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.

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.

The challenges of maturity

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

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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

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.

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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)

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
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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).

 

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.

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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)

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 __.

Courtside Coffee

Because it’s Friday, it’s a good time for a lighter post.

I was in the County Court a couple of days this week in a workers compensation matter. The morning of the first day was rather busy. How busy? It was 1pm when I finally had my first cup of coffee of the day (headaches were starting).

County Court, Melbourne
County Court, Melbourne

There was, however, a consolation. The forecourt of the County Court contains the Octane Coffee stand. It doesn’t look like much, but the coffee is always first class and served quickly. The hot chocolate is a particular highlight: some of the best I’ve ever had in Melbourne.

Octane Coffee, Melbourne
Octane Espresso, Melbourne

My dog-walking, real-estating friend Allie recently blogged about her delight at being able to drink Dunkin’ Donuts coffee again.  Anyway, it crossed my mind that most lawyers probably have a preferred courtside pit stop, where they can get a strong coffee or a soothing cup of tea for a stressed client. So lawyers, tell us what your court area haven is?

Who are you working for?

Frank Benedetti was employed by Schlumberger Technology Corporation. Pursuant to that employment he worked on an oil well owned and operated by Cimarex Energy Company. On 9 December 2013 he was injured in a work accident. He sued Cimarex in the Canadian County District Court.

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Cimarex as well operator was considered to be immune from suit. The Oklahoma Workers Compensation Code [85 OS 2011 §302(A) and (H)] relevantly provided that –

The liability prescribed in this act shall be exclusive and in place of all other liability of the employer … at common law … for such injury … to the employee … except … where the employer has failed to secure the payment of compensation for the injured employee.

For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well … shall be deemed to be an … employer for services performed at a drill site or location with respect to injured … workers whose immediate employer was hired by such operator or owner at the time of such injury.

The District Court summarily dismissed Benedetti’s claim. His appeal to the Court of Civil Appeals was dismissed. He appealed to the Supreme Court of Oklahoma.

The Supreme Court upheld his appeal. Following Strickland v Stephens Production Co., 2018 OK 6 it found that paragraph (H) was an unconstitutional “special law” breaching Art. 5 §59 of the Oklahoma Constitution

Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.

The case was remanded for further proceedings in the District Court.

Benedetti v Cimarex Energy Co, 2001 OK 21

Nothing to See Here

Interesting decision out of Texas on the subject of video surveillance.

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A worker suffered a back injury while working on an oil rig in January 2008.  He sued his employer under the Jones Act alleging negligence and supply of an unseaworthy vessel.  Four years and two spinal surgeries later he was placed under surveillance by his employer and filmed for about an hour performing a range of outdoor activities.

At trial the Harris County District Court considered the footage inadmissible without viewing it.  The jury found for the plaintiff.  On appeal the decision to exclude the footage was upheld. The employer appealed to the Supreme Court of Texas.

The Supreme Court found that the trial judge had erred.  A trial court could not properly exercise its discretion to exclude without viewing it.

We hold that, as a general rule, a trial court should view video evidence before ruling on admissibility when the contents of the video are at issue. We recognize circumstances might arise where viewing is unnecessary or extremely onerous. For example, “[t]here may be cases where the probative value of the evidence is so minimal that it will be obvious to the court that the potential prejudice . . . substantially outweighs any probative value the evidence might have.” Additionally, video depositions need not be viewed before ruling on objections unless the objection is specific to a visual aspect of the deposition. Exigencies of trial, moreover, could make it difficult to find time to view a late-offered video, especially if the video is lengthy. The parties could potentially address such timing issues by submitting representative excerpts for the trial court’s review. In any event, trial courts should “undertake their best efforts in attempting to view the subject visual recording prior to ruling on its admissibility.” Exceptions should be few and far between.

A new trial was ordered.

Diamond Offshore Services Ltd v Williams (Supreme Court of Texas, 2 March 2018)