OCCUPATIONAL HAZARD

MAN INJURED WHILE PLAYING HACKY SACK WINS WORKERS' COMPENSATION BENEFITS

On October 6, 1992, Peoria ironworker Sabino Jayo Jr. blew out his knee while playing hacky sack in the white sand dunes of New Mexico.

Two and one-half years and piles of paperwork later, the Arizona Court of Appeals says Jayo was entitled to workers' compensation benefits as a result of his injury.

The appellate court's 3-0 opinion, issued February 3, is a head-scratcher: A guy can collect even if he gets hurt kicking a little beanbag around during slack time? Say what?

But a study of the Jayo case reveals a quirky series of events that makes the court's ruling far more palatable than at first blush.

The hacky sack injury occurred on the desolate White Sands Missile Range, where Jayo was working in 1992 as a foreman for Flagstaff Tyler Joint Ventures.

The firm had subcontracted with the military to install a large-blast thermo simulator at the remote base. Jayo and many of his co-workers rented homes in Socorro--about 35 miles from the construction site--for the duration of the project.

The crew normally worked eight-hour shifts without interruption. But every so often, the military would order Flagstaff Tyler's 40 to 50 workers to leave the immediate area for a few hours to allow for missile testing.

That fact is crucial to the events that led to Jayo's injury.
The workers were free to go where they wanted during the slack time. (They weren't paid, by the way, during their enforced break.)

Options in the isolated locale were few. About ten miles away, for example, the tiny village of San Antonio has a little bar and restaurant.

But testimony showed that most of the workers, including Jayo, gathered a few miles from the site at a cafeteria/recreation area provided by the military. There, the workers passed the time in a variety of ways.

"I liked hacky sack myself," Jayo testified at a workers' comp hearing in April 1993. "I'm not very good at basketball. I use it to work out a little bit. It keeps me somewhat limber."

On the day in question, Jayo and four buddies were kicking the bag around during the midmorning military "lockout." Somehow, Jayo's left leg got twisted during the activity and he crumpled to the asphalt in pain.

"Leg popped," he wrote the following week on a claim for benefits. "Couldn't walk on it for about an hour. . . . Then went back to work."

Jayo told one of his bosses that night that his knee was aching. When it didn't improve, he visited a clinic. Doctors diagnosed that Jayo had torn cartilage and ligaments, and recommended reconstructive surgery.

But in November 1992, the state Industrial Commission denied Jayo's claim for benefits. He appealed, and administrative law judge Walter Gallaher heard the case on April 16, 1993.

No one was saying that Jayo had exaggerated the extent of his injury. The only issue before Gallaher was whether, under Arizona law, the injury had "arose out of" his employment and that it had occurred "in the course of" his work.

Christopher Anderson, an attorney representing the commission during the appeal, insisted that Jayo hadn't been ordered by his bosses to play hacky sack. Flagstaff Tyler had "no control" over its employees' actions during the slack time, Anderson argued, and shouldn't have to pick up the tab for Jayo's injury. "Are you aware of [hacky sack] being a common practice for ironworkers?" Anderson asked Bob Keith, one of Flagstaff Tyler's owners, during the hearing.

"No, I'm not," Keith replied.
Jayo's attorney, Alan Schiffman, argued his client had been "subjected to an enforced lull in his work when the U.S. government decided to shoot off a six-pack of missiles. . . . He did not abandon his job."

But law judge Gallaher sided with the state, rejecting Jayo's claim and awarding him nothing. Without the benefits, Jayo couldn't afford to have knee surgery, Schiffman says, and returned to work with a brace.

Schiffman took the case to the Arizona Court of Appeals.
"Lots of people travel to sites far from their homes and get injured in situations somewhat similar to this," the attorney explains. "In terms of the law, this case touched on some new ground, and we thought it was worth pursuing."

The appellate court agreed.
"The job site was in a remote area and the work was regularly interrupted by lockouts and enforced periods of idleness," Judge E.G. Noyes Jr. wrote in his opinion. "[Jayo] could leave the range during lockouts, but he and his peers had no practical alternative . . . other than standing by, as a group, waiting to get back on the job as soon as the lockout ended."

The judge continued: "[Jayo] was an ironworker, a trade that requires more physical activity and agility than many. A reasonable employer would expect that a crew of ironworkers--when forced into two hours of midshift idleness--might be active and play games such as hacky sack."

Unfortunately, Sabino Jayo wasn't around to hear the good news of his appeal. On May 10, 1994, he was crushed to death at a construction site in Yuma. He was 32.

 
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