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.

oilfield
Image from here

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.

surveillance
Image from here

 

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)

Pollock v Girl Scouts of So. Alabama Inc (2015) H&FLR 2015-25

Dana Louise Pollock v Girl Scouts of Southern Alabama Inc (2015) H&FLR 2015-25

Court of Civil Appeals (Alabama)

27 February 2015

Coram: Thompson PJ, Donaldson, Pittman, Thomas and Moore JJ

Appearing for the Plaintiff: Not identified
Appearing for the Defendant: Not identified

Catchwords: Alabama – workers compensation – arising out of employment – in the course of employment – horse riding

Facts: The plaintiff was employed by the defendant as a facility named Camp Scoutshire Woods.  She was  employed as its business manager and assistant to the camp director.  It was customary for the camp’s horse director to arrange a hose ride for staff of the camp at the end of the six week summer camp program.  It was not part of the plaintiff’s duties to take part in this ride, nor was it part of her remuneration, and the defendant did not derive a benefit from it.

When the ride took place on 29 June 2011, the plaintiff’s horse bolted and she fell, sustaining a back injury.  The plaintiff claimed compensation under Alabama’s Workers’ Compensation Act.  The Act requires that, for an injury to be compensable, it must arise out of and in the course of employment: Ala. Code 1975, §25-5-1(8).  The defendant sought and was granted summary dismissal of the claim on the basis that the injury did not so arise: Pollock v Girl Scouts of Southern Alabama Inc (Mobile Cir. Ct, unknown judge,  18 February 2014, unreported).  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. The phrases “arising out of” and “in the course of” in §25-5-1(8) denote two distinct concepts and both must be met to bring a case within the Act.

Ex parte Shelby County Health Care Authority, 850 So. 2d 332 (Ala. 2002), followed.

2. The criteria for determining whether an injury has arisen out of and in the course of employment are not closed.  However, the Court took particular note that –
(a) The ride was voluntary and recreational and unrelated to the plaintiff’s duties as business manager and assistant to the camp director.  Further, it was not naturally related to or incidental to her work.
(b) The defendant derived no benefit from the holding of the ride.
(c) While the defendant permitted the plaintiff to take part in the ride, it did not encourage her to do so.

Young v Mutual Savings Life Insurance Co, 541 So.2d 24 (Ala. Civ. App. 1989); Ex parte Shelby County Health Care Authority, 850 So. 2d 332 (Ala. 2002); Moore’s Case, 330 Mass. 1, 110 NE.2d 764 (1953); Wooten v Roden, 260 Ala. 606, 71 So.2d 802 (1954), followed.

Board of Managers of City of Birmingham Retirement and Relief System v Elliott, 532 So.2d 1019 (Ala. Civ. App. 1998); Ex parte Holton, 886 So.2d 83 (Ala. 2003); Kennedy v.Cochran, 475 So.2d 872 (Ala. Civ. App. 1985), distinguished.

Judgment

The Court’s judgment is available here.

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Sharper v New Orleans Saints (2014) H&FLR 2015-5

Darren Sharper v New Orleans Saints (2014) H&FLR 2015-5

Louisiana Court of Appeal (Fourth Circuit)

22 October 2014

Coram: Belsome, Bonin and Dysart JJ

Appearing for the Plaintiff: Frank A Bruno
Appearing for the Defendant: Christopher J Kane and Gerard J Gaudet (of Adams & Reese)

Catchwords: Louisiana – workers compensation – American Football – professional athlete – claim – payments – time limit.

Facts: The plaintiff was a professional athlete employed by the defendant between 2009 and 2011.  In the 2009-2010 football season he sustained a left knee injury in the course of play.  He underwent treatment and was re-signed by the defendant for the 2010-2011 football season.  The defendant classed him “partially unable to perform” and paid him his full salary. During that season he ultimately returned to play.  He was not resigned by the defendant following the 2010-2011 season and formally retired from professional football in November 2011.  On 14 December 2011 he submitted a claim for workers compensation.

Louisiana Revised Statute 23:1209 A (1) provides that –

In case of personal injury … all claims for payments shall be forever barred unless within one year after the accident … the parties have agreed upon the payments to be made under this Chapter, or … a formal claim has been filed.

The plaintiff’s claim was rejected by Louisiana’s Office of Workers’ Compensation on the basis that his claim was ‘prescribed’ (that is, had been lodged out of time) because it was lodged more than 12 months after the injury was sustained and the running of the time limit was not delayed by the payment of compensation payments.  The plaintiff appealed.

Held: dismissing the appeal, that although there were games in the 2010-2011 season where the plaintiff did not play, he attended practices and games and took part in meetings and rehabilitation, all of which was work he was required to perform under his contract and for which he was paid his full salary.  Accordingly the salary he was paid consisted of earned wages and not payment in lieu of compensation.

Dobler v United Fidelity & Guaranty Co, 508 So.2d 176 (La. App. 4th Cir., 1987) and Jones v New Orleans Saints, 800 So.2d 1025 (La. App. 5th Cir., 2001), considered.

Judgment

The Court’s judgement is available here.

Whigham v Jackson Dawson Communic’ns (2014) H&FLR 2014-53

Stephen Whigham v Jackson Dawson Communications and The Hartford (2014) H&FLR 2014-53

Supreme Court of South Carolina

27 August 2014

Coram: Toal CJ, Hearn, Kittredge and Pleicones JJ, and Moore AJ

Appearing for the Plaintiff: Douglas A Churdar (of Churdar Law Firm)
Appearing for the Defendants: Benjamin M Renfrow and Wesley J Shull (of Willson Jones Carter & Baxley PA).

Catchwords: South Carolina – workers compensation – team building event – kickball – injury – compensability

Facts: The plaintiff was employed by the defendant (Jackson Dawson Communications) as Director of Creative Solutions.  The employer attached value to holding team building events and the plaintiff proposed holding a company kickball game.  The company endorsed the proposal and instructed him to proceed with it, including spending a certain amount of the company’s funds.  During the kickball game which ultimately took place, the plaintiff jumped and landed awkwardly, suffering a severe break of his right leg.

Section 42-1-160(A) of the South Carolina Code provides that for an injury to be compensable, it must arise “out of and in the course of employment”.

The plaintiff lodged a claim for workers compensation which was rejected by a single member of the Workers’ Compensation Commission and by the full Commission on the grounds that the injury had not arisen out of or in the course of employment.  The plaintiff’s appeal to the Court of Appeals was dismissed: Whigham v Jackson Dawson Communications, (S.C. Ct. App., Pieper, Konduros and Geathers JJ, 11 April 2012, unreported).  The plaintiff appealed to the South Carolina Supreme Court.

Held: per Toal CJ, Hearn J and Moore AJ, allowing the appeal, that –

1. In assessing whether a work injury is compensable, the Workers’ Compensation Act is liberally construed towards providing coverage.  Any reasonable doubt in the Act’s interpretation should be construed in favour of coverage*.

Shealy v Aiken County, 341 SC 448, 535 SE.2d 438 (2000), approved.

2. An injury arises out of employment where a rational mind would identify a causal relationship between the injury and the conditions under which the work was performed.

Crisp v SouthCo Inc, 401 SC 627, 738 SE.2d 835 (2013), approved.

3. To assess whether a recreational or social activity fell within the course of employment, the court considers whether it falls within the following factors –

(a) It occurred on the employers premises during a lunch or recreational period as a regular incident of employment.
(b) The employer made the activity part of the employee’s services or otherwise expressly or impliedly required participation.
(c) The employer derived a substantial direct benefit from the activity beyond the intangible value of improvement in employee health or morale.

Leopard v Blackman-Uhler, 318 SC 369, 458 SE.2d 41 (1995), followed.

4. In this case, the plaintiff was impliedly required to attend the game which he had organised and it became part of his services.  As such it arose out of the course of employment.

Per Kittredge and Pleicones JJ (dissenting), that there was insufficient evidence to warrant overturning the decisions of the courts below.

Judgment

The Court’s judgment is available here.

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* This may be seen as a norm of compensation statutes: cf Hegedis v Carlton & United Breweries (2000) 4 VR 296 at ¶32.

Young v Workers Comp. Appeals Board (2014) H&FLR 2014-37

Daniel Young v Workers Compensation Appeals Board and County of Butte (2014) H&FLR 2014-37

Court of Appeal of California (Third Appellate District)

25 June 2014

Coram: Nicholson APJ, Hull and Butz JJ.

Appearing for the Plaintiff: Craig E. Johnsen (of Mastagni, Holstedt, Amick & Johnsen)
Appearing for the First Respondent (Board): No appearance
Appearing for the Second Respondent (County): Mr Richard A Weyuker and Ms Lauren E. Sible (of Cuneo, Black, Ward & Missler)

Catchwords: California – workers compensation – corrections officer – exercise outside work hours – jumping jacks – work requirement – expectancy

Facts:  The plaintiff, aged 64 years, was employed as a Correctional Sergeant by the Butte County Sheriff’s Department. The Department required its employees to maintain themselves in good physical condition so to be able to sustain the “strenuous physical contacts” of the role. However, it did not provide an opportunity to exercise during working hours. It also did not provide guidance as to the exercises or activities required to maintain the necessary level of fitness. The plaintiff therefore maintained a personal fitness regimen in his own time. While doing “jumping jacks” as part of this regimen on 9 January 2012 he sustained a left knee injury (injury).

The plaintiff claimed workers compensation for the injury and a Workers Compensation Judge found the injury to be compensable under §3600(a)(9) of the Californian Labor Code. That section provides that workers compensation benefits are not payable for an injury arising out of

voluntary participation in any off-duty recreational, social or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.

The Workers Compensation Appeals Board (Board) disagreed and annulled the decision: Young v County of Butte (Workers’ Comp. App. Bd, 20 September 2013, unreported). The plaintiff sought review of the decision.

Held: Annulling the Board’s decision, that –

1.  There is a reasonable expectancy of activity in connection with employment if an employee subjectively believes their participation in the activity is expected by the employer and this belief is objectively reasonable. The worker’s subjective belief is a question of fact and its objective reasonableness a question of law.

Ezzy v Workers Compensation Appeals Board (1983) 146 Cal.App.3d 252 and City of Stockton v Workers Compensation Appeals Board (2006) 135 Cal.App.4th 1513, followed.

2. To find a belief objectively reasonable, there must be a substantial nexus between the employer’s requirements and the specific off-duty activity in which the worker was engaged when injured. In this case, the failure of the department to provide guidance as to exercises or an opportunity to exercise at work meant it was objectively reasonable for the plaintiff to believe the department expected him to exercise while off duty. It would be completely unrealistic to find that jumping jacks – being a common part of warm-up exercises – were not expected of middle aged correctional sergeants who were required to maintain good physical condition.

City of Stockton v Workers Compensation Appeals Board (2006) 135 Cal.App.4th 1513 and Wilson v Workers Compensation Appeals Board (1987) 196 Cal.App.3d 902, followed.

Judgment

The Court’s judgment is available here.

Wingfield v Hill Bros Transp. Inc (2014) H&FLR 2014-30

George Wingfield v Hill Brothers Transportation Inc (2014) H&FLR 2014-30

Supreme Court of Nebraska

16 May 2014

Coram: Heavican CJ, Wright, Connolly, Stephan, McCormack, Miller-Lerman and Cassell JJ.

Appearing for the Plaintiff: Mr Stacy L. Morris (of Lamson, Dugan & Murray LLP)
Appearing for the Defendant: Caroline M. Westerhold (of Baylor, Evnen, Curtiss, Grimit & Witt LLP)

Catchwords: Nebraska – workers compensation – deep vein thrombosis – pulmonary embolism – pre-existing condition – causation

Facts: The plaintiff commenced work with the defendant as a truck driver in or about late January 2010. On 26 February 2010 he was found to be suffering a deep vein thrombosis (DVT) and pulmonary embolism. It was accepted that he was required to work approximately ten hours a day and would be seated during that time period.

The plaintiff had been a truck driver for around 35 years. He had suffered two similar incidents previously, once in September 2005 in Missouri and once on 31 December 2009 (that is, about a month before beginning work with the defendant). Following the 2009 incident he was prescribed anticoagulation medication which was expected to be long term, although there was medical evidence that it was prescribed at a subtherapeutic level. There was further evidence that the injuries could have arisen from non-work related factors including obesity, heredity and smoking.

The plaintiff filed a workers compensation claim which was rejected: Wingfield v Hill Bros Transp’n Inc (Neb. Workers’ Comp. Crt, Hoffert J, date not known, unreported). The plaintff appealed.

Held: per curiam, dismissing the appeal –

1. It was appropriate in cases of DVT and pulmonary embolism to use the same test for causation as is used in heart attack cases. That is, requiring both legal causation and medical causation.

2. The test for legal causation where there is a pre-existing condition is whether the exertion or stress experienced by the claimant in employment is greater than that experienced in the ordinary non-employment life of the employee or any other person. Medical causation would be established when a preponderance of the evidence showed that employment contributed in a material and substantial degree to the injury.

Zessin v Shanahan Mechanical and Electrical, 251 Neb. 651, 558 NW. 2d 564 (1997), followed.

3. In non-cardiac cases, a plaintiff with a pre0existing condition must establish that the injury was caused by employment and not simply the progression of the pre-existing injury.

Swanson v Park Place Automotive, 267 Neb. 133, 672 NW. 2d 405 (2003), considered.

Judgment

The Court’s judgment is available here.

Kalloponi Comércio de Alimentos v Unidentified Respondent (2010) H&FLR 2014-13

Kalloponi Comércio de Alimentos v Unidentified Respondent (2010) H&FLR 2014-13

Regional Labour Court of Rio Grande do Sul

26 October 2010

Coram: Not reported.

Appearing for the Appellant: Not reported
Appearing for the Respondent: Vilson Natal Arruda Martins

Catchwords: Brazil – workers compensation – McDonald’s – manager obesity – required to consume products – meal break – mystery shoppers – compensation – liability

Facts: The appellant operated a McDonald’s franchise in Brazil. It employed the respondent as manager of one of its restaurants over a twelve year period. It was alleged that over this time his weight increased from around 70 kilograms (154 pounds) to 105 kilograms (231 pounds), by which time he was classed as obese. The respondent alleged that this was caused by the appellant’s policy of using “mystery shoppers” to assess the cleanliness, quality and management of its stores, which resulted in him needing to taste hamburgers, fries, soft drinks and ice cream regularly. He further alleged that, during meal breaks, the appellant’s employees were provided with a meal consisting of a burger, fries and soft drink which could not be exchanged for cash or food stamps. He further asserted that his work required long and irregular hours with inadequate rest breaks.

The respondent sought compensation from the appellant for his obesity. The claim was upheld at first instance and compensation was awarded of R40,000 (Brazilian Reals). The employer appealed.

Held: allowing the appeal in part and rejecting it in part –

1. Although genetic factors and a sedentary lifestyle were possible causes of obesity, this did not relieve the employer of liability.

2. While it was the worker’s responsibility to adopt a healthy diet, the conditions of his employment had forced him to consume the employer’s products.

3. The compensation awarded was properly to be reduced from R48,000.00 to R30,000.00. However, the appellant was required to assist the respondent to cover the costs of medical treatment aimed at weight reduction.

The court appears to have had regard to the fact that master brewers and winemakers are regularly compensated for developing alcoholism as a result of their duties.

It appears dissenting judgments were entered but details are not available.

Judgment

A copy of the Court’s written reasons cannot be located. Details in this report were obtained from the press office of the Court, the website of the firm Barça & Associates, the accounts in the journals Zero Hora and Economia & Negócios, and the blogs Nosso Povo, and Blog da Saúde. Translations by Google.

An appeal was considered but appears not to have been pursued.