Were Burns the Result of Work Risk or Personal Risk?
A worker for Wright Tree Service filled up a chainsaw with gasoline for the foreman. When he picked up the chain saw to hand it to the foreman, gas leaked out of the cap and spilled onto his shirt.
After the spill, the foreman told the worker that he had a clean shirt in his work truck that the worker could put on. The foreman told the worker that he could take a short break until the foreman was done, and then they could walk back to the truck together.
While waiting for the foreman, the worker lit a cigarette. Wright permitted workers to smoke while waiting for tree limbs to drop, and many of them did. While lighting his cigarette, the worker’s shirt caught on fire.
After the worker put out the fire, the foreman applied first aid to his burns and took him to the emergency room. The worker’s burns required a skin graft, and he had scarring on his thigh, torso, shoulder, and hip.
The worker sought workers’ compensation benefits. The administrative law judge denied the claim, finding that smoking was a risk personal to the worker, so his injuries did not arise out of and in the course of his employment.
The Workers’ Compensation Appeals Board reversed the ALJ’s decision, concluding that the worker’s injury had a causal connection to his employment. Wright appealed.
Was the board correct in finding that the worker’s injury was compensable?
- A. No. The worker’s smoking rather than spilling gasoline was the cause of his accident, and smoking is a personal risk.
- B. Yes. The risk of gasoline spilling on the worker’s shirt and later catching fire was a risk associated with his work.
- C. No. Injuries occurring during smoke breaks are not compensable.
How the Court Ruled
A is incorrect. The court explained that catching fire is a risk associated with working with flammable liquids. Even though the worker’s burns did not occur at the moment gasoline spilled on his shirt, the injury still arose out of a risk distinctly associated with his job.
C is incorrect. The court pointed out that the board previously found in several cases that injuries that occurred during smoke breaks are compensable. The board held that smoking and smoke breaks fall within the personal comfort doctrine. Here, the worker was on an authorized break on the clock and was allowed to smoke on the job.
B is correct. In Gould v. Wright Tree Service, Inc., No. 114,482 (Kan. Ct. App. 05/13/16, unpublished), the Kansas Court of Appeals held that the worker was entitled to benefits for his burn injuries.
The court concluded that the worker’s actions were causally connected to his job, and he was working at the time of his injury, so his injuries were compensable.
The court also found that the worker’s injury arose out of and in the course of his employment. The worker was required to work with flammable liquids as part of his employment, and he was on an authorized short break, although still on the clock, at the time the injury occurred. The court also found that the worker did not recklessly violate Wright’s fire-prevention policy.
Editor’s note: This feature is not intended as instructional material or to replace legal advice.
Workers’ Comp Docket
Limit on TTD Creates Unconstitutional Denial of Access to Courts
Westphal v. City of St. Petersburg, et al., No. SC13-1930 (Fla. 06/09/16)
Ruling: The Florida Supreme Court held that the workers’ compensation law that cuts off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but has not reached maximum medical improvement is unconstitutional.
What it means: In Florida, the workers’ compensation law that cuts off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but has not reached maximum medical improvement is unconstitutional.
Summary: A firefighter for the city of St. Petersburg suffered a severe lower back injury while lifting heavy furniture in the course of fighting a fire. Shortly after his injury, he began receiving temporary total disability benefits and medical benefits.
The firefighter did not reach maximum medical improvement before the expiration of the 104-week limitation on TTD benefits. At the expiration of TTD benefits, he was still incapable of working, based on the advice of doctors and vocational experts. He sought further temporary disability or permanent total disability benefits.
The judge of compensation claims denied the claim. The appellate court held that a worker who is totally disabled as a result of a work accident and remains totally disabled at the end of his eligibility for TTD benefits is deemed to be at MMI and is eligible to assert a claim for PTD benefits.
The Florida Supreme Court quashed the appellate court’s decision and held that the workers’ compensation law that cuts off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but has not reached maximum medical improvement is unconstitutional.
The court found that the appellate court’s decision was an impermissible judicial rewrite of the statute. In finding the statute unconstitutional, the court explained that the law did not just reduce the benefits the firefighter would receive, but completely cut off his ability to receive benefits even though he remained disabled and was receiving treatment.
As there was no way to know when he would reach MMI, the firefighter was left without benefits for an indefinite amount of time. The court concluded that the 104-week limitation, as applied to a worker who fell into the “statutory gap” at the end of the benefits, did not provide a reasonable alternative to a suit against the employer.
The court found that the proper remedy was the revival of the previous version of the statute that provided a limitation of 260 weeks of TTD benefits. The court rejected a concurring judge’s assertion that this remedy still allowed for the possibility of a statutory gap.
Worker Can’t Connect Breast Abscesses to Manure Exposure
Leib v. State of Wyoming, No. S-15-0235 (Wyo. 05/20/16)
Ruling: The Wyoming Supreme Court held that a worker was not entitled to benefits for her breast abscesses.
What it means: In Wyoming, a temporal connection between a work-related incident and an infection is not necessarily sufficient to establish causation.
Summary: A maintenance worker for Laramie County Community College was required to work with dirt that was mixed with untreated manure from livestock kept on campus and from traveling circus animals.
She experienced pain and swelling in her breasts, and surgery was performed to drain abscesses. A culture collected following her surgery indicated that she had a peptostreptococcus bacterial infection. The worker filed a claim for workers’ compensation benefits. The Wyoming Supreme Court held that she was not entitled to benefits.
The court found that the worker failed to establish causation. The court pointed out that a temporal connection between a work-related incident and an infection is not necessarily sufficient to establish causation.
Where a medical question is complex, medical testimony should not be ignored. Here, the medical experts disagreed about the cause of the worker’s breast abscesses. The worker’s medical expert testified that her condition was caused by a bacterial infection originating from the dirt and manure mixture she used at work.
The worker’s medical expert also indicated other possible sources of the worker’s infection, including her choice of clothing and perspiration outside the workplace. The college’s medical expert opined that there was no relationship between the worker’s work and her infection. The college’s medical expert reasoned that the organisms found in the worker’s infections arise in a variety of settings and that her exposure to manure was very unlikely to result in the bacterial infection found in the culture of her abscesses.
The court noted that the dirt and manure mixture was never tested to determine its contents.
Positive Marijuana Tests Erase Employer’s Liability to Pay for Opioid Medication
Halcomb v. American Mining Co., et al., No. 2015-SC-000335-WC (Ky. 05/05/16)
Ruling: In an unpublished decision, the Kentucky Supreme Court held that an employer was no longer liable to pay for a worker’s narcotic medication prescription.
What it means: In Kentucky, an employer is no longer required to pay for an injured worker’s narcotic pain medication after the worker has positive drug tests that indicate marijuana use.
Summary: A worker for American Mining Co. suffered a work-related back, left-hip, and muscular injury. His treating physician prescribed him narcotic pain medication as part of his treatment.
American Mining requested for the physician to have the worker submit to random drug screens. The worker tested positive for THC, the active component of marijuana, on three occasions. The physician continued to prescribe the narcotic pain medication to the worker.
American Mining disputed the worker’s continued use of the narcotic. The Kentucky Supreme Court held that American Mining was no longer liable to pay for the worker’s narcotic medication.
The court found that American Mining established that the worker’s narcotics prescription was unreasonable and unnecessary. The worker contended that two subsequent clean drug screens showed that he was not self-medicating with marijuana and that that the prior failed drug screens were caused by secondhand marijuana smoke.
The court rejected the worker’s argument. A conclusion that the worker was using marijuana was supported by the three failed drug screens and the opinion of a doctor who stated that the failed drug screens indicated that the worker was actively using marijuana instead of being exposed to secondhand smoke.
Inability to Challenge Reasonableness of Attorney’s Fees Is Unconstitutional
Castellanos v. Next Door Co., et al., No. SC13-2082 (Fla. 04/28/16)
Ruling: The Florida Supreme Court held that the attorney’s fees schedule in the workers’ compensation law is unconstitutional.
What it means: In Florida, the mandatory fee schedule for attorney’s fees in workers’ compensation cases is unconstitutional.
Summary: A press break operator for Next Door Co. suffered an injury during the course of his employment. Through the assistance of his attorney, the operator prevailed in his workers’ compensation claim.
Because the workers’ compensation law limits a worker’s ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the attorney’s fees awarded to the operator’s attorney amounted to $1.53 per hour for 107 hours of work. The operator argued that the mandatory fee schedule for attorney’s fees was unconstitutional. The Florida Supreme Court held that the fee schedule is unconstitutional.
The court explained that the legislature removed any consideration of reasonableness and removed the judge’s discretion to alter the attorney’s fees award in cases where the sliding scale obtained results that were inadequate or excessive. The court explained that the inability of a worker to challenge the reasonableness of the attorney’s fees award is a due process issue.
One of the legislature’s justifications for the fee schedule was to standardize fees. However, the court found that it did so in a manner that lacked any relationship to the amount of time and effort expended by the attorney.
The court explained that excessive fees can still result under the fee schedule. Also, courts have operated under the view that the fee schedule was “merely a starting point.” Without the likelihood of an adequate attorney’s fee award, there is little disincentive for a carrier to deny benefits or raise multiple defenses.
The court found that the elimination of any requirement that the fee be reasonable eviscerated the purpose of the attorney’s fees provision. The court concluded that the statute violated the state and federal constitutions.
Dissenting judges opined that the Constitution does not require the workers’ compensation scheme to include reasonable attorney’s fees.
‘Harsh Result’ Doesn’t Create Exception to Statute of Limitations
Bell v. Gilder Timber Co., et al., No. A16A0300 (Ga. Ct. App. 05/04/16)
Ruling: The Georgia Court of Appeals held that a worker’s claim for permanent partial disability benefits was barred by the statute of limitations.
What it means: In Georgia, a worker can file for permanent partial disability benefits no more than four years from the last payment of temporary total disability benefits or temporary partial disability benefits.
Summary: In 1992, a worker for Gilder Timber Co. sustained a compensable injury to his neck. As a result, he underwent cervical fusion surgery. He received temporary total disability benefits for four months until he returned to work.
The worker continued to experience neck pain and worked until he retired in 2009. In 2013, Gilder paid for the worker’s second surgery, which was related to the 1992 injury. In 2014, he sought permanent partial disability benefits.
A Georgia statute states that a worker can file for PPD benefits no more than four years from the last payment of TTD benefits or temporary partial disability benefits. The Georgia Court of Appeals held that the worker’s claim was barred by the statute of limitations.
Recognizing that the application of the statute of limitations led to a “harsh result,” the court declined to create an exception to the statute of limitations. The court found that the statute was clear and unambiguous, and its ordinary meaning was that it barred claims for PPD benefits made more than four years from the last payment of TTD or PTD benefits.
The court noted that the worker presented “a compelling policy argument as to why an exception should be created,” but that his arguments should be brought before the legislature.
Worker Not Entitled to Have Family Present During IME
Finke v. Comair, Inc., et al., No. 2014-CA-000624-WC (Ky. Ct. App. 04/29/16)
Ruling: The Kentucky Court of Appeals held that a flight attendant was not entitled to benefits during the period of her noncompliance with an independent medical examination.
What it means: In Kentucky, an injured worker does not have an unfettered right to have an immediate family member present during an IME.
Summary: A flight attendant for Comair sustained work-related injuries to her right hand and shoulder. There was a dispute regarding the compensability of the flight attendant’s right-shoulder condition and proposed surgery.
At the request of Comair, the flight attendant appeared for an independent medical examination. However, the IME physician refused to perform the IME because the flight attendant would not enter the examining room without her father present.
The flight attendant also refused to fill out the IME physician’s questionnaire regarding her medical history and the work injury.
Later, the flight attendant was examined by another IME physician who allowed her father to be present during the examination. Subsequently, the flight attendant appeared for another IME, but the physician refused to proceed with her father present.
Comair sought to terminate the flight attendant’s benefits. The Kentucky Court of Appeals held that the flight attendant was not entitled to benefits during the period of her noncompliance with the IME.
The court explained that under the law, an injured worker has the right to have a duly qualified physician or surgeon designated and paid by herself present at an IME.
The law does not give a worker an unfettered right to have another person, including a family member, present. The court found that in this case, the flight attendant did not properly present herself for an IME.
The court noted that had the flight attendant presented the administrative law judge with a basis to support her position, such as a religious exception, it would have been appropriate for the ALJ to order that any IME be conducted with a male family member present.
Employer Not Required to Honor Vague Accommodation Requests
Frazier-White v. Gee, No. 1512199 (11th Cir. 04/07/16)
Ruling: The 11th U.S. Circuit Court of Appeals affirmed a grant of summary judgment to an employer on an officer’s claims under ADA Title I. The 11th Circuit held that the officer did not present sufficient evidence to support her failure-to-accommodate claim.
What it means: When an employer’s hiring process is governed by civil service rules, it is not required to violate those rules in order to accommodate an employee.
Summary: An officer with a sheriff’s department injured her arm at work and went on light-duty status. Sheriff’s employees were allowed 270 days of light duty before undergoing a medical hearing to determine whether they could return to work in a reasonable time. If not, they were subject to termination.
As the officer approached the 270-day limit, the sheriff informed her that she was subject to termination if she did not return to full duty. She was encouraged to contact the office to discuss ADA accommodations or to apply for other positions in the department.
She requested an extension to “continue to receive care” so she could “get better and return to full duty.” She did not suggest any other accommodation and did not file applications for other positions. Civil service rules required her to submit an application before being hired for a position.
She reached the 270-day light-duty limit. At her medical hearing, she indicated that she could not estimate when she could return to full duty. When told that the hearing panel recommended termination, she asked if she could do “something else.” Noting that she had not applied for other positions, the panel terminated her. She sued the sheriff for failure to accommodate. The 11th U.S. Circuit Court of Appeals held that her requests for accommodation were unreasonable.
The officer requested an extension of time to “continue to receive care.” Noting that the ADA only covers people who can perform the essential functions of their jobs presently or in the immediate future, the court held that her request was unreasonable because she never specified a time frame in which she would be able to resume her full-duty position.
The court construed the officer’s question regarding whether she could do “something else” as a request for reassignment. Although the officer claimed that there were vacant positions available that “she believed she could have performed,” the court concluded that her request was unreasonable because she did not identify a specific full-duty vacant position she was qualified for or show that she requested reassignment to any such position.
Furthermore, she did not complete any applications for other positions, as required by civil service rules prior to being reassigned. Because the ADA does not require an employer to reassign an employee in violation of its governing civil service rules, the court held that this request for reassignment was unreasonable.
Workers’ Comp Docket
Fainting Unexplained? Then It Arose Out of Employment
Guill v. M. Squared Transportation, Inc., No. A157567 (Or. Ct. App. 04/06/16)
Ruling: The Oregon Court of Appeals held that a driver was entitled to compensation for his unexplained syncopal (fainting) episode.
What it means: In Oregon, a truly unexplained injury arises from the worker’s employment.
Summary: A truck driver suffered a syncopal episode while driving, and his truck ran into the highway barriers. The driver did not sustain any injury apart from the syncopal episode. The employer required him to seek medical services to diagnose the cause of his fainting episode.
The parties agreed that no cause was determined and that the syncopal episode was “truly unexplained.” The driver filed a claim for workers’ compensation benefits. The Oregon Court of Appeals held that he was entitled to benefits.
The parties did not dispute that the driver’s syncopal episode occurred in the course of his employment. The employer asserted that the syncopal episode was not an “injury” under the workers’ compensation law. The court rejected the argument. The driver experienced a harm that required diagnostic medical services.
The court also concluded that the driver’s syncopal episode arose out of his employment. The court said that where the cause of an injury cannot be determined, the injury is considered to result from a neutral risk.
Where the neutral risk is an unexplained injury without an ascertainable cause, courts consider whether the worker eliminated idiopathic causes for the unexplained injury. Here, the medical services the driver sought did not ascertain the source of the syncope. Therefore, his injury was truly unexplained and arose out of his employment.
Worker Wins Benefits for Injury After Being Startled by Animal
Kuzma v. U.S. Steel, 24 ILWCLB 34 (Ill. W.C. Comm. 2015)
Ruling: The Illinois Workers’ Compensation Commission held that a worker’s injury, sustained at work when he spun his body after being startled by a cat, arose out of his employment.
What it means: In Illinois, where the worker’s accident is caused by his reaction to a cat jumping out of a crate, the location of the accident is within the employer’s control, and evidence indicated that cats were a problem in the area, the worker’s injuries caused by the accident arise out of and in the course of his employment.
Summary: A worker worked for U.S. Steel in the maintenance services and utilities department. On the day of the accident, he was attempting to retrieve materials in the yard to build a storage crate. While reaching into a box, the worker was surprised by a cat that jumped out of a crate. He spun around and hit his left arm on the crate. He testified that stray and feral cats had been a problem in the area.
The yard was fenced and was the property of U.S. Steel. He was diagnosed and underwent surgery for a full thickness rotator cuff tear, left supraspinatus and upper infraspinatus tendons, and biceps tendinopathy.
The arbitrator found the worker’s accident arose out of and in the course of his employment with U.S. Steel. The location of the accident was completely under U.S. Steel’s control.
Also, the crate the worker was reaching into when he was injured was located outside in a fenced in area in which cats had been an issue. Therefore, the risk for the worker reaching into a crate and being surprised by an animal was higher than that faced by the general public.
The arbitrator awarded medical expenses, temporary total disability benefits, and permanent disability benefits for 15 percent loss of use of the left arm. The commission affirmed and adopted the decision of the arbitrator.
Farm Worker Entitled to Benefits for Attack by Coworker
Cruz v. Cutone Mushrooms, 31 PAWCLR 54 (Pa. W.C.A.B. 2015)
Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s finding that a mushroom picker was in the course and scope of his employment when he was stabbed by a coworker. The board also found no error in the WCJ’s reinstatement of the picker’s benefits when the picker, an unauthorized alien, obtained an employment authorization card and was able to work.
What it means: In Pennsylvania, where a worker while on break goes to a coworker’s residence located on the employer’s property to talk to a coworker who was upset with him regarding a work-related matter, the worker’s injuries sustained when the coworker attacks him arises out of and in the course of his employment.
Summary: The board affirmed the WCJ’s finding that a mushroom picker for Cutone Mushrooms was in the course and scope of his employment when he was stabbed by a coworker.
The picker credibly testified that he was working that day and took a break to get coffee. During that break, he went to see the coworker, who resided in housing that was located on the employer’s property.
The reason he went to see the coworker was related to his employment, as the coworker was upset that the picker had come into his area to pick mushrooms, and the picker wanted to be sure they did not have any problems at work. It was during that confrontation that the coworker stabbed the picker.
Based on this evidence, substantial support existed for the WCJ’s conclusion that the picker was in the course and scope of his employment when he was injured.
Also, the picker’s credible testimony sufficiently supported a finding that the encounter with the coworker was related to the picker’s work and was not the result of personal animosity.
The board also found no error in the WCJ’s reinstatement of the picker’s benefits as of the day the picker, an unauthorized alien, obtained an employment authorization card and was able to work.
As such, his loss of earning power was no longer caused by his immigration status, and the employer could not suspend the picker’s benefits without showing job availability.
Officer Fails to Secure Compensation for Work-Related Stress Disorder
Orange County Sheriffs Office, 116 NYWCLR 41 (N.Y. W.C.B., Panel 2016)
Ruling: The New York Workers’ Compensation Board affirmed the workers’ compensation law judge’s decision denying benefits to an investigator, who alleged he developed post-traumatic stress disorder due to highly stressful work situations.
What it means: In New York, medical reports attributing the worker’s psychiatric condition to the dissolution of his marriage rather than alleged stressful conditions while working will undermine his workers’ compensation claim for stress.
Summary: The board affirmed the WCLJ’s decision denying benefits to a senior investigator at the sheriff’s office, who alleged he developed post-traumatic stress disorder due to highly stressful work situations.
These situations included a 10-hour hostage stand-off with an armed suspect, his partner and the chief of police committing suicide, and no debriefing of any of these incidents.
He testified that he attempted suicide because of problems with his marriage and stress from work. He resigned after being arrested for stealing at a retail store.
The WCLJ found that when the investigator’s doctor was questioned with contemporaneous medical reports, which attributed the investigator’s condition to the dissolution of his marriage rather than anything that happened at work, the doctor admitted that such reports were wholly at odds with what the investigator told him.
The doctor’s causation opinion was based on the investigator’s testimony. As the medical records completely undermined the investigator’s testimony and assertions that his psychiatric problems were related to his alleged work stress, the board found that the investigator failed to prove a compensable disability.
No Comp for Mental Distress Caused by OSHA Violations
Arnold v. Charter Oak Health Center, Inc., No. HHDCV136046977S (Conn. Super. Ct. 04/01/16)
Ruling: The Connecticut Superior Court held that the exclusive remedy provision barred a manager’s suit alleging that she suffered from anxiety and emotional distress after she learned that she was exposed to tuberculosis at work.
What it means: In Connecticut, an employer’s Occupational Safety and Health Administration violations are not sufficient to show that the employer had an intent to create a situation that would cause a worker’s injury.
Summary: A lead outreach and enrollment case manager for Charter Oak Health Center was working when a patient came to the urgent care clinic for complaints of persistent vomiting for three weeks and the inability to take oral foods or liquids.
The patient was sent to a hospital where she was ultimately diagnosed with active tuberculosis and died. Charter Oak’s vice present of operations and director of nursing were informed about the patient’s diagnosis.
The director of nursing was assigned the responsibility of identifying who came into close proximity with the patient and testing them for potential tuberculosis exposure. The director of nursing mistakenly believed that the majority of employees did not need to be tested because they had participated in Charter Oak’s recent annual testing.
The next month, all employees were notified of the potential exposure to tuberculosis and advised to receive testing. The manager sued Charter Oak, alleging that she suffered from anxiety and emotional distress after she learned that she was exposed to tuberculosis.
She also claimed further anxiety and emotional distress when she discovered that Charter Oak withheld the fact that she had been exposed to tuberculosis. The Connecticut Superior Court held that the suit was barred by the exclusive remedy provision of the workers’ compensation law.
The court explained that because the manager’s emotional distress arose from an occupational disease her injuries fell within the workers’ compensation law’s definition of a “personal injury” and were compensable under workers’ compensation.
An exception to the exclusivity provision exists when the employer intentionally created a dangerous condition that made the worker’s injuries substantially certain to occur.
The court found that this exception did not apply. Charter Oak’s OSHA violations were insufficient to show that it had an intent to create a situation that would cause an employee injury. The court found that the manager merely speculated that Charter Oak intentionally withheld information.
The court said that at most the director of nursing and the vice president of operations negligently failed to test employees who had contact with the patient.
Parking Directive Sinks Employer’s Attempt to Deny Claim
Administrative Office of the Courts v. Blevins, et al., No. 2015-CA-001726-WC (Ky. Ct. App. 04/08/16)
Ruling: The Kentucky Court of Appeals held that a clerk was entitled to benefits for her fall on black ice in a parking lot.
What it means: In Kentucky, a worker may be entitled to benefits for an injury occurring in a public parking lot when the employer directed her not to park in its own lot.
Summary: A deputy clerk for the Administrative Office of the Courts was directed not to park in the employer’s parking lot to provide access to other personnel. She parked in the next closest public parking lot beside the sheriff’s office. She needed to walk 150 feet to reach her workplace.
While walking, the clerk slipped and fell on a patch of black ice on the sidewalk in front of the sheriff’s office and injured her right leg. The clerk filed a workers’ compensation claim. The Kentucky Court of Appeals held that she was entitled to benefits.
The employer asserted that the coming and going rule barred her claim and that the operating premises exception did not apply. The clerk did not park in a lot that was owned, leased, maintained, or controlled by her employer.
She parked in a public lot and was injured on a public sidewalk used by the public in general. She did not park in a place where the employer required her to park. The clerk was directed not to park in the employer’s lot, which left her with the only reasonable alternative being to park in the closest place.
The court explained that the clerk had no alternative as to parking because of restraints placed on her by the employer.
The employer impeded her access to its own parking lot for the operative convenience of providing access to other personnel. The court found that the employer “effectively expanded the parameters of its own ‘operating premises.’”
A dissenting judge opined that operating premises must be a place defined by an employer. The judge opined that the majority’s decision stood for a proposition that when an employer forbids workers from using a parking area the employer effectively converts every other conveniently located parking space into its operating premises.