Secondhand smoke could be workers comp case in Missouri; despite prank, California court rejects lawsuit
Secondhand smoke is entering the workers’ compensation arena–by backing its way into law.
According to a Feb. 9 brief in the Southeast Missourian, “The [state] Senate approved final amendments to a bill revamping the state’s workers’ compensation programs on Wednesday that could allow for claims to be made for illnesses arising from exposure to secondhand smoke.”
Toxic exposure better suited to court system
What’s strange is is that the provision is an exception to broader legislation that stops workers from making workers’ comp claims over “prolonged exposure to chemicals or inhalants.” State Sen. Jack Goodman (R-Mt. Vernon) sponsored the bill, contending that toxic exposure cases are better served by the court system because of the potentially long period before manifestation of symptoms.
A Feb. 9 post at missourinet.com (which also includes a link to an audio file of floor debate on the bill) says that “One issue is whether the employee knows that there are inherent dangers in the job should be able to sue the employer if those dangers make them ill or lead to their death. Goodman says the workers’ compensation remedy is ‘adequate’ for employees who assume the risks of their jobs.”
Senator: Some cases should not be restricted to workers’ comp relief
But the senator also recognizes that some cases should not be limited to workers’ comp restrictions: “. . . Goodman also says workers whose employers knowingly do not keep employees safe should be able to demand compensation outside of the worker’s comp system. He cites a series of lawsuits filed by employees of a southwest Missouri popcorn company who claimed the company allowed substances in the factory air that eventually led to severe lung problems.”
State Sen. Robert Schaaf (R-St. Joseph) pushed the amendment to retain secondhand smoke provisions in the workers’ comp system.
Workers’ comp & exclusive relief
On December 19, we wrote about situations in which an injured worker might be able to sue a co-worker or another third party–but still not be able to bring a personal injury suit against the insured employer. However, a case involving a prank that resulted in injury has been limited to the workers’ comp system by a California appellate court.
According to a Feb. 10 account of a ruling issued a few days earlier, “In California, a worker injured by a coworker’s prank is limited by the exclusive remedy provision of the workers’ compensation law.”
Prank with cane leads to knee injury
A copy of the ruling is at Leagle.com, including the following summary, about Raymond Garcia, who was hurt in August 2008 while on the job for the Los Angeles Department of Water and Power (DWP):
Appellant was a DWP employee. His complaint, filed on August 21, 2009, alleged that on August 22, 2008, he was recovering from a knee injury which necessitated the use of a cane. He was trying to wean himself from the cane, and while at work that day he left it behind when he walked away from his desk for a brief errand. When he next used the cane, he lunged forward and reinjured his knee. He then noticed that the cane had been shortened.
Plaintiff suspected that one of three employees (Vargas, Johnson, and Troschak) had shortened the cane. All were Electric Trouble Dispatches (EDTs) who were seated near him. He told the EDTs that his knee hurt, that the cane-shortening “wasn’t funny,” and that “you guys should not mess with anyone’s handicap aids . . . because it’s not funny.” None of them said anything.
On August 24, plaintiff was again at work. He asked Vargas who had shortened the cane. Vargas answered that he was not the culprit, and that he knew who had done it but could not tell. Plaintiff had a similar conversation with Johnson. On August 27, 2008, plaintiff asked Troschak, who admitted that he had shortened the cane. He apologized and asked whether he was in trouble. Plaintiff responded that he did not know, but that if he continued to feel pain in his knee, he would seek medical attention.
Suit alleges DWP created atmosphere of horseplay
Garcia’s suit named DPW and Troschak as defendants, charging that Troschak was on duty and that the DWP “condoned pranks, jokes, and horseplay and failed to deal appropriately with pranks, jokes, and horseplay, creating the atmosphere which allowed Troschak to believe that he could engage in the subject behavior.”
Specific complaints included:
- assault, battery, intentional infliction of emotional distress, and vicarious liability and respondeat superior;
- causes of action against the DWP titled hostile environment, failure to prevent harassment under Government Code section 12940, subdivision (k), negligent hiring, training, retention, and supervision, discrimination based on disability in violation of the Labor Code, Civil Code section 51.9, and the Fair Employment and Housing Act, and violation of the Fair Employment and Housing Act.
Defendants demurred, citing doctrine of exclusivity
However, California law still allows a certain kind of pleading known as a demurrer, which can accomplish what in other states requires a motion to dismiss. In this case, the defendants demurred, citing several grounds, but basically asserting that “that all causes of action were barred by the doctrine of workers’ compensation exclusivity.” The trial court agreed, sustaining the demurrer, “without leave to amend.” In other words, the suit was tossed out, leaving Garcia the chance to appeal but not to amend his complaint.
‘No matter how rough or thoughtless’
The appeals court denied every argument of the complaint, notably finding that Troschak was acting in the scope of employment, which was acknowledged in the complaint itself. Other highlights include “horseplay injuries to both participating and nonparticipating employees are within the course and scope of employment when the employer condones the horseplay,” and “This is horseplay, no matter how rough or thoughtless, or even cruel, and is part of the workers’ compensation bargain.”
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Frequently enough, a worker’s compensation case may be so complex as to demand legal representation. However, sometimes what seems like a cut-and-dried situation to an injured worker may result in a smaller award than envisioned–or even a denial. Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:
