As I’ve mentioned in my last several posts, a bit more than a week ago, I enjoyed being part of three panel discussions at the 21st Annual National Workers’ Compensation and Disability Conference® & Expo in Las Vegas. After the conclusion of one of the panels–this one discussed medical and legal causation–I had an interesting interchange with an attendee regarding a commonly misused phrase in workers’ compensation law. You may even have used it yourself. It’s the notion that workers’ comp provides benefits for employees injured “on the job.”
It doesn’t, you know. “On the job” implies only a spatial and temporal relationship between the work and the injury. Under most circumstances, however, the fact that one happened to be at work when the injury occurred is, in and of itself, insufficient to support a claim. This is so because a claimant must ordinarily show that the injury “arose out of and in the course of the employment.” This “AOE/COE” requirement is usually understood to require not only that the injured employee have been “on the job,” but that the risk of injury spring, in one form or another, from that employment.
My exchange with the attendee who, by the way, was not an attorney, but rather an employer, was prompted by a series of hypotheticals that I had earlier posed to the audience. I first gave them some jurisdictional context: Missouri employs a heightened standard when it comes to determining whether an injury “arose out of and in the course of the employment.” The injury must “not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life” [§ 287.020(2) RSMo.].
Injured Making Coffee
I told the Las Vegas audience about two recent cases from Missouri. First, I described the activity of an office worker who, according to her employer’s policy–and common courtesy–began to make a fresh pot of coffee at her work place one morning since she had taken the last cup from the previous pot. As she turned slightly to throw away the coffee grounds from the earlier pot, she slipped off her high-heeled sandal, fell, and injured her pelvis.
I asked the Las Vegas group for a show of hands by those who thought, given the special Missouri statute mentioned above, that the office worker should receive workers’ compensation benefits for her injury. Almost everyone in the group quickly signaled in the affirmative. If you recall my discussion of Johme v. St. John’s Mercy Healthcare, 2012 Mo. LEXIS 101 (May 29, 2012), posted May 31 [see http://www.workcompwriter.com/missouri-divided-supreme-court-reverses-award-of-benefits-to-employee-injured-making-coffee-for-herself-and-others-in-the-office-kitchen/], you know that in a divided decision, the Supreme Court of Missouri reversed an award of comp benefits, finding that since there were no irregularities or hazards on the office kitchen’s floor–the floor was not wet, nor was there any trash or debris on the floor at the time–the employee’s injuries had come from a hazard or risk unrelated to her employment to which she would have been equally exposed outside of and unrelated to her employment in her normal nonemployment life [See generally, Larson’s Workers’ Compensation Law, § 3.03]. Or at least so said the majority of the Missouri high court.
Injured Walking Down Steps
I then asked the conference attendees to consider another recent Missouri case, this one a late October decision from the state Court of Appeals [Pope v. Gateway to the West Harley Davidson, 2012 Mo. App. LEXIS 1335 (Oct. 23, 2012)]. There an employee fell as he walked down a small flight of stairs at his employer’s premises. The stairway was unobstructed. It was not slick or wet. The employee’s job required that at the end of the work day he move motorcycles from one level of the employer’s premises to another. After moving each cycle, he used the stairway to get to the level to retrieve another. Missouri law also required that he wear a helmet while actually operating the motorcycles. At the time of his fall he was carrying, not wearing, the helmet.
Again I asked for a show of hands if the employee should receive an award of benefits. Primed by their newfound knowledge of the Johme decision , mentioned above, and factoring in the “normal nonemployment life” statutory component into the scenario, only a few raised their hands this time. I indicated to the larger group of attendees that they were wrong again, that the appellate court seized upon the fact that at the time of the employee’s injuries the employee had been wearing boots and carrying a motorcycle helmet. Such factors differentiated his risk of injury from the normal activity of walking up and down stairs in his non-employment life, or at least so said the Court of Appeals.
“On the Job?”
And so, as I walked out of the conference area after the presentation, the employer I mentioned above sought me out and said, “I really don’t understand the Missouri cases at all. Making coffee, walking down the stairs–what’s the difference. Both workers were hurt while they were on the job. Isn’t that exactly what workers’ compensation insurance is supposed to cover?
I said, “I’ll let you decide. If you have a morbidly obese employee who performs rather sedentary office work, without unusual stresses and strains, who keels over from a heart attack while sitting at his desk, should be employer always be responsible for the claim? Or if one of your workers has a fight with her husband or boyfriend at home an hour or so before she travels to work and the crazed guy comes into the workplace and assaults or kills her, should the employer always pay? Or if an aggressive employee strikes out after another and the aggressor is injured when the other worker defends himself, is it fair to saddle the employer and carrier with the medical costs and lost time incurred by the aggressor?”
“No, of course not, in those situations,” the employer replied.
“You see things a lot like the Missouri courts,” I said with a grin.
He chuckled and said, “I see what you mean.”