A worker uses questionable judgment while using heavy equipment. He’s seriously injured, and a test shows he used illegal drugs. The employee applies for workers’ comp. Does he get benefits?

Here’s what happened:

Michael Wiehe was an employee of Kissick Construction Co. in Kansas. The company had been hired as part of a highway-widening project.

Wiehe was operating a roller which leveled and compacted dirt before asphalt was laid on top. He attempted to break apart a large pile of dirt when the roller tipped over. Wiehe was thrown from the machine. The roller had a seat belt, but Wiehe wasn’t wearing it.

He suffered numerous injuries, including severe ones to his pelvis.

A drug test was performed on Wiehe at the hospital. He had a level of marijuana which was more than four times the amount needed to establish a conclusive presumption of impairment under Kansas law.

Wiehe admitted that he had used both methamphetamine and marijuana the day before he was injured. However, he said he was clearheaded on the day of the incident.

The Workers’ Compensation Board awarded benefits to Wiehe. It said the impairment exception didn’t apply in this case because there wasn’t enough evidence to show that Wiehe had behaved erratically or unusually before the incident.  His employer appealed.

To show that Wiehe was impaired, a company foreman testified that he’d noticed Wiehe acting “a little goofy” before the incident, bobbing and weaving his head.

An experienced operating engineer also testified that Wiehe’s attempt to flatten a mound of dirt that was too large showed an extreme lack of judgment.

A toxicologist told the court that a person who is impaired by marijuana would function normally until something unexpected is placed in his or her path. The toxicologist said Wiehe might have carried out his job just fine that day if the large lump of dirt hadn’t been there.

The appeals court overturned the decision of the Workers’ Compensation Board. Wiehe would not get workers’ comp benefits. It said the company had proven that his impairment caused him to operate the roller in a manner that demonstrated extremely poor judgment.

What do you think about the ruling? Let us know in the Comments section below.

Wiehe v. Kissick Construction Co., Court of Appeals of Kansas, No. 102,669, 5/6/10.

An employee engaged in unsafe horseplay at work. He got warnings, including a final one, but was caught once again on videotape. He was fired, and the case eventually went to court.

Thomas Ayres worked at Wal-Mart. The company has a policy prohibiting “practices that may be inconsistent with ordinary and reasonable common sense safety rules,” such as “horseplay.”

Ayres engaged in an activity he called “surfing” — riding on pieces of cardboard on gravity roller conveyors.

A manager warned Ayres this was against policy. Ayres acknowledged this type of conduct was an “unsafe procedure.”

He was issued warnings several times for rules violations, and eventually received a final warning. A worker at Wal-Mart who violates any policy after a final warning is automatically terminated.

Sometime after receiving that warning, Ayres reported that he had dropped a wooden pallet and injured his toe.

While investigating, Wal-Mart managers viewed a videotape of Ayres’ work area on the day he was injured. On the video, Ayres and several of his co-workers can be seen trying to jump over two stacks of wooden pallets.

Ayres started running toward the pallets from about 20 feet away and then tried to jump over them. He attempted this three or four times and then did a cartwheel off the side of the stack of pallets. This happened about an hour after Ayres injured his foot.

Wal-Mart fired Ayres for engaging in horseplay.

The state determined he was ineligible for unemployment benefits because he was fired for misconduct.

Ayres appealed, with the case eventually going to a state court. He argued that his actions didn’t amount to employment misconduct.

The court rejected Ayres’ argument. It ruled the horseplay he engaged in did amount to employment misconduct — unemployment benefits denied.

Ayres v. Wal-Mart Associates Inc., Court of Appeals of Minnesota, No. A09-2125, 8/3/10.

An employee injures her knee just by walking up stairs at work and applies for workers’ comp benefits.

Maureen Shay was a teacher in North Carolina. She normally used the school’s elevator to reach the second floor where her classroom was because it was difficult for her to walk up the stairs.

Then the elevator broke and she had to use the stairs.  A month later, her knee gave out while walking up the stairs.

Another month later, her knee pain hadn’t improved. An MRI revealed a medial meniscus tear in her knee.

Shay had surgery and filed a claim for workers’ comp benefits.

The insurance company denied coverage, saying the injury wasn’t work-related.

On appeal, the workers’ comp commission ruled in Shay’s favor and awarded her benefits.

The company appealed to a state court.

Was it an ‘accident?’

In court, both sides agreed that the injury arose out of and in the course of Shay’s employment. However, there was another issue to settle.

Under the state’s Workers’ Compensation Act, an employee is entitled to compensation for an injury only if it is caused by an “accident.”

North Carolina courts have defined accident as “the direct result of a specific traumatic incident” and not part of the employee’s normal work routine.

The court said in Shay’s case, since she didn’t stumble, fall, trip, slip or twist her knee, she didn’t suffer an accident.

Shay tried to argue that, because the elevator broke, walking up stairs to her classroom wasn’t part of her normal work routine.

But the court didn’t buy that argument either. It noted that she’d been walking up the stairs for four weeks before she injured her knee. It said that climbing the stairs for a month became part of her normal work routine.

The court’s final word: Comp benefits denied.

(Shay v. Rowan Salisbury Schools, Court of Appeals of NC, No. COA-09-1587, 7/20/10.)

What do you think about the court’s decision? You can leave a reply below.

One way is to correct the problem quickly, as a recent case before the independent Occupational Safety and Health Review Commission (OSHRC) shows.

An OSHA inspector visited a worksite in Tarrytown, NY, where MVM Contracting Corp. was hired to perform construction and renovation work.

After the inspection, OSHA issued a willful violation to MVM, saying it failed to protect employees working in an excavation from a cave-in. Employees had been working in an excavation without shoring that was more than five feet deep. The penalty: $21,000.

MVM didn’t contest the citation itself, just its classification as willful. An OSHRC law judge heard the appeal and reclassified the violation as serious. The fine dropped to $2,100.

OSHA appealed to the full commission, which reinstated the willful classification and the $21,000 fine.

This is how OSHRC came to its decision: The first time he visited the MVM worksite, the inspector provided the superintendent with detailed information about OSHA’s excavation standards and told him the company was in violation.

The inspector returned four days later to find no additional protection provided in the excavation. The inspector testified that the superintendent told him employees had worked in the excavation after the first inspection without cave-in protection.

OSHRC says the superintendent’s knowledge of the excavation standard and his conscious failure to bring the worksite into compliance amounted to a willful violation.

In a nutshell: The company would have faced a fine only 1/10th the size if it would have corrected the violation before the inspector’s next visit or barred employees from entering the excavation until corrections were made.

(Secretary of Labor v. MVM Contracting Corp., OSHRC, No. 07-1350, 7/20/10.) Click here for a PDF of the OSHRC decision.

The Ohio Industrial Commission awarded Millard Thomas benefits for a total loss of vision.

His employer, La-Z-Boy Furniture Galleries, appealed on the grounds it shouldn’t have to pay to return Thomas’ vision to his post-transplant condition, 20/50. The company said Thomas’ vision returned to the 20/200 it was before the transplant (which was brought on by a disease, not a workplace injury), and therefore he shouldn’t get comp benefits.

The case went all the way to the Ohio Supreme Court. It noted that this was a case of “first impression,” meaning one of its kind hadn’t been heard by the state’s highest court before.

In a nutshell, the court said, without precedent, the Industrial Commission could use its discretion to determine that Thomas’ 20/50 corrected vision after the corneal transplant could be used as the measure of his pre-injury visual acuity. Therefore, since his vision went from 20/50 to 20/200, he could receive benefits for a total loss of vision.

Cite: State ex rel. La-Z-Boy Furniture Galleries v. Thomas, Ohio Supreme Court, No. 2010-Ohio-3215, 7/13/10. You can download the court’s decision here (PDF).

What do you think about the court’s ruling? Let us know in the Comments Box below.

For most employees, turning around isn’t dangerous. But for a nurse in Mississippi, that simple act resulted in a broken leg, a protracted court battle, and ultimately, a sizable workers’ comp award. 

Irene Hare was 74 at the time. She’d had serious problems with her left leg since 1964, when a car accident killed her mother and crushed her left ankle and knee. She’d walked with a limp ever since.

In 1987, another car crash again severely damaged the same left knee and ankle. After having a screw and side plate implanted in her left femur, she eventually had her kneecap removed.

In ‘88, she slipped on some ice and broke her femur above the knee.

Finally, in 2000, she broke her pelvis after falling off a curb.

But she was back at work one night in 2005. In fact, she was working for the sixth day in a row, although she was supposed to work only four days a week. She was always happy to fill in when others took time off.

Her leg, she admitted, hurt more than usual that night, and she told co-workers she planned to get a shot for arthritis when her shift ended.

While delivering meds to a patient, she remembered she’d left a glass of water on her cart. So she pivoted. And her left leg “popped just like a shotgun.” X-rays showed she’d fractured her left femur.

She filed a workers’ comp claim.

Her employer argued that the injury hadn’t arisen out of her employment. Rather, it was a natural progression of her 40-year history of injuries and surgeries on her left leg.

It brought in an expert witness who said she had significant weakness in the leg that made her susceptible to a “spontaneous fragility fracture.” The fracture could have occurred during any normal life activities, he said, but it happened to occur while she was doing her job.

Not true, said her treating doctor. Her past injuries were completely healed by the time of the accident, and this injury was “further up the shaft … well away from her original fracture.”

In overruling a comp commission decision that denied benefits, a court of appeals gave more weight to the treating doctor’s testimony, and added “that the employer takes the worker as the worker is found, that is, with all the physical strengths and weaknesses the worker brings to the job. If a lame worker suffers an employment fall and is injured, the injury is said to arise out of and in the course of employment under the same test applied for workers not lame. By the same token, if an awkward worker stumbles and falls, the rule is the same as if the worker were agile.”

The court also said the commission had failed to consider “the humanitarian aims” of comp laws to compensate and make injured workers whole.

A dissenting judge thought comp should have been denied, saying “the singular fact that an injury occurs while an employee is on the job does not create a compensable injury … I fear that the majority’s conclusion (turns every) employer into an insurer or guarantor for all injuries to any of its employees who suffer an ‘untoward’ event while on the job.”

What do you think? Feel free to comment below.

Cite: Beverly Healthcare v. Hare, Ct. App. Miss., No. 2009-WC-00344-COA, 6/29/10.

A company decided to take back a conditional offer of employment after it found the applicant was a recovering drug addict. A lawsuit followed.

Here’s what happened: Donald Teaford applied for a job at Hussey Copper in Leetsdale, PA. Teaford was offered a production job at the plant which fabricated copper products. His offer was conditional. First, he needed to pass a physical and drug test conducted at an occupational medical facility, Heritage Valley Health System. All production jobs at Hussey were considered safety-sensitive positions.

During his physical, Teaford didn’t tell the nurse that he was being treated by a doctor at a clinic for dependency on opiates, including Oxycodone, and that he had been prescribed and taking methadone, a drug used to prevent withdrawal symptoms in patients who were addicted to opiates.

His urine tested positive for methadone.

Dr. Daniel Nackley, the Medical Director at Heritage Valley, contacted Teaford, who then said he was under treatment and taking methadone. Nackley received a letter confirming Teaford’s treatment and methadone prescription.

Nackley tried to contact the doctor who prescribed the methadone but wasn’t able to do so.

Hussey’s human resources department looked into possible accommodations for Teaford. However, Hussey’s head of safety said all the production jobs were safety sensitive and an accommodation wouldn’t be possible.

Based on the information he had, Dr. Nackley recommended Hussey should not perform safety-sensitive work.

Hussey’s safety manager decided that Teaford’s offer had to be rescinded because he wasn’t medically cleared to perform safety-sensitive work.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit, alleging that Hussey discriminated against Teaford because he was a recovering addict in a supervised rehab program when it withdrew the conditional offer of employment. It seeks damages and back pay for Teaford.

The EEOC argues that Hussey failed to conduct an individualized assessment of Teaford, as is required by the Americans with Disabilities Act (ADA).

Hussey filed a motion to get the case thrown out, claiming that the Teaford’s physical and drug test, along with the analysis from Dr. Nackley, was an individual assessment. It also argued that hiring Teaford would have posed a high probability of substantial harm to himself or others.

The court’s decision: It would not throw out the lawsuit. It will now either have to go to trial or be settled out of court.

The court noted Dr. Nackley acknowledged that every situation involving opiate use is unique, and that a neurological exam was available to make an individual assessment. But a neurological exam wasn’t performed on Teaford.

For that reason, the court said Hussey didn’t conduct the required individual assessment on Teaford.

The take-away for companies: You can set qualifications for safety-sensitive jobs. However, medical professionals have to perform their due diligence to disqualify applicants from a job.

Cite: EEOC v. Hussey Copper, U.S. District court, W.D. PA, No. 08-809, 3/12/10.

In a recent case, two employees of the same company sustained the same injuries. But the state’s Supreme Court said one could sue, and the other couldn’t.

Here’s what happened: A guy working for a recreational vehicle dealership was given a makeshift pre-fab “office” that was heated by a propane stove. He complained that the fumes from the stove made him sick, but the company ignored his complaints.

Then one day his girlfriend found him unconscious in the office. He was later diagnosed with numerous debilitating neurological impairments and declared permanently disabled.

A short time later, a new employee was hired to do the same job. He, too, complained that the fumes were making him sick. And he, too, was eventually found unconscious — this time by a co-worker. He was also eventually declared permanently disabled.

In fact, he died a short time later (the decision doesn’t say whether his death was related to the exposure).

When the first employee and the family of the second combined forces and sued, the company was able to get both cases dismissed by a district court, successfully invoking exclusive remedy.

But the state’s Supreme Court saw things differently. The district court was right, it said, to toss the first employee’s complaint. But the second employee, it said, might have had a point. Granted, the company hadn’t intentionally harmed him. But given all the circumstances, the company might have been reasonably certain that harm would occur. And that might be enough to overcome exclusive remedy.

Now, the case will be heard by a jury, if it isn’t settled first.

While noting that it was hard to sympathize with the company in this case, one of the high court justices nonetheless vehemently disagreed with the decision to let the employee’s case be heard, saying, “I believe the legislature intended Workers’ Compensation to be the exclusive remedy except … where the defendant’s conduct arose from specific intent rather than willfulness. In other words, an assault would allow a personal injury action. Gross negligence, such as we have here, would not.”

The case, Alexander v. Bozeman Motors, Inc., was decided by the Supreme Court of Montana.

What do you think? Does exclusive remedy unfairly protect even reprehensibly negligent employers, or does the dissenting justice have it right — unless an employer sets out to deliberately harm an employee, workers’ comp should always be the only remedy? Feel free to comment below.

Michial Jacobs was struck by a tractor trailer driven by Thomas Lloyd on Oct. 2, 2004. The truck was going 55 miles per hour.

Lloyd fell asleep at the wheel.

Police reports say Jacobs suffered a fractured rib and sustained a concussion.

Jacobs sued Lloyd’s employers, Pacific Transportation Services and Ernie Newland. The employers admitted liability for the crash but contested the extent of Jacobs’ injuries.

Jacobs says he also suffered an injury to his mid-back which resulted in chronic pain. He says he hasn’t been able to return to work as a carpenter.

The employers offered to settle for the insurance policy limits on the claim, but Jacobs rejected that.

When workers don’t report injuries right away and then apply for workers’ comp benefits, it often raises a red flag. With conflicting testimony, these cases often come down to which side the court finds more believable.

Rodney Harris claimed he injured his back at work on July 6, 2007, while lifting a drain from a machine. He says it happened 15 minutes before the end of his shift, the day before he was scheduled to begin a one-week vacation.

He didn’t report his injury that day, and even admitted, when the case went to court, that he knew about the company’s policy that injuries must be reported to a supervisor immediately.

Harris said one reason he didn’t report the injury was because he’d suffered from pulled muscles in his back before, and that’s all he thought it was.

Over the weekend, his back pain increased. The following Monday, while on vacation, he saw a doctor.

Harris was diagnosed with a large disk herniation and severe degenerative disk disease in his lower back.

He eventually applied for workers’ comp benefits. The company didn’t think Harris had been injured at work, and the case eventually went to trial.

Among the facts recorded by the court:

• The medical records from his first two doctor visits don’t indicate that Harris’ injury was work-related.
• Harris’ wife claims, on the day her husband was to return to work after vacation, she called his employer, Keystone Foods, to say he suffered a work-related back injury before vacation. However, Harris’ supervisor says there was no mention of the injury being work-related during the call.
• A neurosurgeon that Harris saw after his first two doctor visits also has no record that the injury was work-related in his documents.
• Harris is legally deaf. His wife and mother both said communication problems with the doctors were the reasons there were no mentions of the injury being work-related in their medical records.
• Harris’ doctors said they weren’t comfortable saying that his back injury was work-related because they had no documentation of a workplace accident.

Taking all these statements into consideration, both a trial court and appeals court found Harris’ testimony, along with that of his wife and mother, to be credible. It found that it was likely that communication problems Harris had with his doctors contributed to the fact that the injury happened at work was missing from their records.

The court upheld Harris’ workers’ comp benefits with one exception. Alabama law says if notice of a workplace injury isn’t given within five days, an employee won’t be entitled to medical benefits that may have accrued before the date of notice.

So the court said his initial doctors’ visits before he notified the company about the injury would not be covered.

What do you think about the court’s decision? Let us know in the Comments Box below.

Cite: Keystone Foods v. Harris, Court of Civil Appeals of Alabama, 6/4/10.

Janelle Riley worked for Labor Ready, an employment agency.

On March 16, 2004, she received a ride to work from a co-worker because she didn’t have transportation to the work assignment.

On the return trip, with the co-worker driving, Riley was killed in a car crash.

The administrator of her estate filed for workers’ comp death benefits on behalf of the deceased worker’s two minor children.

The estate argued that because Labor Ready assumed responsibility for transporting its employees to and from their temporary job assignments, this crash occurred within the scope of the deceased worker’s employment.

The court disagreed and ruled that the estate should not receive death benefits.

The court’s opinion noted:

• the vehicles used for transport weren’t owned by Labor Ready
• Labor Ready had no contract to transport its employees
• the company didn’t pay any driver to transport employees, and
• on the day of the crash, the Labor Ready employee who drove wasn’t working.

Generally, travel to and from work isn’t considered to be within the scope of employment. However, an accepted exception is when the employer takes responsibility to transport its employees.

However, the court didn’t consider encouraging carpools to be the same as providing transportation. Workers’ comp benefits denied.

What do you think about the court’s decision? Let us know in the Comments Box below.

Cite: Davis v. Ready, Appellate Div. of the Supreme Crt. of NY, No. 507678, 1/21/10.

A worker at a bear park smoked pot before coming to work where he fed grizzlies. The worker was seriously injured by one of the bears. A workers’ compensation judge called that “mind-bogglingly stupid.” But did the judge rule the worker was entitled to workers’ comp?

Montana’s comp law says: “An employee is not eligible for benefits otherwise payable under this chapter if the employee’s use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident.”

Here’s what happened in this case:

Employee Brock Hopkins entered a pen at Great Bear Adventures in West Glacier, MT, to feed grizzlies. He was attacked by one of the bears and escaped by crawling under an electrified fence. He suffered severe injuries.

Hopkins admits he smoked marijuana that day. (Changed from original version to clarify that the defendant smoked marijuana on the day of the incident.)

His employer presented no evidence about his level of impairment on the day of the attack.

Hopkins sought workers’ comp benefits for his injuries but was initially denied on the grounds that his use of marijuana was the major contributing cause of the accident. Hopkins appealed to the state’s Workers’ Compensation Court.

Here’s what the judge wrote: “When it comes to attacking humans, grizzlies are equal opportunity maulers, attacking without regard to race, creed, ethnicity, or marijuana usage. Hopkins’ use of marijuana to kick off a day of working around grizzly bears was ill advised to say the least and mind-bogglingly stupid to say the most.”

The judge noted that, while using pot before interacting with bears may have been stupid, there was no evidence presented to conclude that Hopkins’ pot use was the major cause of the incident.

The decision: Hopkins was entitled to workers’ comp benefits.

What do you think about the judge’s decision in this case? Let us know in the Comments Box below.

Hopkins v. Uninsured Employers’ Fund, Workers’ Compensation Court of MT, No. 2008-2152, 5/4/10.

For purposes of workers’ comp benefits, just what constitutes an injury “arising out of and in the course of employment”? A court recently issued an interesting interpretation of that phrase.

Terry Henry worked at Precision Apparatus, a company that builds ambulances and fire trucks.

Each morning before his shift, he’d arrive early to arrange his tools and prep for the workday.

The company also allowed employees to work on their personal vehicles before work, at lunch and after hours.

One morning, Henry arrived early for his usual routine. He hadn’t filled in his time card yet.

A co-worker pulled his personal vehicle into a garage bay to fix a flat tire. Henry heard someone say the vehicle was going to roll off the jack, so he went outside to get a rock to keep the truck from moving.

When he went outside he tripped and broke his leg.

He applied for workers’ comp benefits. The Missouri Labor and Industrial Relations Commission said the injury didn’t occur in the course of work and rejected his claim. Henry appealed.

The Missouri Court of Appeals upheld the Commission’s decision. It said helping a co-worker didn’t qualify as work.

However, the court also wrote in its opinion, that some injuries at work before an employee clocks in are eligible for workers’ comp benefits.

“The Commission could have found that [Henry] was working for the employer when he was arranging his tools and at his workbench if the injury had occurred at that time. Had the Commission found a compensable injury occurred at his workbench, but prior to [the start of his shift], we would accept the Commission’s factual determination.”

Bottom line: This state accepts the idea that if an employee is injured “off the clock” while performing tasks in the workplace that benefit the employer, that worker may be eligible for workers’ comp benefits.

What do you think about the decision regarding Henry and the court’s statement on when workers’ comp benefits kick in? Let us know in the Comments Box below.

Cite: Henry v. Precision Apparatus, Missouri Court of Appeals, No. 29772, 2/16/10.

What types of workplace noise do you think of in connection with occupational hearing loss? Jack hammers, lawn tractors, manufacturing assembly lines? In this case, a worker claims hearing loss from being yelled at on the phone by angry customers.

Linda Zahm worked for National Fuel for 31 years. For 18 of those years, she spent varying parts of her day on the phone with customers who were angry and/or had difficulty hearing.

When she started at the company, a pre-employment hearing exam revealed Zahm had a measurable loss of hearing.

Two years after she retired, Zahm filed a workers’ compensation claim contending she’d suffered occupational hearing loss due to long-term noise exposure “from being on the telephone for years.”

A workers’ compensation law judge and the Workers’ Compensation Board ruled that Zahm had suffered occupational hearing loss. The company appealed.

Zahm’s treating physician testified that her hearing loss was from employment.

However, the appeals court sided with the company.

The court said Zahm’s doctor based her opinion on an erroneous assumption that Zahm spent all 31 of her years on the job on the phone for eight hours a day and was exposed to 80 to 90 decibels of noise.

The court said Zahm’s “description of the actual noise level, which was not measured, was simply too vague and imprecise to establish that it was in fact injurious.”

Outcome: Award of workers’ comp benefits overturned.

What do you think about this case? Let us know in the Comments Box below.

Cite: Zahm v. National Fuel, Appellate Div. of NY Supreme Crt., 4/15/10.

It’s a fact: Dust, temperature and humidity factor into asthma attacks. But how can you tell if asthma is an ongoing disability?

Here’s what happened in this case:

Hughey Payne worked for the Washington Metropolitan Area Transit Authority (WMATA) as a Metro Station manager.

One summer, Payne had trouble breathing because malfunctioning air conditioning in the station created high heat and humidity.

He received a requested transfer to another station.

A year later, the air conditioning in that station stopped working, and Payne became dizzy, faint and very weak one day on the job.

He left work and hasn’t returned since on advice from his doctor that he should avoid the “dusty, underground station,” and that he needs to work in an environment “without temperature extremes to avoid worsening of his asthma.”

Payne filed for and received disability benefits.

An administrative law judge (ALJ) made these findings:

• Payne’s injury arose out of and in the course of his employment
• His physical condition “is medically causally related to the work incident” (malfunctioning air conditioning)
• His exposure to dust and excessive heat while working as a station manager aggravated his asthma, and
• The medical evidence supported Payne’s claim that the work exposure to dust and heat prevented him from returning to work in the Metro tunnels.

His employer, WMATA, appealed.

It presented testimony from a certified industrial hygienist that the dust levels inside the Metro stations were 1/100th of the limit set by OSHA.

The ALJ again ruled in favor of Payne, saying that the hygienist wasn’t a medical doctor and couldn’t determine whether those dust levels were sufficiently low for Payne to return to work.

The case eventually went to the District of Columbia Court of Appeals.

It noted that one of the doctors in the case was asked: If a person is affected by dust, and a report says a work area meets OSHA air quality standards, would that person be released to go back to work? The doctor replied in that case, it wouldn’t be the dust that was causing the asthma problem.

On top of that, the appeals court found the ALJ had used the wrong burden of proof to determine whether Payne’s disability was ongoing. For that reason, the ALJ couldn’t discount the testimony from the industrial hygienist.

The case has been sent back for a rehearing. (A PDF of the appeals court’s entire opinion can be downloaded here.)

What do you think about this case? Let us know in the Comments Box below.

Cite: WMATA v. Payne, DC Court of Appeals, No. 08-AA01207, 4/15/10.

Mark Buttitta was exposed to asbestos as a child. His father handled brakes and clutches containing the substance while working at a General Motors warehouse and carried the asbestos fibers home on his work clothes.

Buttitta was then directly exposed to asbestos while working at a GM warehouse during his summer and winter breaks from college.

In upholding the jury award, the largest mesothelioma award in New Jersey history, the Superior Court noted that the frequency, regularity and proximity test had to be viewed differently than the test for another asbestos-related disease, asbestosis.

Mesothelioma, a cancer that is often fatal, can develop from infrequent exposure to a relatively small amount of asbestos. Asbestosis usually requires much more prolonged exposure.

The court ruled that Buttitta’s “rather brief work history” with asbestos was enough to establish a medical link with his mesothelioma some 30 years later.

The $30.3 million award broke down this way: $8 million for pain and suffering, $2 million for loss of consortium, $9.3 million for lost earnings, $2 million for loss of services, and $3 million to each of Buttitta’s three daughters for loss of parental care.

Cite: Buttitta v. Allied Signal, Inc., Superior Court of NJ, 5/5/10.

Christopher Dupree fell about 150 feet while painting a water tank in Hurtsboro, AL.

Paramedics tried to revive him, but he was pronounced dead at the scene.

The local sheriff’s department said Dupree was suspended from a rope on top of the water tower and was wearing a harness, but it appeared there might have been some malfunction of the safety equipment that caused the fall. Dupree was one of three workers at the tank that day.

At first, Dupree’s wife sued her husband’s employer, a general contractor, the Russell County Water Authority and an engineering firm. However, the lawsuit was later amended to focus on Robinson and Sons Construction Services, because it was responsible for workplace safety on the project.

In closing arguments, the lawyer for Dupree’s wife asked jurors to return a verdict that would send a message to all employers that they must provide a safe working environment for employees.

Now, Maurice Buzzell, owner of Buzzell Tree Service in East Kingston, NH, has been ordered to receive arborist training, perform 100 hours of community service and make 10 presentations to students about workplace safety.

He’s to appear in front of the judge again in a year to show that he’s completed the terms of his suspended sentence.

Earlier this year, a jury found Buzzell guilty of the homicide charge and a reckless conduct charge in the death of 22-year-old Jon Paul LaVigueur.

Prosecutors recommended a 1- to 3-year prison term. The maximum he could have received was 7 years in jail.

But Judge Diane Nicolosi said, “Mr. Buzzell is not an uncaring man. I think he is grieving for this man (LaVigueur).”

In August 2007, LaVigueur was struck in the head and torso by parts of an 80-foot pine tree. He was part of a four-person team pulling down the tree. As it started to fall, LaVigueur ran in the same direction it fell.

Former employees testified they were taught by Buzzell not to move out of the way until a tree started to fall.

What do you think of the court’s sentence? Let us know in the Comments Box below.You can also take our Quick Poll on this topic on our home page.

A judge has ordered Murphy Oil Corp. to pay the five employees $50,000 each for noise-induced hearing loss, a total of $250,000. The five employees worked at the company’s Meraux, LA, plant.

The company may have to pay out more for hearing loss, as the court has yet to rule on the claims of 35 other former employees.

A ruling in favor of all the workers would amount to $2 million if they all were ordered to receive $50,000.

The judge said Murphy Oil violated its duty to its employees by failing to provide:

• a safe place to work free from excessive noise
• an effective hearing conservation program
• regular and periodic hearing tests, and
• warnings of the dangers associated with long-term chronic occupational noise exposure.

The court also noted Murphy Oil decided not to spend $110,000 for noise control equipment during a $35 million plant expansion in the late 1970s.

City of Detroit employee Susan McBride filed her lawsuit under the Americans with Disabilities Act (ADA). She claimed the city failed to reasonably accommodate her allergy after she complained that a co-worker’s perfume made it difficult for her to breathe.

The city argued the perfume allergy didn’t qualify as a “major life activity” under the ADA.

But a judge disagreed, saying that breathing qualifies as a major life activity.

Under a settlement reached with McBride, the city will have to post notices in buildings where McBride works, asking other city employees not to wear scents at work.

The notice will contain this language: “To accommodate employees who are medically sensitive to the chemicals in scented products, the city of Detroit requests that you refrain from wearing scented products, including but not limited to colognes, after-shave, lotions, perfumes, deodorants, body/face lotions, hair sprays or similar products.”

No scented deodorants? That could be problematic.

But one company has decided to turn that potential problem into an opportunity.

The makers of unscented Crystal deodorant recently distributed free samples of their product to City of Detroit employees.

Crystal Vice President Larry Friedberg notes, “If people can’t wear deodorant, there’s going to be body odor at work.”

Friedberg says Crystal is made from natural salt, without scents.

Getting back to the case, here are some questions: Wouldn’t it have been easier — and less expensive — for the City of Detroit to have asked McBride’s co-worker not to wear perfume? What do you think about workplace scent bans for health reasons? You can share your comments below.

An employee was injured at work. At first his injury seemed minor. But as time passed, his condition grew more serious. He didn’t tell his employer about the incident until he needed to see a medical specialist.

In Kentucky, where this incident took place, workers’ comp law states that compensation shouldn’t be provided if the employee didn’t tell his employer about the injury “as soon as practicable.”

So the question in this case is: Does the worker get comp?

Here’s what happened:

A crate coming down a chute struck the employee on the shin. The force of the blow knocked him over. He immediately noticed a red welt on his leg. The worker didn’t report the injury because, at the time, he felt it was “no big deal.”

The next day the welt was bigger and started to turn black and blue.

The leg got worse several days later.

Two months after the injury, the spot was “like a blister or boil.” Soon after that it turned into an open wound.

It wasn’t until 60+ days after the incident that the worker finally reported the injury at work.

By this time, doctors had to bandage the wound. Eventually he had to see a specialist for wound care.

The company said it always stressed to its employees the importance of immediately reporting injuries because of the presence of bacteria and chemicals in the workplace that could cause even minor cuts to become infected.

An administrative law judge (ALJ) found the worker had waited too long to report the injury to qualify for workers’ comp. On appeal, the workers’ comp board upheld the decision. The worker appealed again to a state court.

The court found no reason to disagree with the ALJ’s finding. It noted that there are three reasons the notice requirement was required in the state’s workers’ comp law:

1. to provide prompt medical treatment
2. to allow a prompt investigation, and
3. to prevent fraudulent claims.

The worker said he provided notice to his employer as soon as he “became aware of the seriousness of his injury.” But the ALJ and the state court said that wasn’t good enough.

Verdict: No workers’ comp.

A side note: The court observed that there is no definition of “as soon as practicable” in the state’s workers’ comp law. It relied on the ALJ’s discretion to determine that.

How soon is soon enough? Within 15 minutes of injury? The same day? Is first thing the next morning OK? At what point should an employee be denied workers’ comp benefits for delaying the report of an injury? Let us know in the Comments Box below.

Cite: Granger v. Dairy, Court of Appeals of KY, No. 2009-CA-001345-WC, 3/5/10.

If doctors declare an injured worker totally disabled, what happens if he looks for work while he’s waiting to see if he gets workers’ comp benefits?

John DeHaven injured his shoulder at work in April 2005. He received temporary total disability payments until November 2005 when he took a light-duty position with his employer.

Three months after taking the light-duty position, DeHaven was laid off.

Eight months later, he filed a claim for workers’ comp benefits for his shoulder injury.

His former employer fought the claim using a few different arguments. But given today’s economic climate, this one is interesting.

DeHaven testified before the workers’ comp commission that he’d been looking for work since he was laid off. He said he had to look for work because he wasn’t receiving workers’ comp benefits and he didn’t have any income. DeHaven wasn’t able to find a job he was physically able to do.

His former employer said since DeHaven had looked for work, that negated his doctors’ opinions that his injury left him totally disabled.

The court didn’t buy the company’s reasoning. “We will not penalize DeHaven for seeking work despite his disability due to financial necessity, and we defer to the opinion of DeHaven’s treating physicians who concluded he was totally disabled,” the court’s opinion stated.

The court ruled DeHaven should receive temporary total disability benefits.

What do you think about this case? Let us know in the Comments Box below.

Cite: Land N Sea Distributing, Inc. v. DeHaven.

Frantz Pierre broke his ankle when he fell on a sidewalk where water was flowing from an outdoor sink used to wash clothes.

The South Carolina Workers’ Compensation Commission found that Pierre wasn’t required to live in the employer-provided housing, so he shouldn’t receive comp benefits.

Courts often consider what is known as the bunkhouse rule in these cases. The rule requires workers’ comp for employees who are injured while on an employer’s premises if they are required to be there. Courts often consider whether an employee’s use of the premises is part of their compensation.

Pierre appealed the commission’s decision. A state circuit court upheld the ruling.

But Pierre appealed once more to the South Carolina Supreme Court which overturned the decision. It said the worker should receive comp benefits.

The state’s highest court found that Pierre was essentially required to live on the grounds because he and other migrant workers employed by the company didn’t earn enough money to rent seasonal housing.

Do you think the court made the right decision? Let us know in the Comments Box below.

Cite: Pierre v. Seaside Farms, Inc., SC Supreme Court, No. 26777, 2/16/10.

Paulette Freeman suffered low back strain, a fractured big toe and bruises while at work. Later, she was also diagnosed with a herniated disc.

A doctor who examined Freeman said she was capable of driving and returning to work in a light-duty, non-physical capacity. The doctor reviewed the light-duty position, that of “building substitute teacher,” and said she was capable of that job.

The job didn’t involve lifting, bending or carrying. The school is wheelchair accessible, and there would be no problem with Freeman sitting, standing or changing her position as needed.

However, Freeman said she had stopped driving because of spasms in her legs and couldn’t drive to the school. She also said pain all over her body interfered with her ability to think and focus.

And she presented testimony from another doctor who said she could not do the substitute teacher job.

A workers’ comp judge and then the workers’ comp appeals board both ruled in favor of the employer, saying that after Freeman didn’t report for her light-duty job, her benefits could be suspended. Freeman appealed once again to a state court.

The court agreed with the previous two rulings, that Freeman should no longer receive workers’ comp benefits after she failed to report to the light-duty job. The judges agreed with the workers’ comp judge that Freeman’s testimony lacked credibility because she changed her story more than once about a previous injury she suffered 20 years before the workplace incident.

The court also found the testimony of the doctor who said Freeman could go back to work more credible than that from the doctor who said she could not.

The judges also said Freeman’s demeanor conflicted with her testimony that her pain affected her ability to think and focus.

In this case, the employer took several steps to help its case:

• It offered the employee a light-duty job
• Details about the demands of the job were spelled out, and
• The employer took the specifics of the job to a doctor who had treated the injured employee and got an opinion that she was able to perform the necessary tasks for the position.

And it’s probably not a good idea for injured workers who want to remain on workers’ comp to claim they can’t think or focus and then appear to be perfectly able to do so in court.

Cite: Freeman v. Workers’ Comp. Appeals Board, Commonwealth Court of PA, No. 1278 C.D. 2009, 2/1/10.

Jesse Cooper was a master plumber and foreman for Barnickel Enterprises. He’d gone to a location where a job was about to begin to discuss details.

When he arrived, he found the person he needed to talk to was teaching a class and wouldn’t be available for 45 minutes. Cooper decided to go get some coffee at a deli about five miles away.

On the way there, he was involved in a serious accident that broke one of his arms and both of his legs.

The New Jersey Division of Workers’ Compensation awarded Cooper 100% disability.

Barnickel appealed, arguing that Cooper’s accident didn’t arise out of and in the course of his employment.

A state appeals court rejected Barnickel’s argument and said Cooper should receive workers’ comp benefits.

The court said Cooper engaged in “exactly the kind of brief activity which if embarked on by an inside employee working under set time and place limitations, would be compensable under the personal comfort doctrine.”

In other words, accidents occurring during coffee breaks for off-site employees, which are equivalent to those of on-site workers, are eligible for workers’ comp benefits.

Do you think the court made the right decision? Let us know in the Comments Box below.

Cite: Cooper v. Barnickel Enterprises, Superior Crt. of NJ Appellate Div., No. A-1813-08T3, 1/13/10. Court opinion is available here (PDF).

A worker tests positive for PCP right after he’s injured. Is he still able to collect workers’ comp benefits?

As this case shows, it’s sometimes a matter of who the workers’ comp commission decides to believe.

Carl Johnson, a truck driver, was lifting 80-pound boxes when he felt a sharp pain in his shoulder and lower back.

After reporting the injury to his employer, he was drug tested the same day. He tested positive for PCP, also known as angel dust, a hallucinogenic.

Johnson claimed he didn’t use PCP and that he wasn’t impaired at work on the day of his injury.

Arkansas state law says comp can be denied when there is a positive drug test. However, if the worker can prove the drug use didn’t substantially cause the injury, comp can be awarded.

When the case was first heard, an administrative law judge found there was no evidence presented that Johnson appeared impaired.

Is worker’s word enough?

However, when the Workers’ Compensation Commission took up the case, it disagreed. The commission said it was up to Johnson to prove that he wasn’t impaired, and he presented no testimony other than his own to prove that.

He didn’t call on co-workers or customers to testify that he wasn’t impaired the day he was injured.

Johnson took the commission’s decision to the state appeals court.

The court said the burden to prove the PCP in his system didn’t cause his injury was on Johnson.

The court noted, “While Johnson’s testimony about his lifting injury might begin to carry this burden if credited 100%, the Commission was not required to believe him.”

Because the commission didn’t believe Johnson’s testimony, the court upheld the commission’s decision: Comp denied.

However, had the commission found reason to believe that Johnson wasn’t impaired by the drug use, he would have received comp payments.

How should cases where an injured worker tests positive for drug use be handled? Let us know what you think in the Comments Box below.

Cite: Johnson v. U.S. Food Service, Inc., AR Court of Appeals, No. CA09-851, 1/6/10.

When an employee with the insurance company making the disability payments saw the designer on a TV show, he alerted the California Department of Insurance.

Now Ronald Hunt of Sunland, CA, will pay $151,700 in restitution and $31,000 in back taxes. He pleaded guilty to one felony count of state income tax fraud and one felony count of insurance fraud. He was also sentenced to 200 hours of community service.

Hunt continued working as an interior designer from 2003 to 2006, including an appearance on an HGTV home improvement show.

While collecting the disability payments, Hunt made more than $400,500 in income.

More than 250 of them filed a lawsuit, alleging that their employer violated the Fair Labor Standards Act (FLSA) by not paying them for the donning and doffing time, despite what was in the contract.

The workers were employed by a chicken processing plant owned by Allen Family Foods in Delaware. Their personal protective equipment (PPE) included steel-toe shoes, safety glasses, ear plugs, bump caps, hair nets, sleeves, arm shields, and the following gear required by the USDA: smocks, plastic aprons and rubber gloves.

The FLSA contains a clause that allows employers and unions to agree through collective bargaining to exclude “any time spent in changing clothes … at the beginning or end of each workday.”

This lawsuit turns on two words in that FLSA clause: “changing clothes.”

The workers argued that PPE isn’t the same as clothes, and donning and doffing the gear isn’t changing.

The court rejected both arguments and ruled that the employer doesn’t have to pay for the time spent donning and doffing.

The judges turned to the dictionary to help make their decision. Clothes is defined as “covering for the human body.” The court said the PPE served as a covering.

While the employees argued that layering PPE on top of other clothes doesn’t count as changing, the court disagreed. Changing is defined as “modifying in some particular way but short of conversion to something else.” The judges found putting on PPE to be the same as changing.

One more interesting note from this case: The court’s opinion states that the union had proposed that its members be paid for 12 minutes of donning and doffing time per day. However, that didn’t make it into the contract.

What do you think about the court’s ruling? And is it worth it to pay employees for 12 more minutes a day if it would make them more likely to put on and use their PPE correctly? Let us know in the Comments Box below.

Cite: Sepulveda v. Allen Family Foods, U.S. Crt. of Appeals, 4th Circuit, No. 08-2256, 12/29/09 (PDF).

Jingzhi Li was convicted of three counts of second-degree attempted murder and three counts of first-degree assault in connection with the workplace violence on Jan. 4, 2008. Li had worked at the warehouse until he quit in November 2007.

On the day of the attacks, Li made arrangements to meet with the owner, David Li, and the manager, Lilly Ren, to buy seafood.

Jingzhi Li asked David Li to enter the freezer where the seafood was. Jingzhi struck David in the head and hands several times with a hammer, knocking him unconscious and leaving him in the freezer.

Li then found Ren and struck her in the face with the hammer. Ren feigned death so Li would stop attacking her.

The only other employee in the warehouse at the time, Linda Cheong, heard Ren’s screams, ran to an office and closed the door, but Li got to the door before she could lock it. He hit Cheong in the head and hands several times, also leaving her unconscious.

All three victims suffered severe injuries.

Li was picked up a short time later with blood all over his clothes.

A federal jury reached that verdict in connection with an April 19, 2007, poisonous chemical leak at its Texas City, TX, plant. The workers claimed BP failed to maintain equipment and provide adequate safety controls.

BP says it will appeal. The company argues there is no evidence workers were exposed to toxic substances above federal permissible limits.

The jury awarded each worker $10 million in punitive damages, as well as actual damages to cover medical expenses and lost income, ranging from $6,000 to $244,000 each.

Anthony Buzbee, the lawyer representing the 10 workers, says he plans to file lawsuits for an additional 133 workers at the plant.

OSHA and the Texas Commission on Environmental Quality investigated the 2007 incident. However, the investigations were closed without any notice of violations.

The workers were exposed to carbon disulfide, a harmful chemical that made them feel like they had flu symptoms. Monitors workers were wearing weren’t designed to track the chemical.

One of the workers in the case, 30-year-old Chuck Taylor, spent two nights in the hospital with chest pains after the incident. He still has headaches, dizziness and fatigue.

“The reason I brought the case is because BP’s record is so horrific, and despite deaths and injuries that continue to occur, nothing’s changed,” said Buzbee.

The Texas City plant was also the location where 15 employees were killed and dozens more were injured in a 2005 explosion and fire. BP paid a $50 million fine for that incident, and OSHA has proposed another $87 million in fines for failing to make safety upgrades required under a settlement agreement.

What do you think of the jury’s verdict? Let us know in the Comments Box below.

Imagine this: One of your employees complains that a customer’s perfume made her so sick that she needs permanent and total disability benefits. We’re not making this up: It actually happened.

Carol Ervin was an administrative professional at Richland Memorial Hospital in South Carolina. Part of her job was to greet hospital visitors and new patients.

One day she was exposed to perfume worn by a hospital visitor. Ervin claimed that exposure aggravated and exacerbated a preexisting condition (asthma) to such a degree that she became permanently and totally disabled.

The hospital argued this wasn’t a case for workers’ comp benefits because Ervin’s exposure in the workplace was no more than what she experienced in the general environment.

A workers’ comp commissioner who heard her case said Ervin had suffered a compensable injury by an accident arising out of and in the course and scope of her employment because her preexisting condition was aggravated and exacerbated by her job. She was found to be permanently and totally disabled, and her employer was ordered to pay a lump sum award and for related medical treatment for the rest of her life.

However, a workers’ comp Appellate Panel reversed that ruling, which has now been upheld by a trial court and an appeals court.

In the most recent decision by the appeals court, it noted that the South Carolina Supreme Court has ruled that for an injury to have arisen out of employment, the hazard has to be unique to the workplace and not common to the general environment.

Since Ervin testified that she had or could have had reactions to perfume at church, the grocery store, a restaurant and department stores, the hazard was exceedingly common, and the injury didn’t arise out of her employment.

What do you think of the court’s decision? Let us know in the Comments Box below.

Ervin v. Richland Memorial Hospital, Court of Appeals of SC, No. 4636, 12/8/09.

Ever face an appeal in a workers’ comp case? Then you know it can take a long time. But here’s a case that’s been in the courts for 27 years, and it isn’t over yet. And the injury was to the worker’s little toe.

Kirk Jacobs injured his toe in a work-related accident in 1982. He received workers’ comp benefits for a number of related conditions for many years, including for treatment of chronic abdominal pain.

What, you say? How is a toe injury related to abdominal pain?

Five months after his toe injury, Jacobs had an allergic reaction to an antibiotic used to treat an infection which had developed in his right foot. The reaction manifested itself as colitis and nerve damage which left Jacobs with severe chronic pain, according to his account.

But wait, there’s more.

In 2001, 19 years later, Jacobs sought benefits for lung problems in connection to the little toe injury. He argued that his abdominal pain required his continued use of narcotic pain medication. Because of his need for large amounts of pain medicine, he developed breathing and pulmonary problems requiring treatment.

His former employer and its insurance company thought all these claims had been settled and dismissed.

Jacobs appealed his case one more time to his state’s supreme court. In reviewing the long case history, the court recently determined that, while the claim for benefits for the lung problem had been properly dismissed, it could find no record that a final decision was ever entered regarding the chronic abdominal pain. The court has sent the case back for final review.

Twenty-seven years later, the case goes on.

What do you think about this case? What’s the longest you’ve ever had a workers’ comp case drag out? Let us know in the Comments Box below.

Cite: Jacobs v. Wyoming Workers’ Safety and Compensation Div., WY Supreme Court, No. S-08-0255, 9/25/09 (PDF).

Workers sue to be compensated for the time spent changing clothes and showering at the end of each work shift. Do they win? You be the judge.

Maintenance workers at two paper mills owned by Domtar Industries claimed their clothes, skin and hair were regularly exposed to hazardous chemicals such as calcium oxide (aka lime dust).

To reduce exposure to these chemicals, the workers shower and change after their shifts. They usually aren’t compensated for this time.

The workers filed claims for overtime under the federal Fair Labor Standards Act (FLSA).

Domtar said it has a policy that requires employees who’ve been exposed to a hazardous chemical to immediately remove any affected clothing and wash the area. The company pays employees for the time spent changing clothes and showering when they have definitely been exposed to a hazardous chemical. If that time is after their regular shift ends, they are paid OT.

However, Domtar refused to pay for time showering just because employees might have been exposed.

The U.S. Supreme Court ruled in the Alvarez case that an employee can be compensated for washing up or changing clothes if those activities are “integral” and “indispensable” to the worker’s job.

To support their argument, the employees noted:

• the potential for them to get lime dust on their work clothing and skin
• occasions when an employee was unaware that chemicals were on him until he got home, and
• times when there has been a delayed reaction to being exposed to chemicals.

The Decision

The court threw out the lawsuit. Reason: The court said the employees’ claims were based on their speculation that they may have hazardous chemicals on their skin. Their argument failed because it was based on speculation and not on evidence. It didn’t pass the “integral” and “indispensable” test set up by the Supreme Court.

What do you think about the court’s ruling? Let us know in the Comments Box below.

Cite: Musch v. Domtar Industries, U.S. Circuit Crt. 7, No. 08-4305, 11/25/09. Download opinion here (PDF).

The shareholders don’t get any money from the settlement, but they did get this: Cintas has promised a work environment that promotes safety and compliance with laws.

Specifically, Cintas has agreed to:

• provide regular written safety reports to the board of directors
• have a safety officer attend shareholder meetings, and
• implement a 24-hour hotline so workers can report safety and other suspected violations.

The shareholders stated that among their reasons for filing the lawsuit was the March 6, 2007 death of Cintas employee Eleazar Torres-Gomez at its Oklahoma City plant. Torres-Gomez fell onto an unguarded conveyor and was dragged into a 300° industrial dryer. He was already dead from burns when another employee found him 20 minutes later.

Cintas agreed to pay an almost $3 million OSHA fine in that and five other cases. OSHA had originally cited Cintas with 43 willful violations, many involving failure to guard machines and to lock out hazardous energy while employees were maintaining equipment. OSHA downgraded the severity of the willful violations in the settlement. Two Democrats in Congress called the settlement a last-minute pardon of Cintas under President Bush’s administration.

“From our perspective, the claims had no merit,” said Gerry Utter, a lawyer representing some of the company’s directors in the suit. “When one person dies, it doesn’t mean anybody did anything wrong,” Utter told the Cincinnati Enquirer.

What do you think about the lawsuit and the settlement? Let us know in the Comments Box below.

A burned out light, two identical doors and an 18-foot fall add up to a costly jury verdict for one employer.

Seattle firefighter Mark Jones was working an overnight shift at a city fire station on Dec. 23, 2003.

He woke at about 3 a.m. from his second-floor bunk to use the bathroom. Then he mistook a nearby door to the station’s fire pole for the restroom. The two doors were on the same wall, six feet apart.

He fell 18 feet to the first floor. He wasn’t working at his usual fire station that night.

A safety light that normally illuminates the fire pole alcove had burned out. A chain that would have restricted access hadn’t been latched.

Jones suffered brain and spine injuries, along with 10 broken ribs, multiple pelvic fractures and other injuries.

The injured firefighter received minimal disability benefits under the state’s pension system. He’s unable to work any sustainable job.

He sued the city, and a jury awarded him $12.7 million.

Since the accident, the department has installed reflective tape around fire pole shafts and protective glass doors with special handles that don’t open unless they’re pushed in.