WCDefenseCA

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?

Happy Friday, dear readers!  Looks like we made it another week, although I’m sure many of us are already checked out, mentally and/or physically, for the 3-day weekend!

So, for those still with us, let’s do a quick pop quiz to get our minds working.  What weighs more, a pound of gold or a pound of feathers?  Now, you might instinctively say that they are equal in weight, but I assure you that a pound of feathers weighs much more.  You see, a pound of gold is just a pound of gold, but carrying around a pound of feathers also means carrying around the guilt of what you did to those poor birds…

Well, for those of you who are still with me and haven’t decided to banish me from your life forever, may I respectfully direct your attention to the latest poison slowly emanating from Sacramento?  To wit, Senate Bill – 213. 

SB213, the latest in Sacramento’s bizarre crusade to make access to a solvent hospital in California a thing of the past, would define “injury” to include infectious disease, and such an injury would be granted a rebuttable presumption of industrial causation for any “hospital employee who provides direct patient care in an acute hospital.”  Among the conditions that would be so presumed includes methicillin resistant staphylococcus aureus skin infections, bloodborne infectious diseases, tuberculosis, meningitis, and COVID19.

The proposed legislation would also create a presumption for a variety of types of cancer, musculoskeletal injuries, PTSD, and respiratory disease.

In other words, if SB213 becomes law, hospital employees’ skin and contents will be presumed to be injured on an industrial basis, shifting the burden on the defendant to prove that the injury is not industrial. 

Hopefully, SB213 wakes up to find itself on “bad-ideas-that-will-never-become-law Island,” and it will certainly not want for friends.  At some point, the legislature needs to stop thinking of employers as some endless piggy-bank to be looted.

Many of California’s employers might look at SB213 and think that hospitals are a special case and that such an attitude of turning employers into involuntary general health insurers will not affect them, but this is not true.  California already has various presumptions for law enforcement, firefighters, and corrections officers.  We saw a widespread COVID19 presumption apply to all employers in the case of outbreaks, with efforts already growing to delay the sunset of that law. 

Unless Sacramento’s behavior is put in check, the scope and breadth of presumptions will continue to grow, or, at least, your humble blogger, occasionally called the WC Oracle by the handsome man in the mirror, thinks so.

Have a good weekend!

Happy Monday, dear readers!

My more regular readers will know that it is truly a rare thing when your humble blogger agrees with a result that disfavors the defense, but… well… here we are.

Before I had my life view permanently warped by the inner workings of the workers’ compensation system, as a perfectly normal, healthy, happy person I often wondered why employers would punish employees that sprang into action to prevent crime – why would you fire the hero that tackled the armed robber looting your restaurant?  Why would you suspend the sales clerk that tackled a fleeing shoplifter?

Well, workers’ compensation provides an excellent explanation of exactly why employers are incentivized to do that – it is far cheaper to replace stolen articles by raising prices on customers than it is to pay for the workers’ compensation benefits flowing from injuries sustained during heroics.  The punishments serve as a deterrent for future situations with other employees.

One of the very early blog posts on this most humble of blogs was on this very topic.  Well, a recent panel decision, Alex v. All Nation Security Services, Inc., provided the WCAB with an opportunity to reiterate and explain the policy that awards benefits to superheroes moonlighting as ordinary employees.

In Alex, a security guard confronted and chased after a disruptive person hurling profanity and harassment as customers and employees alike.  In the process, Mr. Alex was struck by the employee and sustained further injury after he left the employer’s premises in pursuit of said trouble-maker.  The employer argued that the claim was not compensable as Mr. Alex had received clear instruction and training that he was not to chase after or apprehend anyone – the stated job duties were far closer to “observe and report” than “serve and protect.”

By giving chase, defendant argued, the conduct exceeded the scope of employment, and by leaving the employer’s facility, the facts only strengthened the argument.  Well, neither the trial judge nor the WCAB agreed.  The situation arose when applicant was at his employer’s premises doing his job as a security guard – what followed was authorized activity… if only performed in an unauthorized manner.  The trial judge’s ruling that the injury was compensable was upheld by the WCAB.

Now, to the naysayers reading this blog, allow me to offer you a hypothetical.  If I hire a security guard to work the night shift at my 24-hour-person-crusher-factory, and I give specific and clear instructions on a weekly basis to my security guard NOT to get crushed by the person-crushers… am I safe from workers’ comp liability when the guard inevitable suffers the inevitable? 

Never mind why I have such a factory, but the point is still there – instructing the injured worker not to do things that will result in the injured worker getting hurt is insufficient.  In some cases there may be affirmative defenses or perhaps reduced benefits due to employee serious and willful misconduct, but this is, after all, a no fault system.

The Alex case lays out the authority and citations for this fairly well, chief among them the 1988 Court of Appeal case Westbrooks v. WCAB (employee misconduct, whether negligent, willful, or even criminal, does not necessarily preclude recovery … in the absence of an applicable statutory defense, such misconduct will bar recovery only when it constitutes a deviation from the scope of employment.”) and should drive the point home that employers seeking to mitigate their workers’ compensation exposure will benefit most from increased training, improving conditions, and pricing the inevitable workers’ compensation claim into the cost of services. 

The theory that the fault of an employee will bar the claim is much like the car your humble blogger’s parents owned in the Soviet Union (a non-starter).