Posted on by Stephen Tuck

Injured … but not.

The law of workers’ compensation has always had a somewhat tense relationship with medicine (one thinks of the bitter observation by a doctor on the Australian epidemic of ‘repetitive strain injury – “The Australian RSI epidemic burnt out … because in the end doctors stopped certifying as physically injured large numbers of uninjured workers”).  Nevertheless, from time to time the law has been open to accepting perhaps-novel medical assessments without murmur.

Mr Eaves was a colliery worker.  While at work in May 1905 he suffered a foot injury and sought compensation under the Workmen’s Compensation Act 1906.  The claim was accepted and payments of 18 shillings a week were commenced (in today’s value, £107.50 or $195.30 AUD).

Cambrian Collieries, Clydach Vale (Nr Tonypandy, Rhondda) South Wales 1905
Cambrian Collieries, Clydach Vale, South Wales 1905 [from here]
In January 1909 the matter was reviewed before a County Court judge.  His Honour accepted the medical evidence that the worker had made a complete physical recovery but had developed a mental condition whereby the injured leg had no sensation and was completely unable to bear any weight.  He was considered to be suffering from a “traumatic neuraesthenia”.  There was no evidence of malingering.  The judge found that because the worker was physically capable of work, his compensation should be reduced to a penny a week (today, 48 pence / 0.88c AUD).  The worker appealed.

In the Court of Appeal, Cozens-Hardy MR stated that

The effects of an accident are at least twofold: they may be merely muscular effects – they almost always must include muscular effects – and there may also be , and very frequently are, effects which you may call mental, or nervous, or hysterical, whichever is the proper word to use in respect of them.  The effects of this second class, as a rule, arise directly from the accident from which the man suffered just as much as the muscular effects do, and it seems to me entirely a fallacy to say that a man’s right to compensation ceases when the muscular mischief is ended, though the nervous or hysterical effects still remain.

Fletcher-Moulton and Farwell LJJ reached similar conclusions.  The appeal was allowed.

An interesting footnote to the case is that Mr Eaves was represented by very distinguished senior counsel, Rufus Isaacs KC, whose later career would include the posts of Lord Chief Justice of England, Ambassador to the United States and Governor-General of India.

Eaves v Blaenclydach Colliery Co Ltd [1909] 2 KB 73

Posted on by Stephen Tuck

What was the worker doing?

British India was always an odd blend of compassion and ruthlessness.  By the 1920s, the Raj had enacted workers’ compensation laws for the subcontinent.  It then proceeded to enforce them fairly ruthlessly.

In about 1936 Mr Maung Ba Aye was employed by the Bombay Burmah Trading Corporation as an elephant handler.  On the day in question, however, he had been asked to hand-deliver a letter between two company officials.  On his way back he was attacked by a bear, suffering fatal injuries.  The Commissioner for Workmen’s Compensation ordered that compensation be paid to the deceased’s mother.  The Company appealed to the High Court of Burma, stating that the deceased was not a worker at the relevant time.

Elephant at work - Rangoon
Elephant working in Rangoon, 1907 (Image from here)

The Workmen’s Compensation Act 1923 (Br. Ind.) relevantly defined a workman at 2(1)(n) as

… any person … who is –…

(ii) employed in any such capacity as is specified in Schedule II [which included employment”in the training, keeping or working of elephants or wild animals”] …;

Roberts CJ considered that the Act was a “quasi-penal statute” and so it should be read strictly rather than leniently.  As a result –

it is clear that at the time that the deceased was being sent out on a message to Mr. Barlow he was not employed in the task of training, keeping or working of elephants or wild animals. He was a person who was normally employed in that capacity, but was being given other duties to perform on that particular day. … [B]eing obliged to administer the Act as it stands,we are constrained to say that the deceased was not a workman within the meaning of the Act for the  pur­poses of this appeal.

A similar line of reasoning was followed by Dunkley J.  As a result the employer could not be ordered to pay compensation in relation to the death.

Bombay Burmah Trading Corp’n Ltd v Ma E Nun, AIR 1937 Rang 45

Posted on by Stephen Tuck

Workers’ Compensation as a Vocation?

My twitter feed is nothing if not diverse.  One of the feeds I’ve been especially enjoying lately is that of a young postulant describing her life in the convent.  She certainly loves her calling, and her posts got me to thinking whether I could be doing something more with my own life.

This in turn got me to thinking about vocations.  I know for sure that I have no calling to the priesthood.  But, I’ve always had fondness for the monastic life.  My honours thesis was written on St Bernard of Clairvaux.  The austerity of the Cistercians has a remarkable appeal.  There is, actually, a Cistercian abbey a bit over an hour from where I live.  Nevertheless, there’s not a lot of point exploring the cloister while my darling daughters are still young. The monastic life is unpaid, and there’s never a good time to leave your kids high-and-dry.

(To digress: can you imagine St Bernard of Clairvaux with a twitter account?  If you can’t, read a collection of his letters.  He’d have been incapable of shutting up and probably a pretty savage troll)

And then it crossed my mind that maybe what I’m doing now is my vocation.  That is, maybe being a worker’s compensation lawyer really is what God has called me to do.

Hear me out.

My family situation means I can devote most of my energies to work.  Possessions have very little hold over me:  I live in a single rented room in a lodging house.  I can’t imagine ever owning a house, or wanting to.  My belongings are really just my clothes, some books and a battered old car. My food intake is fairly basic: oats, vegetables, bread rolls and stuff out of tins.  The things I like best are cheap wine and good beer.  Fleshy desires are basically non-starters with me, partly by nature and partly by obligation.  My life, then, is already quite a pared-back thing.

So far, so good. I imagine some or all this could be said of quite a few people in the world. What changes it for me from a situation to a calling?

The Big Guy does.

Pope Leo XIII (image from here)

Pope Leo XIII issued Rerum Novarum in 1891.  He talked about the proper relationship of capital and labour and stated that –

wealthy owners and all masters of labor should be mindful of this – that to exercise pressure upon the indigent and the destitute for the sake of gain, and to gather one’s profit out of the need of another, is condemned by all laws, human and divine. To defraud any one of wages that are his due is a great crime which cries to the avenging anger of Heaven. … Lastly, the rich must religiously refrain from cutting down the workmen’s earnings, whether by force, by fraud, or by usurious dealing; and with all the greater reason because the laboring man is, as a rule, weak and unprotected, and because his slender means should in proportion to their scantiness be accounted sacred.

A big whack of my work goes into ensuring people receive proper weekly compensation under the Workplace Injury Rehabilitation and Compensation Act 2013.  With some insurers (naming no names) this can require negotiating tactics that border on “demanding money with menaces”.  I’d never before thought of it as work with a touch of holiness.

Sweatshop, c.1890 (Image from here)

On the plaintiff side I’ve almost invariably acted on “no win – no fee” terms.  That is, if the claimant does not recover compensation, my fees are waived.  This, too, seems to be approved by Rerum Novarum, inasmuch as help is provided to people who might otherwise go without:

when there is question of defending the rights of individuals, the poor and badly off have a claim to especial consideration. The richer class have many ways of shielding themselves, and stand less in need of help from the State; whereas the mass of the poor have no resources of their own to fall back upon, and must chiefly depend upon the assistance of the State. And it is for this reason that wage-earners, since they mostly belong in the mass of the needy, should be specially cared for and protected by the government.

Another big slab of my work involves ensuring workers compensation insurers pay what they are required to in terms of medical expenses.  Pope John Paul II touched on precisely this point in Laborem Exercens:

The expenses involved in health care, especially in the case of accidents at work, demand that medical assistance should be easily available for workers, and that as far as possible it should be cheap or even free of charge. … A third sector concerns the right to … insurance … in case of accidents at work. Within the sphere of these principal rights, there develops a whole system of particular rights which, together with remuneration for work, determine the correct relationship between worker and employer.

The Church’s teaching on matters of economics in particular or social justice in general tend to attract condemnation from my side of politics – sometimes from podcasters like Mike Spaulding and sometimes from commentators like Rush Limbaugh (Limbaugh, frankly, should know better).  Well, be that as it may.  The more I think of it, the more this work really does seem to be my vocation, and the way I am being asked to serve.

I can’t imagine anything I’m happier to think.

Ad maiorem Dei gloriam!

Posted on by Stephen Tuck

A case I regret

I long ago lost track of the number of cases I’ve handled or been otherwise involved in.  Some stick in your mind for one reason or another.  The facts may have been unusual, or the outcome particularly good.  One has stayed with me because I regret it despite getting a good outcome.

I had a brief and inglorious career as a defence lawyer in the workers’ compensation system.  A large part of my work involved opposing claims for weekly payments and medical expenses by injured workers.  In the case I am thinking of, the plaintiff was a fellow who was in his late 20s at the time of the hearing.  He had broken one ankle in a work accident and been on payments for some years.  The ankle had lead to other problems due to the change in his gait, and so he had progressed from an ankle fusion to multiple other fusions of the bones in his foot.  I can’t remember now, but I expect he would have been developing problems in his knee, hip and back for the same reason.

The workers’ compensation insurer (my client) had stopped his weekly payments on the basis that he could return to some form of work.  I found that implausible: he had left school early and had shown no aptitude for retraining.  It was difficult to see him in any line of work that didn’t involve having a sound body.  Moreover, his accident had involved no negligence and so he could not sue for common law damages.  Weekly payments would be his only form of recompense.

Despite all of this, my client’s instructions were clear: we could negotiate a further limited period of payments, failing which he would have to run his case.  So, off I went to court on the hearing day.  I expect we made some trifling offer to begin with.  Eventually we offered the limit of our instructions.  Now, I was secretly hoping his lawyers would tell us to get knotted.  If they’d run the case, I had no doubt we would have lost, have lost badly, and would have deserved to lose badly.  To my amazement, however, our offer was accepted and the case settled.

I’ve always regretted this outcome.  Yes, I know the justifications: I was there to carry out my client’s instructions.  He was represented by an experienced barrister and competent solicitors. And it was the plaintiff’s case to fight or compromise.  I don’t find any of those terribly satisfactory.  No matter how you gloss it over, there’s no honour in ripping off an injured worker.

Posted on by Stephen Tuck

Bullying in the Workplace

I’m starting this post in my office with a file in front of me and a cup of tea brewing.  The file is one of those that I get passionate about within five minutes of looking at it, because it involves workplace bullying.

I hate bullies.  I know, nobody likes them, but I truly fucking hate them.

I could tell you a lot of guff about why I hate them.  It’s enough to say that I was knocked around at school a lot when I was a kid, and for a decent whack of my life I kinda thought I had to just wear it when people threw their weight around.  I can’t abide the casual cruelty of bullies.  I hate the way they present you with your own weakness: “you wouldn’t last ten minutes working there – the boss would be chasing you about the place with a hammer“.  I hate their petty, venal abuses of power.  Above all, I hate the endless excuses they have: “you don’t know the pressure I’m under” … “I built this business up from nothing so I can run it how I want” … and the most sadistic and responsibility-denying of all: “if you don’t like it here, you know where the door is” when the all concerned know full well jobs are scarce and workers easily replaced.

As an aside, I notice the legal profession has a few dark secrets of its own –

lawyer overwork

It’s tempting to name the person in the case I’m working on, but I won’t.  I’m happy to let the pleadings do the talking (Michael Avenatti I am not).  It’s very tempting, however, to paste a Hellraiser meme into an affidavit and serve it on my opponent:

The case in question isn’t straightforward but I think I can win it.  I couldn’t fight back when I was on the factory floor.  The courtroom and the registry are my preferred battleground.  This defendant likes pushing people around?  I’ll play.

Let’s dance, motherfucker.

Posted on by Stephen Tuck

The challenges of maturity

When a worker is of mature years, a damages claim for work injuries can present particular challenges

country west
Image from here

Ms Schofield was aged in her mid-fifties.  She suffered a right knee injury while employed by a butcher.  At the time of her accident she was receiving average weekly earnings of around $375.00.

She sought leave in the Melbourne County Court to sue for common law damages for economic loss and pain and suffering on the basis that she had suffered a serious injury.  The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic.) provides at §335(2)(d) that –

If—
(a) the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 of the degree of impairment of the worker as a result of the injury is less than 30 per cent; or
(b) the worker makes an application under section 328(2)(b) —
the worker may not bring proceedings for the recovery of damages in respect of the injury unless— …
(d) a court, other than the Magistrates’ Court, gives leave to bring the proceedings …

It was common ground that if the plaintiff retained any work capacity she would not meet the definition of “serious injury”, at least in respect of economic loss.  The medical evidence broadly showed that if she retained any work capacity it was for sedentary or clerical duties.

Judge Dyer noted that

Ms Schofield is relatively advanced in age and has not worked since sustaining her injury in 2014. She has very limited education and my own assessment of her, particularly during cross-examination before me, was that she would have very limited skills to offer other than in a very simple customer service role. Plainly her knee injury renders her unsuitable for that type of employment.

She has effectively no experience in office work, and I accept her evidence, supplemented to some extent by the report of Mr McGuire from Converge International, that she did require further computer skills in order to have any real prospect of employability in an office environment. Indeed, the plaintiff’s own evidence of effectively repeating [a] short computer course without any real benefit confirms my view that she is a woman who would have no real aptitude for any office work position in the open labour market.

His Honour concluded that the plaintiff had no current work capacity for suitable employment and that this was likely to continue indefinitely.  She was granted leave to sue for damages.

Schofield v Country West Gourmet Meat & Chicken Pty Ltd [2018] VCC 614

Posted on by Stephen Tuck

Taking a gamble at work

You don’t often see an employer using its own fault as a defence.  Except maybe in a jurisdiction where gambling is a way of life.

Mr Baiguen seems to have had a stroke before or just upon arriving for work. He was noticed to be dribbling, his face was drooping and he appeared unresponsive and disoriented. Two coworkers gave him a lift home. When his girlfriend found him two days later he was dribbling and unable to talk. He had missed entirely the three-hour window within which medical care might have substantially improved his outcome.

The Nevada Industrial Insurance Act (NRS 616A.020(1)) provides that

The rights and remedies provided in [this Act] for an employee on account of an injury by accident sustained arising out of and in the course of the employment shall be exclusive … of all other rights and remedies of the employee … on account of such injury.

Baiguen sued his employer for failing to provide him with timely medical help. The District Court found that his sole remedy lay in worker’s compensation and dismissed the claim:Baiguen v Harrahs Las Vegas LLC (Clark Co. Dist. Ct, Judge Herndon, 14 March 2016, unreported). The Court of Appeals disagreed and reversed the lower court: Baiguen v Harrahs Las Vegas LLC (Nev. Ct App., Silver CJ, Tao and Gibbons JJ, 28 February 2017, unreported). The employer appealed to the Supreme Court of Nevada.

Harrahs
Image from here

The Supreme Court agreed with the District Court. It followed its earlier decision of Mirage v Cotton, 121 Nev. 396; 116 P. 3d 56 (2005), finding that an injury occurs ‘in the course of employment’ when it occurs at the workplace while going to or from work within a reasonable time.

The Court also considered that the accident had arisen out of Mr Baiguen’s employment. Nevada law classes risks at work as “employment risks” (for example, getting a hand caught in a machine), “personal risks” (for example, epilepsy) and “neutral risks” (for example, getting struck by lightning).  A mix of an employment risk and another risk would be an employment risk. The court found that while Baiguen’s stroke was a personal risk, his employer’s defective response to his symptoms had caused him to lose his chance of a better medical outcome:

That Harrah’s might respond inadequately to Baiguen’s stroke in the workplace, due to inadequate workplace policies, procedures, or training, or fail to follow existing policies, procedures, and training, is a risk related to Baiguen’s employment. Such inadequate policies, procedures, and training are conditions of the workplace akin to well-recognized physical hazards, like the risk that the injury from a painter’s stroke will be worsened by falling off a ladder, or an epileptic cook who suffers a seizure and burns himself on a stove.

A second argument for the injury arising out of employment is intriguing. The court accepted the classic position that at common law a person is not obliged to aid a stranger in peril*. A duty exists where a special relationship (like employer/employee) exists. The court said that

Under the facts before us, any duty on Harrah’s part to render aid to Baiguen would have arisen out of the employer-employee relationship, not another special relationship such as innkeeper-guest or restaurateur-patron. … Thus, while the NIIA’s exclusive remedy provision cannot bar a guest or a patron from suing in court for negligence on facts analogous to these, the NIIA limits an employee’s remedy to workers’ compensation.

Baiguen v Harrahs Las Vegas LLC, 134 Nev. Adv. Op. 71 (2018)

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* McKinnon v Burtatowski [1969] VR 899 (Vic., 1968); Lorelai Laird, ‘Bad Samaritan’, 104(6) ABA Journal 16 (2018)

Posted on by Stephen Tuck

Who owns the mosquitoes?

The Body Shop used to sell bags saying something like “if you think you’re too small to be noticed, go to bed when there’s a mosquito in the room”.  Apparently they were right.

William Nami was a railway worker whose job was to work in a team operating a ‘tamper’ (a machine for repairing railway lines). Sometimes he worked inside the machine’s poorly-sealed cabin, and sometimes outside. Unfortunately, the area in which he worked was mosquito-infested town of Sweeny in Brazoria County, Texas.  The railway’s right of way was narrow and weed-strewn and sometimes had pools of water.  In late September 2008 Nami was diagnosed with West Nile virus and suffered significant ill effects.  He sued his employer under §51 of the the Federal Employees Liability Act:

Every common carrier by railroad  … shall be liable in damages to any person suffering injury while he is employed by such carrier … for such injury … resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

He alleged that the employer had failed to provide a safe workplace.  A jury at trial found tat the employer had been negligent and awarded damages: Nami v Union Pacific Railroad Co. (267th District Court, Koetter J, 2012, unreported).  The employer’s appeal to the Court of Appeals was rejected: Union Pacific Railroad Co v Nami 499 SW 3d 452 (Tex. Ct App., 2014).

Mosquito Day
Image from here

Union Pacific appealed to the Supreme Court of Texas.  The Supreme Court noted that insects are considered to be wild animals (ferae naturae) and

… under the doctrine of ferae naturae, a property owner owes an invitee no duty of care to protect him from wild animals indigenous to the area unless he reduces the animals to his possession, attracts the animals to the property, or knows of an unreasonable risk and neither mitigates the risk nor warns the invitee. … The same rule applies to an employer’s duty to provide a safe workplace.

In this case the employer had done nothing to increase (and could have done nothing to decrease) the risk of mosquitoes to Mr Nami.  Accordingly negligence was not made out.

Union Pacific Railroad Co v Nami, 498 SW 3d 890 (Tex., 2016)

Postscript – The Supreme Court of the United States declined to hear Nami’s appeal: Nami v Union Pacific Railroad Co., 137 S.Ct. 2118 (2017).

 

Posted on by Stephen Tuck

But it doesn’t *say* that!

A fascinatingly technical decision recently came out of the West Virginia Supreme Court of Appeals.  The case is a good demonstration of the principle expressio unius est exclusio alterius.

William Moran was a Rhode Islander and employed by a construction company in that state.  The company sent him to work on a construction project in West Virginia in January 2012.  While there he died of carbon monoxide poisoning at a hotel.  His wife lodged claims for worker’s compensation in both West Virginia and Rhode Island.  Liability was accepted in both claims, although no benefits were actually paid on the West Virginia claim because the $711.30 weekly benefits which would have been payable were cancelled out by the $765.15 per week payable under the Rhode Island claim.  West Virginia Code §23-2-1c(d) provides that

If any employee or his or her dependents are awarded workers’ compensation benefits or recover damages from the employer under the laws of another state for an injury received in the course of and resulting from the employment, the amount awarded or recovered, whether paid or to be paid in future installments, shall be credited against the amount of any benefits payable under this chapter for the same injury.

Mrs Moran subsequently reached a damages settlement with a number of defendants in connection with her husband’s death. Rhode Island law required her workers’ compensation benefits to be suspended.  The quantum of the settlement was such that the suspension would be greater than her life expectancy.  She then requested reinstatement of her West Virginia claim benefits.  A claims administrator and two review bodies determined that her Rhode Island benefits, though suspended, still cancelled out any West Virginia benefits.  Mrs Moran appealed to the West Virginia Supreme Court of Appeals.

experessio
Image from here

The Court upheld the appeal.  It concluded that the Code intended West Virginian benefits to be payable in a case such as Mrs Moran’s.  The Code applied a credit only for workers’ compensation benefits or damages recovered from the employer.  Absent reference to recovery from a third party, the legislature must have intended the section not to apply to such recoveries.  Further, where payments were suspended, benefits were not being paid and so the section was not engaged.

Because W. Va. Code § 23-2-1c(d) does not provide that suspended benefits awarded under the laws of another state be credited against workers’ compensation benefits awarded pursuant to West Virginia law, it is not the proper role of this Court to create such a credit.

Moran v Rosciti Construction Co LLC (W. Va Sup. Ct App., 4 June 2018)

Posted on by Stephen Tuck

Bad weather can be murder

What happens when a civilian is conscripted into police work?

On 13 March 2011 Kristine Constantino phoned the California Highway PAtrol from her home in Kettenpom, California.  She whispered “help me” and that she lived at the end of the Kettenpom airstrip.  The dispatcher formed the impression that she was trying to avoid being overheard.  The message was passed to the dispatcher of Trinity County Sheriff’s Office, who tried to call Constantino without success.  The call for help was passed to the Office’s Corporal Ron Whitman.

skyrichardsonandkristineconstantinorogueriver201012
Christopher Richardson and Kristine Contantino (Image from here)

Apparently because Kettenpom is a remote town, Whitman called Norma Gund who lived near the airfield.  He asked her to do a welfare-check on Constantino.  He said that Constantino has called 911 for help, which probably related to bad weather.  He did not advise her that the caller was whispering or trying not to be overheard.  Gund and her husband went to Constantino’s home.  Constantino and her partner Christopher Richardson had immediately before been murdered by Tomas Gouverneur, who was still at the scene and attacked the Gunds, causing significant injuries (the full sequence of events is detailed in an article from radio station KMUD).

The Gunds sued Trinity County as Whitman’s employer.  Thye alleged that he had negligently misrepresented that the call for help was likely weather related and did not suggest a crime in progress.  The County applied to dismiss the claim  On the grounds that the Gunds’ only remedy was in workers’ compensation: Labour Code §3602.  California’s Labour Code §3366 provides that:

… each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person … engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division.

The trial court agreed and dismissed the claim: Gund v County of Trinity (Trinity County Superior Court, Scheuler J, 27 April 2014, unreported).  The Gunds appealed.

The trial court’s decision was affirmed by the Third District Court of Appeal.  The Court noted that if Corporal Whitman had responded to Constantino’s call for unspecified ‘help’, he would have been engaged in active law enforcement because

any 911 call seeking unspecified help presents a risk of criminal activity.  Since the deputy would have been engaged in active law enforcement had he responded, plaintiffs were engaged in active law enforcement when they responded to the 911 call on his behalf — regardless of the deputy’s misrepresentations to plaintiffs that the call was likely weather-related and omission of facts that the caller whispered for help, was disconnected, and did not answer a return call. Even though plaintiffs were unaware of the facts suggesting potential criminal activity and felt lulled into a false sense of security by the deputy’s misrepresentations and omissions, plaintiffs still knew they were responding to a 911 call for help, the nature of which was not certain.

It followed that §3366 applied.  Because the Gunds could claim workers compensation, they had no common law damages claim.

Gund v County of Trinity (2018) __ Cal.App.4th __.