery of workers’ compensation benefits.
See Starr Aviation v. Workers’ Comp. Appeal Bd. (Colquitt), 155 A.3d 1156 (Pa. Commw. Ct. 2017).
See generally Larson’s Workers’ Compensation Law, § 21.05.
Case #7: Restaurant Worker Killed During “Inside Job” Armed Robbery (Arkansas)
An Arkansas appellate court held that substantial evidence supported the state Commission’s finding that a restaurant employee was killed during the course and scope of his employment and, therefore, his survivors’ recovery against the employer was limited to workers’ compensation death benefits, Evidence indicated that the deceased was serving a customer at the time of an armed robbery by two off-duty restaurant employees—essentially an “inside job”— that the deceased had not clocked out for the night and had duties at the restaurant that he would have been required to complete before leaving the premises. The court noted that there was no history of animosity between the deceased and the two employees who robbed the employer’s restaurant (they were both subsequently convicted of robbery and capital murder). Citing Larson’s Workers’ Compensation Law, the court held that the deceased was within the time and space boundaries of his employment; the exclusive remedy provisions of the Arkansas Workers’ Compensation Act limited recovery to a claim under the Act.
See Herrera-Larios v. El Chico 71, 2017 Ark. App. 650, 2017 Ark. App. LEXIS 731 (Nov. 29, 2017).
See generally Larson’s Workers’ Compensation Law, § 8.01.
Case #8: “These Boots are Made for Walkin’”; Fashion-Conscious Jewelry Store Worker Denied Benefits for Tripping Incident (Indiana)
A jewelry store clerk, who tripped and fell as she walked from the back of the employer’s store to the front to assist a potential customer, was held to be entitled to workers’ compensation benefits in spite of the fact that there was no defect in the employer’s floor and the incident occurred when the zippers on the inside of her fashion boots hooked together, causing her to trip and fall. The clerk attempted to break her fall by grabbing a nearby chair, but when she did so, it merely swiveled and she fell further to the floor, sustaining a right femoral fracture that required a hip replacement.
The hearing officer denied the claim and the full Board affirmed, noting that the choice of the fashion boots was personal and not required by the employer. The court of appeals reversed. In its memorandum decision, the Court stressed that the fall was not caused by a preexisting condition suffered by the clerk. She was required to wear footwear of some type on the job and the clerk testified that she dressed up and tried to look as stylish as possible for her work. Since the injury arose from a risk that was neither distinctly employment-related nor distinctly personal in nature, it fell within the neutral risk category. The clerk’s injuries arose, therefore, out of and in the course of her employment.
See McBride v. Midwest Estate Buyers, LLC, 2017 Ind. App. Unpub. LEXIS 734 (June 9, 2017).
See generally Larson’s Workers’ Compensation Law, § 4.03.
Case #9: Employer and Co-Employees Not Liable in Tort Following Holiday Party Fatality (New York)
In this case, plaintiff’s husband, an employee of defendant, Memorial Sloane Kettering Cancer Center (“MSK”), became intoxicated at a holiday party organized by workers in MSK’s facilities department. The party was not sanctioned by MSK, did not occur on MSK property, nor was it paid for by MSK. All employees there were off duty.
Several coworker friends of the decedent contacted plaintiff, a registered nurse at MSK, advised plaintiff as to her husband’s condition, and then helped decedent into the plaintiff’s car. Plaintiff drove home with her husband, but left him in the car, parked in their driveway, in order that he might sleep off his condition. Approximately one hour later, plaintiff checked on her husband, finding him on the floor of the back seat, unresponsive. The autopsy report listed the cause of the death as alcohol intoxication and positional asphyxia.
Plaintiff sued MSK, contending, inter alia, that the co-employee’s actions were causally connected to her husband’s death. MSK denied the allegations and later sought to amend its answer to assert the workers’ compensation affirmative defense. The trial court denied both of MSK’s motions.
On appeal, the appellate court indicated the employees, in assisting decedent and placing him in his wife’s care, did not assume a duty, and nothing they did placed him in a worse or different position of danger. The court added that placing decedent into the car was not the proximate cause of his death; it merely furnished the occasion for the unfortunate occurrence. Summary judgment should have been entered in favor of MSK and MSK’s workers’ compensation affirmative defense was, therefore, moot.
See Gillern v. Mahoney, 154 A.D.3d 438, 60 N.Y.S.3d 819 (1st Dept., Oct. 5, 2017).
See generally Larson’s Workers’ Compensation Law, § 22.04.
Case #10: “Where’d the Ladder Go?”: HVAC Mechanic’s Decision to Jump from Roof Did Not Disqualify Him from Benefits (Pennsylvania)
Where an HVAC worker sustained injuries to his feet and back after he jumped from a two-story roof, his act of jumping was not the sort of deliberate and intentional act that would disqualify him from receiving workers’ compensation benefits, held a Pennsylvania appellate court. The worker, who had been cleaning condenser coils on the air conditioning units of the building, ascended to the roof at the beginning of the day by means of a ladder placed by roofers who were also working on the building. He descended to the ground at lunch, using the roofer’s ladder again. When he completed his work several hours later, however, the roofers and their ladder were gone.
He testified that he tried to get down using a roof hatch, but it was locked. While the worker had a cell phone, he did not try to call anyone. The court noted that the worker was a “traveling employee,” and that the course and scope of employment for such an employee was somewhat broader than for those with fixed places of employment. The court agreed with the state Board that the worker had no other way to get down; his action was not so foreign to and removed from his job as to constitute abandonment of that job.
See Wilgro Servs. v. Workers’ Comp. Appeal Bd. (Mentusky), 165 A.3d 99 (Pa. Commw. Ct. 2017).
See generally Larson’s Workers’ Compensation Law, § 38.06.
Revenge of the Slime Eels (Oregon)
In an as-yet unreported case from Oregon, on July 14, 2017, a truck driver and others sustained minor injuries in a four-vehicle accident on US Highway 101, when the load on the driver’s truck—7,500 pounds of slime eels (“hagfish”)—shifted and unexpectedly spilled onto the roadway. The driver, Salvatore Tragale, was driving north with 13 containers of slime eels on his truck. As Tragale approached an area of road construction, he attempted to stop and the load apparently shifted, causing one container to fly off the truck and land in the southbound lane. The other containers also spilled out onto the highway. Wildlife experts say the eels can emit enormous amounts of a gooey, slimy substance when they feel threatened. They apparently were not in favor of being transported by the truck to a waiting ship to be taken to Korea, where they are considered a delicacy. Experts speculate that the weight of the slime “sloshing” around in the tanks was a likely factor in the accident. Oregon highway workers had to use a small bulldozer to rid the highway of the gooey mess.
See Claim of Salvatore Tragale (unreported).
See generally Larson’s Workers’ Compensation Law, § 14.01.
Pizza Hut Supervisor Pepper-Sprays Employee After Argument Over Pepperoni (Georgia)
In mid-May 2017, a Sandy Springs (GA) Pizza Hut supervisor apparently discharged pepper spray into the face of a co-worker after the two became embroiled in an argument over the placement of pepperoni and cheese on a pizza. Most of the spray landed on the worker’s arm. According to a police report, the supervisor, who was later charged with disorderly conduct, initially argued about the pizza and the supervisor was told to go home by the general manager. The supervisor came back to the pizza shop, however, continued the argument, and discharged the pepper spray.
See article by Mitchell Northam, The Atlanta Journal-Constitution,
May 17, 2017.
See generally Larson’s Workers’ Compensation Law, § 8.01
The Top 10 Bizarre Workers’ Comp Cases for 2017