A 68-year-old worker for a beef packing company weighed 120 pounds. One evening when her shift ended, the wind was gusting up to 64 miles per hour. Her son also worked for the company. She waited in the cafeteria for him to complete his work so that he could drive her home. When he finished 30 minutes later, he moved his car closer to the building so the worker would not have to walk far. While walking about 150 feet to her son's car, a gust of wind knocked her into a rail fence, causing her to fracture both shoulders.
The accident happened on property owned and controlled by the company. The worker had surgery on both shoulders and did not return to work. She sought permanent total disability benefits without an offset for her retirement benefits.
The administrative law judge awarded compensation to the worker. The Workers' Compensation Board ruled that her injuries did not arise out of her employment because the weather was an intervening factor. The ALJ then reversed her finding and denied compensation. Upon review, the board stated that the worker was subjected to the same risk or hazard as the general public in the vicinity. The worker appealed.
Was the board correct in denying benefits to the worker?
A. No. The company should be liable for benefits because the worker's injury occurred on its premises.
B. Yes. The nature of the worker's work did not subject her to a greater risk from the elements than that to which she otherwise would be exposed.
C. No. The company's premises contributed to the accident and the severity of the worker's injuries.
How the court ruled: B. In an unpublished decision, the Kansas Court of Appeals held that the worker was not entitled to benefits because her shoulder injuries did not arise out of her employment. Bach v. National Beef Packing Co., No. 107,681 (Kan. Ct. App. 12/21/12, unpublished).
The court found that the worker did not establish a causal connection between the conditions under which her work was performed and her resulting injury. The court said that being knocked over by a gust of wind in the area was possibly "a consequence of the broad spectrum of life's ongoing daily activities." Being blown around by the wind was not peculiar to her job.
She remained in the company's cafeteria for 30 minutes for personal reasons that were unrelated to her job duties. She was not ordered to leave the plant during the windy conditions. The court pointed out that if she had been off work that night and leaving a store when the wind began to gust, there was no evidence to suggest that she would not have been blown around in a similar way.
A is incorrect. The court explained that the going and coming rule did not apply to automatically exclude benefits to the worker because her injury occurred on the company's premises. However, she did not show that her injuries arose out of her employment.
C is incorrect. The court said that wind current shifts when striking any stationary object. The worker did not identify anything about the company's building that would make it more dangerous than other buildings in a windstorm. There was also no evidence that the wind that struck the worker originated and dissipated within the perimeter of the company's property. She was not exposed to any comparable physical condition at her work site to which she was not exposed off the work site.
Editor's note: This feature is not intended as instructional material or to replace legal advice.
April 1, 2013
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