May 29, 2008 : John P. Kickbusch Wins Non-Compensability Ruling

Cherry Hill associate John P. Kickbusch won a ruling of non-compensability in a New Jersey workers compensation case. The case involved an incident on February 4, 2006 in which the petitioner and a co-employee (his shift supervisor) had a verbal altercation over a work related issue; specifically how to cut a roll of paper. The petitioner and this individual had a history of animosity and both had previously been suspended as a result of a prior incident.

The petitioner in his frustration over the confrontation punched a roll of paper weighing several tons, fracturing his hand. The case was denied from the outset as non-compensable. Mr. Kickbusch took the position that the petitioner’s injury was self-inflicted and thus not compensable under section 7 of the Statute. He also contended that the hand fracture did not occur at work as it was un-witnessed. The petitioner took the position that since the injury resulted from frustration over a work related argument, the resulting injury was compensable.

The Judge bifurcated the case for trial on compensability. No medical testimony was offered. There were  two issues at trial. First, whether the petitioner truly fractured his hand at work as it was an un-witnessed incident and the petitioner proceeded to work the rest of his shift, and he worked for the next several days before seeking treatment at the emergency room.  Second, even if the petitioner injured his hand as indicated, was the scenario non-compensable as a self-inflicted act?  Mr. Kickbusch contended that the petitioner’s injury arose out of his own propensity for temper flare-ups and was not an “accident” within the meaning of the Statute and thus benefits must be denied. 

The Judge rejected petitioner’s position. In rendering his decision, the Judge noted that he did not find either witness for the petitioner credible. The Judge specifically noted that the petitioner had over 20 minutes to “cool down” after the argument and only punched the roll of paper after he spoke with a member of management investigating the incident. The Judge concluded  that even taking the facts in the light most favorable to the petitioner, that the injury was not compensable as it was self-inflicted and it could not reasonably be deemed “work related.”

File Under: Results, Workers' Compensation