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A Sears employee worked in the package pickup and receiving department at one of the company's retail stores. His employment required him to load heavy merchandise into customers' vehicles between 10 and 30 times every day. The worker would direct customers to back their cars up to the curbside loading area. Customers had previously driven over the curb and into the lobby.

The worker retrieved a customer's 46-inch television from the stockroom, placed the television on a hand truck, took the television to the lobby and began signaling to the customer through the window from about five feet inside the lobby. The customer backed his vehicle to the curb but continued backing his vehicle over the curb and onto the sidewalk.

A deputy commissioner found that the work environment "substantially increased" the worker's risk of being hit by a customer's vehicle. The commissioner found the worker's injuries arose out of his employment and were compensable. On review, the workers' compensation commission agreed that the worker was entitled to compensation.

Was the commission correct in awarding compensation to the worker?

A. Yes. The evidence showed several circumstances that connected the worker's employment to his workplace injuries.

B. No. Being struck by a vehicle on work premises alone does not establish the required causation for the worker to prevail.

C. No. The worker had to prove that his workplace duties distracted him and that workplace materials impeded his path to safety.

How the court ruled: A. The Virginia Court of Appeals held that the worker's injury arose out of his employment and he was entitled to temporary total disability benefits. Sears Roebuck & Co. of North America v. Martin, No. 2168-10-3 (Va. Ct. App. 05/10/11, unpublished).

The court applied the actual risk test, which states that an injury comes within workers' compensation if there is a causal connection between the worker's injury and the conditions under which the employer requires the work to be done. The court explained that the combination of the circumstances exposed the worker to a greater risk of being injured in a vehicular accident. The court noted that the close proximity between the curbside loading area and the inside pickup lobby gave the worker little time to react as the customer's vehicle backed into him.

B is incorrect. The court explained that a worker must establish a causal connection between the employment and his injuries.

C is incorrect. The court explained that, in a previous case, these circumstances established the causal connection between the employment and the worker's injury. The court said they are not the elements of a legal test that apply in all cases.

CHRISTINA DIFONTE is the legal editor of the WorkersComp Forum.

This feature is not intended as instructional material or to replace legal advice.

Read more at the WorkersComp Forum homepage.

June 22, 2011

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