WCDefenseCA

Happy Monday, dear readers!

Those of you not in the bay area might not know about our Thunderstorms, but they sure are a thundering ever since last night.

Thunder and lightning are, over all, rare in these parts, unlike the going and coming rule, which pops up with some regularity in the workers’ comp world.  Monday morning, in particular, is a very dangerous time to be confronted with the going and coming rule, as workers injured over the weekend seeking to pin the bills and the lost time on an employer tend to get “hurt” in the company parking lot on Monday morning.

But, aside from that fine line where the worker goes from “commute” to “working”, we also have the “special mission” doctrine, which tends to put the whole work shift in the crosshairs of the workers comp world.

Such was the case in the matter of Estel v. LA County Metropolitan Transportation Authority, a case that was recently denied review by the Court of Appeal.  (I guess the defense arguments weren’t very… wait for it… appealing!  See what I did there?)

So, what happened in Estel?  Applicant had some pretty serious injuries that were sustained following a motorcycle accident traveling from a week-long training session at his employer’s request.   Applicant was used to the night shift, but the training was held during the day.  Although the hours were different and the duties were going to be different once he got there, the route and commute were to be the same.

So, the WCJ found that the claim was barred by the going and coming rule: applicant was on his way to perform his duties, but the route and commute were the same, so a shift in time and a shift in duties (once he got to his work station) were not sufficient to qualify for the going and coming rule exception.  But the WCAB reversed, finding that applicant’s changed shift coupled with his changed duties (again, once he got to work) were sufficient to qualify for the exception.  The Court of Appeal did not think the Estes case was “special” enough and denied review.

Ok, so if you followed the link on the “special mission” doctrine above, you’ll note the prior blog posts where the special mission exception to the going and coming rule was discussed.

The case and blog post that springs to mind is that of Lantz v. WCAB, which a 2014 Court of Appeal decision.  Therein, the COA ruled that not only is an extra shift (in other words, unusual work hours) not sufficient to qualify for the “special mission” exception to the going and coming rule.  Furthermore, the Court of Appeal specifically rejected the theory that “liberal construction” of the law is to be applied in cases where AOE/COE has already been found and not before.

Here’s where I’m having trouble following the logic in the Estel decision, though.  Applicant had not yet begun his new duties the day of his injury.  He was on his way to the training that, presumably, had not started yet.

Now, it makes perfect sense to raise the element of different job duties when the injured worker is returning from work – the fact that the job duties were different would understandably be more taxing on a worker than his or her routine work and would, understandably, make the commute home more dangerous.

However, why would the same effect apply when he had not yet begun these new job duties that day?  The route is the same, and the different shift, as per the Court of Appeals in Lantz, does not qualify for an exception to the going and coming rule.  The fact that applicant was going to do things that day that he doesn’t usually do, would then be the key element to determining that the injury was compensable.

Since the “special mission” test is a balancing act, it seems that the weight should have been in favor of the defense in this case, at least to your humble blogger.  But, then again, to your humble blogger, the weight should always be in favor of the defense.

It’s the holiday season, dear readers!  Channukah; Hannukah; Hanukah; the Festival of Lights, Christmas, New Years, and, of course, Festivus!

And, in the holiday spirit, your humble blogger brings you the case of Bitkarim v. Edible Arrangements.  Therein, applicant sustained an injury while on the way home from work.  Now, I know what you’re thinking, dear readers, “going and coming rule” right? Obviously, door-to-door doesn’t get you a workers’ comp claim.  Well, applicant had an interesting theory to defeat the going and coming defense.

During the Christmas season, Edible Arrangements, at least according to applicant, had employees working lots and lots and lots of overtime, to the point that exhausted employees got into car accidents on the way home.  In fact, after working overtime (“near doubling of the applicant’s normal shift duration” applicant was left “tired, apparently to a much greater degree than her normal shift.”)  The theory, according to applicant, was that these extra hours left applicant “unable to come to a complete stop due to her tired feet” resulting in an auto collision, and applicant’s injuries.

As we all know, the going and coming rule has exceptions… and lots of them.  One of them is the “special mission” exception, which provides that that when an injured worker is assigned to a special task, typically at a different location or at different hours than the usual job, going to or coming from the special assignment, and any injuries sustained during the commute tend to be compensable.

So, applicant in this case argued that the extra hours were a “special mission” and resulted in the exhaustion that caused the collision.  After all, how could you deny such an argument around Christmas time…?  What kind of a Grinch of a defense attorney would try to resist such a claim…?

Well, the WCJ was not persuaded.  Applicant testified to often working overtime around the Holiday season, including around Christmas time.  The WCJ opined that “[a]pplicant working overtime at the time of the injury on 12/15/2008 is not extraordinary or in any way outside of the normal course of business for this employer… [i]n fact, it appears to be rather expected.”

Applicant also argued that Labor Code section 3202 and the “liberal construction” provision of the same, requires a finding of compensability, or at least of the “special mission exception” being applied.  The WCJ disagreed there as well, finding that applicant’s frequency in working overtime and being tired negated the “special” component of the “special mission” exception.

Although not mentioned in the WCJ’s report, it should be noted that the Lantz case, a Court of Appeal decision effectively held that the “liberal construction” provision of 3202 does not apply when AOE/COE has not been established.  So, when AOE/COE is in question and has not been established, liberal construction has no more place than conservative  construction, communist construction, or even libertarian construction (where buildings are made out of marijuana and privately constructed roads).

The WCAB adopted the WCJ’s report and the Court of Appeal denied review.

From the bottom of my cold, hard, barely-human defense attorney heart, I wish my beloved readers, from the frequent commenters to the silent lurkers, and everyone in between, a very Merry Christmas and a very happy New Year!

After Wednesday’s post, this humble blogger was flooded with requests, suggestions, demands, and even threats – all urging another post on the going and coming rule.  Who am I to deny all of these imaginary readers what they want?

But this one – this case for you to hold and cherish for the duration of your weekend – comes from the Court of Appeal: it is, of course, the matter of Lantz v. WCAB/SCIF.

Applicant Lantz was a correctional officer who was tragically killed after a car crash on the drive home from work.  Now, this would not be a blog post if we could simply say “going and coming rule – take nothing!”  The facts in this case complicate the matter to the point where the Court of Appeal felt an opinion was warranted.

Applicant was not just driving home from work on any day – he was required to work an extra shift after his regular shift.  So, while he would normally be commuting home, he was working and when he would normally be home and not working, he was driving home.

The question is whether requiring an employee to work an additional shift at the same location, constitutes a “special mission” so as to defeat the going and coming rule.

The Court of Appeal recognized the special mission exception, but also noted that the special mission exception requires (1) extraordinary activity as compared to routine duties; (2) AOE/COE; and (3) activity was undertaken at the express or implied request of the employer and for the employer’s benefit.

Using this standard, the COA readily conceded that prong 2 and 3 were satisfied – working an additional shift is, no doubt, within the course of the duties of the employee and the activity was mandatory- required by the employer for its benefit.

On the other hand, the first prong is not so easily satisfied.  Is working another shift truly extraordinary?  The test is whether the location, nature or hours of the work to be performed deviates from the norm.  In this case, the COA deferred to the WCAB’s determination that the extra supervisory duties that may come with this particular shift did not rise to the level of extraordinary.

Of interest here is the ready recognition by the Court of Appeal that it is possible that a sudden change in work hours would be extraordinary duty.  The image comes to mind of a deputy suddenly yanked from dispatch to work intake and processing, or a maître de asked to help unload a truck.

One other nugget to consider here:  the Court of Appeal addresses the argument oft cited by lien claimants, applicants’ attorneys, and crazies roaming the streets of San Francisco: “Liberal Construction!”  No, no, dear readers, this isn’t in reference to a bunch of long-haired college hippies building houses out of recycled milk bottles, but, instead, a quote from Labor Code section 3202: “This division and Division 5 … shall be liberally construed by the courts with the purpose of extending their benefits for the protections of persons injured in the course of their employment.”

Ok, calm down, dear reader – I know you’re pounding your keyboard and thinking “why is Greg wasting my time with this? I’m not running a prison, why is this case relevant?”  Well, here it is – the nugget you can take to every case in the workers’ comp system that is set for an AOE/COE trial.

“The policy of liberality is predicated upon there being a person who is ‘injured in the course of [his or her] employment’ and therefore, when given its plain meaning, does not aid in deciding the threshold question of whether the employee was injured in the course of his or her employment.”

So, the next time there is a question of whether the injury is compensable at an AOE/COE trial, any effort to use the liberal construction language of 3202 to lower the standard of proof the applicant must otherwise meet, Lantz should be at the ready to negate the argument, as a citeable, binding, published decision.  Have a good weekend!

Private security firms often present a tricky issue for workers’ compensation matters.  Injuries still occur, despite the rigorous training courses they provide:

And then comes the inevitable debate – who is to bear the cost of applicant’s (allegedly) industrial injury?

Be careful, dear readers, in opening the can of worms that is Robert Flores v. Garnett Protective Services & Security.  There certainly are a few layers to this case.

Applicant Robert Flores was employed by Garnett, which, under the terms of its contract, provided security to Joseph’s Café.  Joseph’s was a venue version of Batman, providing restaurant service by day and night club service by night.  On occasion, Joseph’s Café would tip Flores and other security guards for a job well done, or offer them additional hours on a cash basis for extra events that were not on the regular schedule.

Garnett had trained Flores, and had the power to hire, fire, or direct his work.  Joseph’s had no one of these powers.

Mr. Flores was called in to do an extra shift, as he is five or six times a year, and was on his way to Joseph’s Café when an unfortunate automobile collision resulted in a claimed industrial injury.  Joseph’s Café had insurance, while Garnett had allowed its insurance to lapse, bringing in the California Insurance Guarantee Association.  CIGA’s position was, to the surprise of absolutely no one, that Joseph’s was also Flores’ employer, and that the injury sustained by Flores was industrial as a “special mission” exception to the “going and coming rule.”

The Arbitrator agreed, reasoning that employment was established by showing that sometimes Joseph’s would hire Flores directly to cover special events that were outside the scope of Joseph’s contract with Garnett, and that the special event to which Flores was going on the night of his injury constituted a “special mission” because it was unusual.

Joseph’s insurer, Pennsylvania Manufacturer’s Association Insurance Company, petitioned the Workers’ Compensation Appeals Board for reconsideration, which was readily granted.  The WCAB held that Flores was not an employee of Joseph’s because Joseph’s had no power to control the manner of his performance or to terminate his employment, only to terminate its contract with Garnett.

Furthermore, because Flores worked special events, like the one he was headed to at the time of his injury-causing-collision, this was not a special errand or mission but just a regular discharge of his duties (although required of him infrequently).  Therefore, there was no industrial injury.

The dissenting opinion to the panel would have concurred with respect to employment, but not with respect to industrial injury.  Deputy Commissioner Sullivan would have found an industrial injury, reasoning that the scheduled event Flores was to work met the definition of a “special mission,” which “occurs when the employee is invited or required by the employer to perform an activity that is within the course of the employment, but is unusual or extraordinary in relation to the employee’s routine duties.”

Bear in mind, dear readers, that your humble blogger’s very instincts militate against agreeing with any notion that any injury should be considered industrial.  However, in this case, he is inclined to agree with Commissioner Sullivan’s opinion.  Although applicant’s regular job included duties year-round, a special mission was involved five to six nights a year.  Percentage-wise, the special events constituted 1.4-2% of the nights in the year, which should meet the definition of “unusual or extraordinary.”

But, there is cause for rejoicing all around, no?  After all, Pennsylvania is off the hook because it is not an employer; CIGA is off the hook because no industrial injury occurred, and Garnett is not on the hook as much as it thought it was, because the injury is now Flores’ responsibility (here’s hoping Mr. Flores had auto insurance!)

If you ask an applicant attorney about the “going and coming rule,” 9 out of 10 will tell you “oh yeah, it means you’re going to find this claim compensable, and I’m coming for your money!”  Well, probably not, but, maybe after this blog post, they’ll start saying that.

The going and coming rule stands for the premise that employees engaged in their commute to or from work are not “working” yet, and so injuries sustained during the commute are not industrial (nor is harm done to third parties the liability of the employer via respondeat superior).

However, the exceptions are many to this rule, such that it’s barely a rule at all, but more of a notion.

That’s why it’s always so refreshing to see the rule used to bar a claim.  Such cases are the carrots seen in an ocean of sticks.  Thus, dear reader, your humble blogger respectfully submits for your consideration the case of Lapesarde v. State of California, Department of Corrections, which was recently denied review by the Court of Appeal.

Applicant, a nurse, was involved in an MVA while driving home from work.  Nonstarter, right?  Going and coming; coming and going; open and shut case.  Well, if that were so, what would I write a blog post about?

Applicant argued the claim was not barred by the going and coming rule because of the “special mission” doctrine.  That is, when an injured worker must go on a “special mission,” one that does not apply to the regular commute, the going and coming rule does not apply.  The special mission (should you chose to accept)?  Applicant worked his regular shift from 6am to 2pm, and then worked a second shift from 2pm to 10pm.  After this second shift, applicant spent 30 minutes in the car and drove home, stopping for gas and coffee so that he could stay awake for his 90 minute drive.  He woke up in the hospital after his MVA with no memory after that pit stop.

So, what do you think, dear readers?  Was the shift a “special mission” or was the regular commute but at an irregular time going home just your typical going and coming?

Well, the WCJ at the trial opined that the claim was compensable, and defendant appealed.  In addressing defendant’s petition for reconsideration, the WCAB panel considered the “special risk” rule, which “states that if a condition on or off the employer’s premises creates a special risk of harm to an employee who is about to enter or who has just left the premises, the injury is within the course of employment.”

However, the “special risk” theory was rejected by the WCAB because applicant made it to a gas station for a stop, and was not exposed to any risk that the general public did not face, a test that can defeat the “special risk” theory exception to the going and coming rule.

In reviewing the WCJ’s opinion, the WCAB specifically rejected reasoning that “applicant was fatigued when he left work and started his drive home.”  The WCAB’s reasoning instead turned on the fact that “applicant was driving on the road on his usual commute in his personal vehicle.  Nothing in that route that he drove or the conditions that he experienced was any different than any other driver on the road at that time.”

Based on this opinion, it would appear that being particularly tired from overtime does not defeat the going and coming rule by itself.  Nor does the change in time to an additional shift following a regular shift defeat the defense either.

Do you think the same result would be reached if applicant had some in for a second shift rather than stayed at work to do a second shift?  Would coming in for an irregular shift at the regular location have been enough to make this a “special mission”?  Are there any job duties that might make a worker particularly susceptible to a “special risk”, such that driving might be particularly dangerous as compared to the dangers visited on the public?

Let me know your thoughts dear readers – I have plenty of pennies to share.

The Medical Specialty of a Qualified Medical Evaluator Panel.  Parties often live and die by the specialty.  Defendants pull for orthopedists and applicants pull for chiropractors, and in almost every case involving a medical dispute, swords are drawn, muskets are primed, and blood is shed over which panel specialty should be controlling.  Dear readers, by blood, I of course mean money in the form of litigation dollars – but for every business, and every business is to this humble blogger of some concern, blood is green and comes in paper form.

And let it be known to every workers’ compensation Judge in the land, parties will not hesitate to take the matter to trial, or even before the Workers’ Compensation Appeals Board if necessary.  Such was the case in Paula Lecocq v. Associated Feed & Supply Company.  There, the parties had a dispute over which panel specialty controlled (neurology or orthopedic surgery).  However, the WCJ made a decision and entered a Finding and Order at the Mandatory Settlement Conference, overruling defendant’s request for a trial on the issue.

If anyone had any thoughts about the matter being resolved by simply denying a trial, the Workers’ Compensation Appeals Board managed to turn things around in a very simple and straightforward opinion.  Granting defendant’s petition for removal, the WCAB held that WCAB Rule 10353(a) “[the WCJ] shall not hear sworn testimony at any conference.”  Therefore, because there was no agreement of the parties and no record upon which a decision could be based, the WCJ must allow a trial on the issue.

So the defendant will have his day in court, and will have a decision to seek removal of if it comes to that.

Now, imagine if you can, dear readers, the (green) blood that was shed in resolving this issue.  Even for some biased and inconsiderate people who giggle gleefully at the thought of employers and insurers having to waste money to litigate an issue, the time of the WCJ, the WCAB commissioners, and all the support staff and clerks was wasted on this dispute.  And it will be wasted again and again in this case (for a trial and an appeal) and in every single cases in the EAMS system.

The panel specialty is important and can determine a lot about a case – this is evidenced by the fact that both applicants’ attorneys and defense attorneys are willing to put in the time to fight about it.  IT IS IMPORTANT!

Often enough, on this blog and in the considerably less family-friendly environment of this attorney’s thoughts, your humble blogger has mused about the fact that there should be a rule that, if given enforcement consistently and uniformly, would put to rest this needless litigation and its senseless expense.

If only a rule existed that required the treating physician’s specialty to be controlling of the panel specialty.

Perhaps the pending reforms will bring us just such a delivery!

Happy Monday, dear readers!

Your humble blogger is returned alive and mostly well from the WCRC in Dana Point!  The conference was wonderful and good times were had.  After so many years in workers’ compensation it’s nice to have such a positive and welcoming community and a lot of fun to see familiar faces again and again.

There were many interesting sessions (including your humble blogger’s of course) and even a know-it-all like yours truly came away feeling that I learned quiet a bit.  Side note, dear readers, that if you missed the Special Mission Impossible presentation at WCRC, feel free to join our webinar this month as we’ll be presenting it to the internet connected public.

While discussing the effects of not submitting Medicare Set-Asides for CMS approval, the discussion turned to a certain panel decision issued last year, Harrison v. Canyon Springs Pools and Spas, Inc.  In that case, the WCAB denied defendant’s petition for reconsideration where applicant successfully had a C&R rescinded!  Isn’t that a dreadful feeling – because even when your C&R is approved and you’re “done”, you’re still not done!

Applicant, while represented, went to an AME who ultimately found no impairment and thought applicant was exaggerating his symptoms based on observing him through a window.  Applicant, at some point, entered into a C&R with defendant, and ultimately dismissed his attorney. 

The parties obtained a “zero dollar” MSA and did not submit it to CMS.  However, applicant was charged with approximately $900 by CMS and required to pay that money to CMS, at which point he sought to set aside his C&R.  The trial judge did so, reasoning that there was “mutual mistake” on the point that CMS would accept a zero dollar MSA, which it apparently did not.

The WCJ also ruled that the parties were both mistaken in concluding that the AME found no industrial injury – he did, just no impairment and some harsh criticism of applicant for alleged malingering. 

The WCJ ordered the C&R set aside and rescinded the Order Approving Compromise and Release and suggested the parties obtain substantial medical evidence in support of an amended C&R.

So, dear readers, what does that mean for us?  Earlier, your humble blogger wrote about another case where the WCAB not only allowed applicant to assume the risk for an MSA which CMS had rejected as being $500,000 light, but also allowed him to self-administer his MSA over the objections of defendant.  In this case, however, the WCAB determined that it must be mutual mistake if the parties agree to a $0 MSA without seeking CMS approval.

Since CMS’s enforcement mechanism are almost entirely based on refusing to provide benefits to the injured worker, isn’t the assumption that applicant is always assuming the risk?

Perhaps it makes sense to have C&Rs clearly reflect that there is no mistake – applicant is knowingly assuming the risk that the $0 MSA might not be recognized by CMS.  But, as the WCJ pointed out in the Harrison matter, “[i]t could not possibly have been the parties’ intent to subject applicant to unlimited bills from Medicare, potentially up to the entire amount of the settlement.  If the undersigned had understood that to be the intent of the parties, the settlement would never have been approved.”

The WCAB is consistently inconsistent in this regard because there are rarely monolithic rulings binding on all the WCJs and on ever WCAB panel of judges – en banc opinions occurs but certainly with not even close to the frequency of panel decisions. 

What do you think dear readers?

What happens if you see your employee is about to get hurt, and you immediately fire him before the injury occurs?  Can you avoid workers’ compensation liability?  If a worker falls from a high platform, can his employer shout “you’re fired” before he lands?

I know those two are silly examples, but what about this one: If you fire your employee, and he gets hurt on the way home, are you somehow on the hook?

Consider, if you will, the case of Jose Medel v. Charter Communications, Inc., a recent writ denied panel case.  Mr. Medel was employed as a technician by Charter Communications, and used the company car to drive to and from work, and to drive out to the homes and businesses of Charter clients to install or maintain their phone and internet connections.

One fine day in April, he was summoned to the Human Resources office, where his employment was terminated.  His company car keys were taken, as were his company cell phone and ID badge.  Chartis then arranged for Mr. Medel to be taken home by Town car.

Unfortunately, the car’s driver lost consciousness and in the resulting car accident, the driver was killed and Mr. Medel sustained injury.

In resisting the claim, Chartis argued that Mr. Medel was no longer an employee by the time he got into the car for his drive home.  Chartis also raised the argument of the going and coming rule – after all, Mr. Medel was on his way home and no longer providing service to his employer.

Both defenses were soundly defeated.

Relying on Shoemaker v. Myers, a 1990 California Supreme Court Case, the WCAB noted that “the employment relationship continues for a reasonable time after its technical termination in order to effectuate an orderly termination of the relationship.”  Even after the magic word “you’re fired” are said, the spell does not immediately take effect.  In all likelihood, once Mr. Medel had made it safely home, the relationship would have been at an end, assuming there was no phone call asking him to come pick up a final check or his personal belongings.

Because of the terms of the employment, Mr. Medel found himself stranded at his employer’s premises, without a car or a phone.  It would be interesting, though, to see what result we’d have if Mr. Medel had turned down the offer of the ride, and had called a cab instead.  Your humble blogger would argue that the self-procured cab ride home may have terminated the employment relationship, whereas the employer-provided transportation failed to do so.

The WCAB also rejected the “going and coming” rule because of the patchwork of exceptions.  Mr. Medel was technically engaged in a special mission by going to the HR office, and was thereby covered by workers’ comp until the mission was over (his arrival at home).  Additionally, employer-provided transportation like a bus, carpool, etc., typically provides yet another example of the going and coming rule’s limitations.

As many employers have learned the hard way, liability for the actions and the injuries of employees does not end so abruptly as uttering the magic words of “you’re fired.”  One of your humble blogger’s former employers, long, long, before he became an attorney, would make sure that a fired employee would be escorted from the premises, to avoid intentional falls and injuries.

Just another thought, though – why would you want to have workers’ compensation bar this claim?  Imagine, if you will, that Mr. Medel’s claim was defeated by the defenses discussed above: he would then seek damages in tort against Chartis, with much higher litigation costs and much larger (potential) verdicts.  But, again, perhaps this is an area where not all defense interests are aligned.

If an employee “lives” far away from where he “works” is he ever off duty?  The answer, according to the Workers’ Compensation Appeals Board and the Court of Appeal, is yes!

In the case of Dann Peter Shubin v. Workers’ Compensation Appeals Board, applicant worked as a pilot for Southwest Airlines, and was based in Oakland, even though he and his wife “lived” in Pasadena.  Applicant would arrange his schedule to have weekends off and would stay with friends or in his van between flights.

Under Southwest Airlines’ scheduling scheme, after a flight, reserve pilots like Mr. Shubin would receive a 9-hour “rest” period during which they could not be recalled for more work.  Applicant had just started one of these rest periods and decided to visit friends in Winters, a town roughly an hour away.

En route, applicant was in a car collision, and subsequently filed a claim for workers’ compensation benefits.  The Workers’ Compensation Judge found the injury AOE/COE (arising out of employment and within the course of employment), and defendant filed a petition for reconsideration.

Because the WCJ did not submit a report on recommendation, we will never know his reasoning.  Never the less, the WCAB studied the issue and granted reconsideration, recognizing that the coming and going rule applied to this case.  [If the going and coming rule does not apply to an employee who, by company-wide policy, can not under any circumstances be assigned any tasks for the next 9 hours, I don’t know where it would apply.]

The “going and coming” rule is one of those rare instances where common sense and reasonability poke their way through the shroud of California’s Workers’ Compensation system.  Essentially, the rule provides that injuries sustained going to or coming from work are not covered by workers’ compensation.

There are exceptions to this rule, of course.  These exceptions include “special missions” and “commercial travelers,” the details of which are the subject of a future post.  Because applicant was officially and actually off-duty for the next 9 hours, the going and coming rule applied and applicant’s claim was barred.

Applicant was a free man living in a nation of laws – he chose to “live” in Pasadena, he chose to “work” in Oakland, and he chose to visit Winters on the night of his unfortunate car accident.  The only alternative outcome for this case would have been to hold that if an employee works outside the four walls of his home, he is always on duty by virtue of being on the other side of his front door.

Dear readers, by no means am I the type of man to tell others how to run their businesses.  But it is worthy to note that in this case, Southwest was saved by having a company-wide policy of duty/off-duty pilots and sticking to that policy.  No doubt if applicant could have offered evidence that pilots were occasionally called back to duty during their “rest” period, in violation of this rule, the case would have turned out quiet differently.

Happy Wednesday, dear readers!

The internets are certainly abuzz with the recent en banc decision regarding vocational rehabilitation in the Nunes decision.  But how about something to lighten the mood?

Time for a somewhat literal blast from the past!  This one is from September of 1947, the case of McPhail v. The Austin Company.

Applicant was struck by a stray bullet under the armpit while working as a carpenter in Sacramento.  The source of the bullet was never discovered.  There was no evidence of any bad feelings among the employees or hostility, but there was evidence that there were gun raffles over the last few months for the employees.  Surprisingly, regular gun raffles are rarely advertised as benefits offered to employees now adays. 

The commission held that the injury was AOE/COE.

Now, had applicant died as a result of the injury, likely the Mysterious Death Presumption would have applied.  After all, if the employee’s death occurs at or near the place of employment, then an inference of compensability is typically found unless there is some other, nonindustrial explanation for the death.

But if the applicant did not die, and could be a witness regarding the facts, there is no reason to apply the mysterious death doctrine (or the MDD as the kids say).

Picture a carpenter working on the third floor of a building when he is suddenly struck by a bullet, and he lives to tell the tale.  No likely suspects, no explanations.  How are we to determine whether this is an industrial injury?  The bullet could have struck a passerby instead just as easily, no?

For example, in the case of Rodgers v. WCAB, an employee robbed in the employer’s parking lot on her way back from a lunch-break-bank-trip was ordered to take nothing as the court reasoned that the injury was not industrial because the cause of the robbery was formed independent of anything having to do with work.  By contrast, in the case of Parks v. WCAB, applicant was attacked very close to the employer-provided parking lot as she was boxed in by children crossing the street and other cars behind her.  The WCAB held that children crossing in that area presented a “special risk” which was not visited on the general public.

So are stray bullets a risk to which the general public is exposed or was there something special about working as a carpenter on the third floor of a building?  Your humble blogger urges his readers not to conduct any studies involving shooting randomly in the air to see how many bullets strike people at work vs. people walking on the street.  This question is truly best left in the realm of theory and rhetoric.

Could the employer have conducted a study of stray bullet victims in the 5 years prior to the DOI to see how often random pedestrians and drivers are struck as opposed to carpenters on the third floor of a building?  Try googling “stray bullet” and “Oakland” as just one example.

What are your thoughts, dear readers?