Grinberg: Are Stray Bullets Compensable?

Thursday, June 29, 2023 | 0

Time for a somewhat literal blast from the past. This one is from September of 1947, the case of McPhail v. The Austin Company.

Gregory Grinberg

Applicant was struck by a stray bullet under the armpit while working as a carpenter in Sacramento. The source of the bullet was never discovered. There was no evidence of any bad feelings or hostility among the employees, but there was evidence that there were gun raffles over the last few months for the employees. Surprisingly, regular gun raffles are rarely advertised as benefits offered to employees nowadays. 

The commission held that the injury was AOE/COE.

Now, had applicant died as a result of the injury, it's likely that the mysterious death presumption would have applied. After all, if the employee’s death occurs at or near the place of employment, then an inference of compensability is typically found unless there is some other, nonindustrial explanation for the death.

But if the applicant did not die and could be a witness regarding the facts, there is no reason to apply the mysterious death doctrine.

Picture a carpenter working on the third floor of a building when he is suddenly struck by a bullet, and he lives to tell the tale. No likely suspects, no explanations. How are we to determine whether this is an industrial injury? The bullet could have struck a passerby instead just as easily, no?

For example, in the case of Rodgers v. WCAB, an employee robbed in the employer’s parking lot on her way back from a lunch break-bank trip was ordered to take nothing, as the court reasoned that the injury was not industrial because the cause of the robbery was formed independent of anything having to do with work.

By contrast, in the case of Parks v. WCAB, applicant was attacked very close to the employer-provided parking lot as she was boxed in by children crossing the street and other cars behind her. The WCAB held that children crossing in that area presented a special risk that was not visited on the general public.

So, are stray bullets a risk to which the general public is exposed, or was there something special about working as a carpenter on the third floor of a building? I urge readers not to conduct any studies involving shooting randomly in the air to see how many bullets strike people at work vs. people walking on the street. This question is truly best left in the realm of theory and rhetoric.

Could the employer have conducted a study of stray bullet victims in the five years prior to the date of injury to see how often random pedestrians and drivers are struck as opposed to carpenters on the third floor of a building? Try googling “stray bullet” and “Oakland” as just one example.

Gregory Grinberg is managing partner of the Tobin Lucks office in Burlingame and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.