In today’s post, I’m going to discuss video games. It probably seems a little odd to discuss games in connection with a Defense Base Act claim. In my opinion, it’s odd too. But, because I have recently fielded some inane arguments about the effect of video games on a claimant with a psychological injury, I thought it best to address the topic.
And, believe it or not, this is not the first time I have heard this argument. Back when I used to be a defense attorney, the video game argument was batted around as a potential defense. Ultimately, the argument was dismissed—too laughable to pursue.
The argument is fairly simple to grasp. An insurance carrier argues that its liability for benefits has been severed because video games are a stressor that aggravated the injured worker’s psychological injury or created a new psychological injury. Essentially, the carrier is using the intervening incident doctrine to try and escape liability.
What is the intervening incident doctrine?
Under the intervening incident doctrine, a second injury “adduced by the employee’s own . . . carelessness” is not compensable because the injury was not unavoidable. See Cyr v. Crescent Wharf & Warehouse, 211 F.2d 454, 457 (9th Cir. 1954); Cf. Jones v. Dir., OWCP, 976 F.2d 1106 (7th Cir. 1992) (questioning whether a second injury overpowered and nullified the disabling effects of the first injury); Cf. Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046 (5th Cir. 1983) (denying coverage of drug addiction treatment where the claimant intentionally withheld information about prior addiction). Nonetheless, “cases do not hold that an ‘intervening cause’ cuts off employer’s liability for disability and medical benefits attributable to the original work injury.” See Callender v. Dept. of the Navy/MWR, BRB No. 11-0696, 2012 WL 3276667, *5 (Ben. Rev. Bd. Jul. 24, 2012). An employer “remains liable for any natural progression of the work injury, as well as for any ‘unavoidable’ results of the work injury, notwithstanding the occurrence of an intervening incident.” Id. The fundamental question is whether the claimant took reasonable precautions to guard himself against re-injury. Marsala v. Triple A South, 14 BRBS 39, 43 (1981).
What does this mean? It means that an injured worker who is injured while doing something so asinine or careless may sever an insurance carrier’s liability. Here are some examples:
- Failing to disclose a prior drug addiction problem. See Bludworth Shipyard, 100 F.2d at 1051-52.
- Falling off a roof while attempting to repair a home TV antenna and suffering a second leg injury. Grumbley v. Eastern Associated Terminals Co., 9 BRBS 650 (1979).
Perhaps more importantly, here are some examples of events which were not deemed intervening incidents:
- Sitting for excessive periods of time. See Callender, 2012 WL 3276667 at *5.
- Car accidents. See Callender, 2012 WL 3276667 at *6. See also Coleman v. Bollinger Shipyard, Inc., 2003 WL 26099782, *7 (BRB 2003).
- Medical malpractice or failed surgery. Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 33, 1988 WL 232744, *3 (BRB 1988).
Where do you think video games fall within this spectrum? Closer to a car accident or falling off a roof? Frankly, I don’t think that playing video games has a place on the intervening incident spectrum at all.
Ask the experts:
I suppose the easiest way to handle the video game issue is to simply ask the experts. When deposing the doctors, ask them if playing video games can be a stressor for the claimant. Remember, the stressor needs to be claimant-specific. There isn’t a one-stop-shop for injuries. Not every claimant will share the exact same symptoms, stressors, or PTSD treatment trajectory.