The Benefits Review Board recently reminded employers about the difficulty in taking advantage of Section 3(c) of the Act, which disallows compensation when the employee’s injury occurs solely through the employee’s willful intent to cause the injury.
In Jarrett v. CP&O, LLC, 51 BRBS 41; BRB No. 17-0384 (12/3/17), the administrative law judge, after hearing the witnesses and evaluating the evidence, accepted the employer’s argument that a shuttle truck driver willfully caused his own injury by placing his truck in a position to be struck by another truck. The accident occurred early in the morning in a staging area of a port. The claimant attempted to drive his truck around another truck that was parked in proper position. The other truck started to roll forward, and even though the claimant apparently was driving at an excessive rate of speed, the rear of his truck struck the front of the other truck. A port authority police officer investigated the incident and determined it was an “accident” attributable to the fault of both drivers. After the accident, the employer terminated the driver for having a third accident while operating a work vehicle.
At trial, the ALJ gave the claimant the benefit of the Section 20(d) presumption that he did not willfully intend to injure himself, but found that the employer rebutted the presumption. On this basis, the ALJ denied the claim. The ALJ found that the claimant “deliberately and knowingly” cut off the other truck, despite years of experience driving a shuttle truck without having a collision. The ALJ also noted the claimant’s excessive speed at the time of the accident and that the claimant had extensive training operating trucks. The ALJ also believed that the claimant was an “experienced” litigant because he had filed four previous claims and knew he could benefit from the aggravation rule.
The Benefits Review Board reversed the ALJ’s decision “as a matter of law.” The Board found that the employer failed to rebut the Section 20(d) presumption because no direct evidence existed that the claimant intended to injure himself. Finding no direct evidence of a willful intent to cause the injury, the Board proceeded to characterize the circumstantial evidence as suggesting only negligent conduct. The Board observed that negligent conduct does not preclude recovery under Section 3(c) of the Act. The Board restated precedent that the purpose of the Act “is inconsistent with any notion that recovery is barred by misconduct which amounts to no more than temporary lapse from duty, conduct immediately irrelevant to the job, contributory negligence, fault, [or] illegality.”
The Board also criticized the ALJ’s belief that the claimant’s years of experience implied an intent to cause the accident, noting that the evidence provided that the claimant was terminated for having multiple accidents while operating a truck. Additionally, according to the Board, the police officer’s determination that both drivers caused the accident further militated against finding that the claimant willfully intended to injure himself. Finally, the Board criticized the ALJ’s reliance on the fact that the claimant had filed prior claims. The Board stated that the “mere fact that claimant is aware of his right to seek compensation and exercised that right by filing claims is not evidence of intent to injure himself.” As a result of its findings, the Board reversed the ALJ’s denial of the claim and remanded the claim for further consideration.
© 2018 Ira J. Rosenzweig