There’s no doubt that this employee was injured while working. Despite that, a court found the injury didn’t arise from an actual risk of employment. Here’s why:
Woodrow Nelson worked as a utility supervisor for the Town of Christiansburg, VA. His duties included marking the location of utility lines. Nelson would reach into below-ground meters and clip transmitters onto them. Then he’d use a receiver above ground to walk and mark the utility lines with paint. After marking the lines, he’d reach back into the meters and unclip and transmitters.
One day, Nelson was kneeling on the ground with his backside on his heel bones and had been in that position for a minute or two. As he rose, Nelson turned to his right to go to his truck. As he twisted to his right, “something popped” in his back and he fell to the ground. At the time, Nelson had several tools in his hands: a transmitter, a receiver, a meter box puller and a ground rod. The tools weighed about 11 pounds.
Nelson sought workers’ comp benefits for medical and temporary total disability compensation for a two-month period. A deputy commissioner said Nelson hadn’t proven his injury arose from an actual risk of his employment and denied his request. The Virginia Workers’ Compensation Commission affirmed the decision, finding that the evidence failed to establish any work-related risk or hazard resulted in injury. The Commission said Nelson merely rose from performing a normal work duty while in a squatting position.
Nelson appealed to a Virginia court.
The actual risk test
Nelson argued the Commission was wrong when it said no work-related risk or hazard resulted in his injury.
Virginia uses “the actual risk test” to determine whether an injury arises out of employment.
Under this test, an injury arises out of employment “if the manner in which the employer requires the work to be performed is causally related to the resulting injury.” The hazard must be particular to the work and not occur in common everyday life. A Virginia appeals court previously ruled, “The mere happening of an accident at the workplace, not caused by any work-related risk or significant work-related exertion, is not compensable.”
Nelson claims his injury was compensable because the body positions and movements required by his job were a hazard he wouldn’t have been equally exposed to outside of work.
But the court wasn’t convinced. In a previous case, an employee suffered a back injury after lifting tray which weighed ten pounds or less, twisting and bending to put the tray on a cart. The employee was denied workers’ comp benefits because the “simple acts of walking, bending, or turning, without any other contributing environmental factors, are not risks of employment.” The court said bending over is a risk to which the general public is equally exposed.
Nelson acknowledged that he wasn’t in an awkward position when he was injured. But he argued that his case was similar to others decided by the court where comp benefits were awarded:
- A pipe-fitter working in a crouched position several feet off the ground reached for an eight-pound piece of pipe and ruptured a disc in his back.
- A knitting machine operator was responsible for replacing empty baskets of yarn located on her machine about two inches off the ground. She repeated this task, which required deep-knee bends about 200 times in a 12-hour shift.
The appeals court said both of these cases were different from Nelson’s. The crouched position of the pipe-fitter and repeated tasks performed by the knitting machine operator were unique demands of their jobs not found in everyday living.
For those reasons, the appeals court upheld the Commission’s decision that Nelson merely rose from performing a normal work duty while in a squatting position and wasn’t exposed to any work-related risk or hazard. Therefore he wouldn’t receive workers’ comp medical or wage-replacement benefits.
Some other Virginia workers’ comp cases we’ve written about where the actual risk test came into play:
- A worker was found bleeding from the head but couldn’t remember how he was injured. The worker didn’t receive comp benefits.
- A restaurant worker was taste-testing a new menu item, when he choked on a quesadilla, suffering a perforated esophagus for which he needed surgery. The court found choking on food didn’t arise out of his employment, so he didn’t get workers’ comp benefits.
- A manager at a dollar store caught her foot on a stack of boxes. She fractured her femur and needed surgery. The court ruled the stack of boxes was a hazard that was particular to her workplace, therefore she received workers’ comp benefits.
Several states, including New York, use the actual risk test.
What do you think about Nelson’s case? Let us know in the comments.
(Woodrow W. Nelson v. Town of Christiansburg, Court of Appeals of Virginia, No. 0313-17-3, 10/3/17)