Free Fallin’… and How the Forfeiture Defense “Fell” on Its Face
A little salute to Tom Petty today, and a harsh look at the Section 2353 forfeiture defense based on failure to use a safety device. Let’s start with the observation that the Claimant was wearing the device (a three-point safety harness), but had failed to secure it properly. Come on now, doesn’t this already sound more like negligence than forfeiture?
In Duglas Antunez-Benitez v. Asplundh Tree Experts, the claimant, a tree trimmer, was topping a tree and fell 25 feet to the ground because he was not “100% tied-off” — a violation of the company’s safety policy, After the fall, the claimant was thrown in a pick up truck by his co-workers, and taken to the hospital BUT not before his supervisor could take off his company shirt and direct him to tell the doctors that he was not injured on the job.
The employer did not dispute that the claimant was injured in a compensable work accident but argued that the claimant forfeited his right to workers’ compensation benefits because he was not 100% tied off using the safety lines provided to him in accordance with company policy, and therefore, his injuries arose from his willful failure or refusal to use a reasonable safety appliance provided for an employee and/or deliberate and reckless indifference to danger.
In it’s 56-page Decision, the Board first thoroughly analyzes the language in Section 2353(b). Then, the Board turns to precedent, specifically Lobdell Car Wheel Co. v. Subielski, 125 A. 462 (Del. Super. Ct. Mar. 5, 1924), Stewart v. Oliver B. Cannon & Son, Inc., 551 A.2d 818 (Del. Super. Ct. June 22, 1988), and Pierre v. Purdue, 2021 WL 3559430 (Del. Super. Ct. Aug. 12, 2021), determining that in order to successfully invoke the forfeiture provision under Section 2353(b), the employer must prove by a preponderance of the evidence that the claimant violated or disobeyed the company policy/procedure in terms of a willful, intentional and deliberate failure or refusal to use the employer-provided safety device properly and securely; or in the alternative, the employer must prove that the claimant’s violation was the “exhibition of a deliberate and reckless indifference to danger as opposed to ‘instinctive or thoughtless’ action.”
Ultimately, the Board held that the employer failed to meet its burden to show that the Claimant forfeited his benefits under Section 2353(b). In reaching its conclusion, the Board asked the following questions:
Did the claimant violate the company’s 100% tie-off rule?
YES — the claimant concede that he was not 100% tied-off because if he was, then one of the three safety lines would have caught his fall.
Did the claimant understand the seriousness of the consequences of the violation?
YES — the claimant was well aware of the importance of the 100% tie-off safety rule and the consequences that could result from violate it.
Did the claimant willfully and intentionally fail or refuse to use the main climbing line and/or was he deliberately and recklessly indifferent to danger in violating the 100% tie-off rule?
NO —the claimant’s failures were not willful, deliberate or reckless and instead related to “spur-of-the-moment thoughtlessness or oversight.” Further, the totality of the testimony supported that there was a rushed or somewhat pressured atmosphere of getting the work done by the employer which likely contributed to the claimant’s thoughtlessness.
To be candid, I was worried about the future of forfeiture defenses following the Pierre decision for us on the claimant-side, but this decision gives me some hope.☺
Best,
Caroline & Cassandra
