Safety and OSHA News

Took a break to stay alert, broke hip: Does worker get comp?


An employee broke her hip while on break. What factors did the court use to determine whether she was eligible for workers’ comp benefits?

Mary Hudak-Lee was a unit secretary at Baxter County Regional Hospital in Arkansas. On New Year’s Eve in 2007, she received a call asking if she could work the 12-hour night shift from 7:00 p.m. to 7:00 a.m., even though she was on vacation.

She agreed and for the first 4.5 hours of her shift she performed her normal clerical duties.

At 11:30 p.m. she was asked to provide one-on-one observation of a suicidal patient.

After observing the patient for three hours — 7.5 hours into her shift — a co-worker offered to relieve her for a short break.

Hudak-Lee went outside to revive herself in the night air. She was sleepy because she woke up early that day because she wasn’t scheduled to work.

While walking back toward the hospital’s entrance she fell and couldn’t get back up.

Emergency room personnel x-rayed her hip and discovered it was broken. She was taken to another hospital and immediately underwent hip replacement surgery. She wasn’t able to return to work until May 5, 2008 — over four months later.

Hudak-Lee applied for workers’ comp benefits.

Winding road to state’s highest court

The Arkansas Workers’ Compensation Commission denied her request for comp benefits. The Commission ruled that, at the time of her injury, Hudak-Lee was on break and not advancing the interests of her employer.

Hudak-Lee took her case to the Arkansas Court of Appeals, which overturned the Commission’s decision. The appeals court ruled that Hudak-Lee was performing a function that advanced the interests of the hospital.

The hospital and its insurance company appealed to the Arkansas Supreme Court, calling Hudak-Lee’s time away from the patient’s room “a lunch break.”

The state’s highest court said the Commission failed to properly determine whether Hudak-Lee was advancing the interests of her employer at the time of her injury.

The court noted:

  • Hudak-Lee had been called to work a 12-hour shift on her day off
  • part of the way through the shift she was asked to sit in a darkened room to keep watch over a suicidal patient
  • she’d been awake for over 20 hours at the time of her injury because she hadn’t anticipated working that night
  • in the patient’s room there was no TV, telephone, magazines or anything else to help Hudak-Lee stay awake
  • her purpose in going outside was to revive herself to she could complete her shift, and
  • she was walking back toward the hospital’s entrance to return to the patient’s room when she fell.

In its decision, the court wrote, “Clearly, at the time of her injury, [Hudak-Lee] was advancing the interests of her employer.” The court ruled that she should receive workers’ comp benefits.

(Hudak-Lee v. Baxter County Regional Hospital, Supreme Court of AR, No. 10-212, 3/3/11)

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

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  1. James Baldridge says:

    The courts decision was correct. Baxter Memorial is a 268-bed hospital directly north of Little Rock near the Missouri border. There should be some consequences for hospital management for deciding to treat an employee this way; it’s shameful.

  2. John Singer says:

    No question – the Court was right.

  3. Most definitely agree with the court’s decision!

  4. I agree 100% with the decision of the court.

  5. Amazing, absolutely amazing. Here we have an individual that was injured while at work; was eligible to work; apparently didn’t falsify her application; was working; was apparently clocked in; wasn’t involved in some kind of mischief; wasn’t on drugs; wasn’t using a tool improperly; and they have the audacity to disallow this? Absolutely amazing.

  6. Clearly she was at work, and if that were the only question, she should be paid and it should be a recordable incident. The question to be asked of the doctor: Did she fall and break her hip or break her hip then fall? If she had osteoporosis and the doctor could say that the act of walking had no aggrevation of an injury, then it would not be work related and her medical costs should be paid out of her insurance and pocket.

  7. Perhaps it was a little irresponsible for the worker to agree to work a 12-hour midnight shift when she was obviously not prepared for it. I’m just saying…

  8. I think the root of the denial of the WC claim is that most Hospitals are heavily lawyer-ed up. They are very able and very willing to file claim and counter claim if it will save them a nickel in benefits or payments and very willing to sue folks if they think it will net the Hospital any money. I have no doubt that if you could see the original WC paperwork, it was probably a masterwork of legal justifications for not being liable.

  9. PO'd Safety Guy says:

    I agree with the court ruling she should be paid comp. If I read this right, she worked 7.5 hours before she had an opportunity for a break. Most states have laws against working that long with a rest period.

  10. PO'd Safety Guy says:

    I meant to say WITHOUT a rest period. I’m going to take a break now.

  11. Absolutely never should have been denied in the first place and I can’t believe the hospital had the audacity to appeal to the State Supreme court. Gives Risk Managers a bad name…

  12. The management of shift work can be difficult these days as more employees require time off for reasons that even 15 years ago were of no concern to the employer. If your child was sick, you better find a sitter and make it to work. In todays world, you can expose yourself and your company to many liabilities if you don’t allow employees the time off they require. Unfortunatly, this puts a strain on fellow employees and management to find ways to keep the “office”, “factory”, “store”…. what have you, open and operating, often requiring other people to make up the difference. Asking an employee to work long and extra hours and then even considering not compensating injuries obtained while working those hours is ludicrous. I have no idea how or why this case would have to go all the way to the state Supreme court. I completely agree with the final decision of the court. The hospital and it’s insurance company probably spent more money in attorney fees and wages for depositions and such, than what the woman was seeking in compensation. Go figure!

  13. What we don’t see in this story is where, and how, she fell. Were there other parties that could have been held accountable for the injury? Was she taking a “shortcut” thru a place she did not belong? Just based on the information in this story, the court was correct, but I would like the whole story before I call out the hospital for wanting to deny the request.

  14. it’s not bad enough that the hospital alone was willing to screw one of it’s own,
    their insurance company partnered/ganged up with them against this lower level employee,
    who was very seriously injured [immediate hip surgery/replacement];
    it gives me warm fuzzy feelings all over knowing our health care is in the hands of a great team like this.
    thank god for the sanity of their supreme court.

  15. Robert Chambers says:

    It does not matter whether or not she was taking a shortcut, she was on the clock and returning to the patient’s room. She should get compensated for her injury and also for the monies she had to put out to recieve the compensation due her.

  16. One potential circumstance under which I could see a gray area would be if she had bone density problems that caused her hip to break thus causing her fall (unrelated to her work schedule etc.) This could have happened anytime and anywhere. (It would have been caused by a preexisting medical condition she had.) Hopefully this was considered and checked. Was there any notation as to what caused her to fall, a trip, a mis-step, or what?

  17. But it does Robert. If she put herself in jeopardy with a willful neglect of the rules, she should not be entitled to compensation. But what you really missed in my post is that WE DON’T KNOW ALL THE FACTS.

    But like I said before, for what we are told, she would be entitled.

  18. Victor Jiannine says:

    The court was right. What other bills is the hospital trying to get out of paying? Did Hudak-Lee have her legals bills covered in the ruling?

  19. Sonia Micek says:

    This employee fell on their property during the course of her work…we can quibble about OSHA Recordability, but compensability should be a foregone conclusion. Had she been allowed her day off and not asked to work a 12 hour shift unexpectedly (sleep deprived) she would not have fallen. What if she had fallen asleep during her “watch” and the suicidal patient had successfully ended her life? She would have been terminated and probably hauled up to court in handcuffs for a highly publicized lynching….The whole scenario was unsafe.

  20. Response to Kim. Since there was no mention in the report, that we got to read, about bone density, I’m convinced that was not an issue. However, if she had a bone density issue or other existing conditions such as diabetes that would cause the fracture to heal at a slower rate the hospital would or should be penalized at a lesser amount because of the pre-existing condtion(s).

  21. I have a son in law who is a Orthopedic Surgeon. While he was going through residency the hospital required him to work the maximum allowable hours per week, clock out and continue until the work was done. Think about the last patients that he saw and the quality of care that they might have gotten. My daughter is going through nursing school and were told that if they missed two classes in a semester (even if sick) they would be dropped from the course. What kind of signal is this sending? Go to work sick and spread the illness to the people who are already sick. Here is another legal kicker. Once the nurse accepts her assignment for that shift she/he is responsible for everything on that assignment that happens or fails to happen. My daughter’s class was instructed to never accept a workload beyond a given number of patients. Once accepted they cannot go home even for an emergency until their assignment is complete or they can get someone to cover for them.

  22. Tom Tunnell says:

    It doesn’t really matter why she fell. She was injured on the job while on the clock. She was performing her duties above and beyond the call of duty. She was trying to ensure she was performing her duties to the best of her ability. She deserves compensation and not the cold shoulder of the big corporate world.

  23. To Tom Tunnell…. Any good investigation must be able to answer the question of WHY. If you don’t, you are not doing anyone justice. The answer to WHY can have a major impact on who should be held accountable, either the Company, or the injured individual.

  24. Quite frankly, I’m shocked that her employer and the insurance company would even question the compensability of this accident. Sometimes as an employer you have to make sure your carrier isn’t missing the forest for the trees. This should never have been a litigated case.

  25. As I see it she was walking and fell. How is it the hospital responsibility for her to pick up her feet and watch where she is going. She was not doing any physical activity for the hospital. I could see if she was required to lift something and got hurt but she was walking for petes sake. Come on people have to take some responsability for there selves.

  26. Workers’ Compensation is insurance for folks injured at work and nothing further. Just like your automobile insurance covers accident in your car and homeowner’s insurance covers misshaps that happen to your property and on your property. Whoever the author was that suggested that the lady fell because she didn’t pick up her feet is missing the point. Nothing in the report stated that she fell intentionally — it was an accident that happend at work for crying out loud.

  27. Sounds like the rehab was pretty slow. She should have been paid for her injury and how about her stress of not getting anything from workers comp for 3 months. of course the age was not mentioned or what she tripped over.

  28. Before everyone gets to mad at the hospital, there is an point I would like to make: The reason it could have been questioned is because the employee was on “Break”. There is an area that states if the employee is on break and not doing a job function then it would not be work related….. Example if an employee is on lunch and goes into the lunch room and cuts his hand on a knife resulting in stitches… that not work related. This could possibly be why the employer/ hospital denied the claim. The artical does not tell you how she fell, but I think that it made a good argument for the employee that she was working in the best interrest of the company…. I believe the decission was fair. Obviously she didnt intend to work, and any suicide watch that Im aware of is done with breaks every two/ 3 hours, so clearly there was a problem here.

  29. Well said, Wes. I never understood why a clumsy accident has to get charged to workman’s comp just because the person is physically at work. If that’s the way the law is, it should be changed in my opinion. If you don’t think so, it’s probably because you’ve never tried to run your own business.

  30. So if your not at work and are walking down the side walk and fall are you saying someone else should pay for it. Like I said earlier people have to take responsibility for themselves. The nurse was not working in an unsafe enviroment she fell. Don’t know why, I’m sure the hospital didn’t trip her. Next thing you know people will get hurt on the way to work or going home and there will be a claim. Wait if you provide a vehical they can already make that claim. Do people realize for every claim that is made against an employer they raise the rate. You can put a company out of business with these claims like I said before “for not paying attention”. Yes I’m bitter, I have had these same kind of claims against my company that haunt me for years.

  31. PO'd Safety Guy says:

    Daniel – We had a 20 year old kid here trip over a pallet because, by his own admission, he wasn’t watching where he was going. He was diddly-bopping along waving hey to his buddies and down he went. Out for 4 months for arm and shoulder injuries. In NYS, he’s on the job, walking from one department to another as part of his duties so therefore it’s compensable. I believed he was milking the cow big time on this one so I fought to get him back to work. What an ordeal – doctor’s do not like to release people to work unless they are 100% recovered. I, along with our insurance company, finally got his doc to release him to work with restrictions. We brought him back and he was counting inventory. After a few days he just didn’t show up any more so we canned him. Comp in NY is all about the employee. Sometimes it’s justified, but many times it is isn’t. I, too, think the law should be changed.

  32. Wes – You are totally missing the point of worker’s comp. It is a NO FAULT system. Sure there are times we end up paying an employee for his own carelessness, but the flip side is that employees are barred from filing a tort claim for tripping over that crack in the floor, malfunctioning piece of machinery, or whatever they may otherwise allege caused their injury.

    The nightmare of defending one tort claim after another would be far more likely to keep me up at night than the few WC claims they file as a result of their own carelessness.

  33. The employee also could have said “no, I’m not coming in on my vacation because I have not prepared myself to be working all night”.

    If I call an employee and ask them to work the graveyard shift and they agree, i am expecting them to show up rested and able to safely perform their duties.

  34. Agreed with Mr. Jason. Employee should also be equally liable for her damage in this case.
    If companies have to be liable for all willful mistakes of employees, no wonder companies/factories will go for outsourcing.

  35. Most states cover break times under WC. I’m not sure about Arkansas, but in Texas, they’re covered under the “personal comfort and convenience” doctrine. Heck, even a lunch break would have been covered if she never left the premise based on what’s commonly known as the “coming and going” rule or “ingress/egress doctrine.” I’m surprised this was denied.

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