Profit v. HRT Holdings d/b/a Doubletree Suites and CNA Claim Plus, et. al.

Profit v. HRT Holdings d/b/a Doubletree Suites and CNA Claim Plus, et. al., No. WC21-6438 (W.C.C.A. April 14, 2022).

The Employee was attacked by an assailant while working at a Doubletree Hotel. He was attacked with a sharpened military-style entrenching shovel after the assailant had checked into the employer’s hotel.

The Employee had known the assailant for a few years and had worked together previously. They were also “friends” on social media, had each other in cell phone contacts, and had attended a social gathering together. The Employee testified they were not friends, but rather associates. The assailant had a history behaviors suggestive mental illness. Specifically, the assailant’s uncle passed away from heart disease in the spring of 2018 and the assailant falsely believed the Employee had murdered his uncle.

On the date of injury the Employee was working as a houseman which included stocking supplies. During this time, his daughter called to indicate the assailant had been by looking for him and she told him he was at work. When the assailant arrived at the hotel, he had tried to use the Employee’s discount code, and then asked to speak to the Employee. He then checked into the hotel.

The Employee was working four floors down from the assailant’s floor. The assailant went to the second floor and when the Employee turned his back he was hit in the back of the head; he was then attacked further striking his arms and causing injuries to both hands. The assailant was arrested.

The Employee sustained permanent damage to his hands among other injuries. The Employee alleged this to be a work injury and the employer and insurer denied primary liability. This ultimately led to a claim petition. Ultimately at hearing the issues was whether the intentional acts exclusion barred the Employee’s claims.

The Employee had argued in closing arguments that the employer failed to provide surveillance and the omission constituted spoliation of evidence. The compensation judge found the injuries were caused by a third person, for personal reasons, not because of employment and the claim was barred. The Employee appealed.

The Employee argued the judge erred to address the question of spoliation of surveillance video evidence and made erroneous legal conclusions regarding the intentional act exclusion because it was based on information that was incomplete due to the spoliation of evidence.

The WCCA indicated spoliation of evidence is destruction of evidence that provides an advantaged to the party that destroyed it; there was not proof that the video was lost, damaged, or destroyed, and further if it existed or why it was not provided.

Further, the theory that the video would show negligence on part of the hotel staff does not matter as the workers’ compensation act provided a no-fault system. Lastly, the employee’s argument the employer should be sanctioned for failure to respond to discovery is unpersuasive.

The intentional acts exclusion indicates that a work injury “does not include any injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of employment”.

The compensation judge reached his conclusion by assessing the sequence of events, statements of witnesses, and testimony of the employee. the Employee argued the lack of rational basis made this compensable; however that case law is different because those occurred by unknown assailants with unknown motives for assault. The WCCA affirmed the compensation judge’s findings.