Safety and OSHA News

Worker breaks leg while turning around, gets comp

x-ray

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.

Print Friendly

Subscribe Today

Get the latest and greatest safety news and insights delivered to your inbox.

Comments

  1. SafetyMan says:

    The dissenting judge had it right but, of course, he was in the minority. The majority rule “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” is ludicrous. They are saying that any non-work related, pre-existing condition, if exacerbated at work, falls into the employer’s lap. The beat goes on….

  2. This ruling was as expected based upon the events as they are stated. Do not see any reason to disagree.

  3. I think the bottom line is that she was performing her job duties when the injury occurred. It shouldn’t matter if the injury is of the type that “could happen anywhere”.

  4. Greg Dobson says:

    I’ve seen this type of situation many times. Workers’ Comp was established to protect employees from companies who knowingly exposed workers to dangerous tasks with no concern for their safety or health. Much like OSHA regulations. However, employees have learned the loop holes and now, in many cases, use the system as a “catch all” insurance policy to cover injuries which the employer has no direct influence over. It would be unreasable to assume that when standards, regulations, and laws are established, those involved would with writting these requirements could not have missed an important detail which would allow for abuse of the system. That is why these standards, regulations, and laws must be examined periodically and revised to prevent such abuse.

  5. William J. Quirk says:

    At least get a photo of a broken femur. I believe the broken bone shown in the above photo of an x-ray is the fibula, part of the lower leg.

  6. McGuyver says:

    In Michigan, you have to have an “event” which occurs “at work” while “in the course of employment” that results in a “change in pathology” in order to be considered compensable under Michigan Worker’s Comp Law. However, this is rarely the case. Unfortunately, I had a worker pass out due to a personal health issue, fall and injure her knee, hip and shoulder. Our company paid for everything. We also had a guy who used to race cars suffer a shoulder injury at work and we had to pay for that even though his condition was caused by the driving, not his job. Also had a gal try to cut her finger off because she was financially strapped and wanted the lump sum payout, she didn’t succeed and I had the pleasure of placing her in a restricted job shredding paper in front of her peers. But we still had to pay for everything. My comment is this…just because an injury occurs at work should NOT make the employer responsible for lost wages or medical expenses. Unfortunately again, employers are being held liable for employees poor health. Sadly, even though this employer was probably aware of the past accidents this woman had been involved, what could they legally do to protect themselves?…nothing…The EEOC and the ADA will protect them. Get out your checkbook!

  7. Don Vietz says:

    When we hire someone to do a job, we hire them as a whole being, no matter what their handicaps may be, they are still a whole being. We have hired them because we have felt they can do the job.

    If their performance has been acceptable, and they have contributed to a monetary increase of any enterprise, they are worthy of all compensations.

    Now let’s treat them as we would anyone else, not trying to negate our responsibilities.

    I know this is far seen today, but there is something far greater than the (ALMIGHTY DOLLAR) or have we forgotten that too!

    Have a great day. Don Vietz l

  8. I agree with the dissenting judge. Not every injury that occurs at work is the fault or responsibility of the employer.

  9. cicconi says:

    Are you kidding….what was the cause of the injury…her turning around…and what about her past injuries…no bearing on the case….typical of our courts.

  10. Problem is with ADA laws etc. employers are forced to hire persons that might be fragile and thus increase the exposure to injury or illness and the bottom line is it is costly. Don’t hire and get sued, hire and increase your work comp bills. Companies aren’t allowed to make these decisions internally, government does it for them and thus costs run many small companies out.

  11. Chuck C says:

    Is it any wonder that this country has the problems it has?? Employers are not legally allowed to inquire about previous medical conditions unless medical condition is a condition of employment. Once the person is hired you get what you get. Some states do allow the employer to benefit if pre-existing injuries or conditions retard the healing of an injury. These injuries/conditions could include arthritis, diabetis, etc. But the fact of the matter is that the injury occured while at work and the injured worker did not apparently violate company policy or deliberately cause harm to herself, therefore the injured worker should be eligable for workers’ compensation benefits.

  12. John Franklin says:

    Sadly, this is the very thing that causes Worker’s Comp rates to skyrocket, employers unable to keep their recordables down ending in disqualification for job bidding purposes, increases the number of frivolous injuries that employees can carry from their home to their workplace, just so they can get paid while in therapy and being laid up.

    Although many cases are created by poor workplace conditions, when an employee sees how easy they can get compensated by their company, they bring their personal ailments to work. Even minor aches and pains become a huge time and money consumer for employers.

    When will a government entity be created to protect the Employers? When will this entity be equal to Worker’s Comp decisions.

    Too much parade and fanfare given to those who get away with false claims. The crux of this is the doctor’s testimony was given too much credibility. They should have made sure his diploma wasn’t bought on e-bay.

  13. This will be the impetus for employers requiring physicals as a condition of employment, just like drug screening. I wonder if I stabbed myself with a knife at work intentionally if I could get worker’s comp for it.

  14. I agree with the dissenting judge, it should not be covered, no work related event or work condition nor any aggrevation of any pre-existing condition contributed to this incident.

    Making this injury covered would be the same as covering someone who has a heart attack at their desk at work.

  15. Well the employer was happy to have her work more days then she was suppose to so could fatigue
    played a part in this? On the job injury I thought that is what the insurance is for.

  16. A number of factors contributed to the injury, and I would have to agree with the majority that the accident was covered. This injury occured on the job, during the performance of her duties. It does not appear to be something that happened over the weekend and was then brought to work. At 74, the body is wearing out and these type of accidents can occur as pointed out, “anywhere”. It so happens that it happened at work. These kind of “accidents” is what insurance is about. I would much rather be able to inquire about past medical history, require a physical, etc, etc but that is discrimination! I’m impressed by a work ethic that you don’t see in people half her age!

  17. John Franklin says:

    The thought processes of what “On the Job Insurance” (ie Worker’s Comp) is about, is in line with the current views of a Socialist Republic.

    The truth of the matter is, the Employer should not be “dinged” with this type of injury. The employer should only be cited if they had caused the injury through some form of negligence on their part. Granted, this individual was hurt while they were working, and since the company is at the mercy of non-discrimination laws, they had to allow this employee to work the hours that another younger employee could work. Companies have a real burden caused by liberalism.

    These type of injuries only bring about more hardship on already struggling companies and have driven many of them out of business from ignorance of lawmakers and at the delight of the insurance companies.

    The previous injury caused limitations in the employees abilities. The doctor did his job, the doctor got paid, the employee received a small fortune, the unsuspecting company got the blame, lawyer and expert fees, a higher insurance rate, and the possibility of shortening the life of the company she worked for resulting in many more lost jobs.

  18. The dissentying judge was right on. This did not arise out of and in the course of a job function. She could have turned any where, at home, on the street, or in the grocery store. If she turned to miss getting hit by a flying bedpan then ok. The event has to be uniquely different then from the actions of the general public. Walking and tripping on a shoe lace should not be compensible just because they were on property and on the clock. Tripping on a cat walk, yes. The court need to be more fair and hold the claimants responsible for their actions.

  19. Lee O'Neill says:

    She was performing her duties when she was injured, the same as if an employee trips over a file drawer. You can whine about it but that’s the bottom line.

  20. What is wrong with you people who would deny her coverage.

    Sorry you broke your leg on the 6th consecutive day of work Gramma, maybe we can drop some dog food off for you if we get the time.

    She was doing her job, she came in when you asked her to, she wasn’t negligent or acting in a dangerous manner but you would still deny her coverage because of what reason? How un-American, un-Christian of you to support business and insurance companies over a hard working old lady. You should be ashamed.

  21. John Franklin says:

    The burdens of managing people who work, should only go as far as wrongdoing by a company. This is one purpose of personal insurance, and savings for deductibles.

    Contracting colds, having heart attacks, breaking legs due to previous personal injuries, losing your hair, psychiatric treatments, cancer, and plain old anxiety stress related problems created by not living properly due to hard work schedules is not something that should be covered by worker’s comp.

    If people believe that these all ought to be covered by the company they work for, then all companies will pay less to employees and charge more for their products to compensate for this additional service.

    This is still America and until there is an actual health care plan that works for everyone (and not at the expense of the companies) we will have to endure frivolous claims based on personal health issues.

  22. Would it change any of your minds if the injury was not to a leg, but a pulled muscle in the back? My point being, if it were a strained back, I don’t think there would be any question if this was a work related incident, nor would there be an article. So, in my opinion – this article is marketed only because she has previously been injured off duty. If she was placed back into full duty status, without restrictions, there is no question it is a comp case, with all due respect to the dissenting judge…simple as that…

  23. E. Toledo says:

    I think what this case is missing is balance. Yes the injury happened at work, so workman’s comp should have some liability, but her personal insurance should also be labile in part due to the pre exiting conditions she had. Not hiring her would have been out of the question and as for her filling in for others, she could have said no. We sometimes like to put off responsibilities off on others instead of bearing the consequences of our actions.

  24. SafetyGoon says:

    If workers compensation is set up currently to, at least in theory, help protect workers from wrongdoing by their employer, I have to ask myself, what did the employer do wrong here? Did they not give her proper training? Did they create some kind of physical hazard or not correct an existing physical hazard? Basically, what could the employer have possibly done to prevent this type of accident? Was she hurt on the job? Yes, no question. Was she hurt by the job? It sure doesn’t appear so. It seems to just be a luck of the draw situation that it happened while on the job. The only way that I see this as legitimate is if it’s conclusively shown that the injury occurred as a result of having worked 6 days in a row, thus causing fatigue enough to lead to a broken leg. Either way, I sympathize with this individual who genuinely wants to work (as evidenced by volunteering to cover others shifts) and now cannot.

  25. Diane Brown says:

    Workers Compensation is set up to be a no-fault system. It is not set up to prevent wrong doing from an employer-it was developed to prevent long and protracted legal battles. Workers give up their right to sue (except in the most egregious of cases) in exchange for medical costs and some wage replacement. Each state has its own law and legal requirements-some states allow for a reduction in benefits or denial of a claim based on certain pre-existing conditions, some do not.

    In this case, the judge determined that the injury occurred in the course of performing duties, with no horseplay or wrong doing by the employee. If the employer had concerns about this worker being to perform duties, then she shouldn’t have been given an extra shift to work. Previous injuries may create an ADA accomodation, but that doesn’t appear to be the case here. Therefore, the ruling is correct.

  26. Lynn Corrall says:

    I have to agree with the judge. This employee was clearly within the course and scope of her employment when this injury happened. She was doing a part of her job, that being delovering meds to a patient. When she pivoted to get the glass of water she was doing part of her job duties and therefore was within the course and scope of her employment. Just because she has a pre-existing condition does not have anything to do with the fact that she was injured. Yes, she may have been more prone to this type of injury given the fact that she had so many previous issues but she was doing her assigned job and that makes it work related.

    The ADA really had nothing to do with this particular issues given the fact that she was 74 years of age and was working her 6th consecutive day in a row. She was obviously qualifed for her job and her perceived disability really didn’t cause any issues or she wouldn’t be doing this type of work in the first place.

    It seems that we often try to pass off injuries such as this to a pre-existing condition so that we don’t have to pay for them under compensation. We are all guilty of it but in the long run there are cases that are truly compensable and in my humble opinion this is one that qualifies as a bonafide on the job injury that should be properly compensated by her employer. I too believe that the court ruling is the correct one!

  27. Jody B. says:

    The article states, “In fact, she was working for the sixth day in a row, although she was supposed to work only four days a week.” It does not say if this was a doctor restriction or company decision, but it was ignored nonetheless. Observing this work rule likely would not have prevented the injury, but it leaves the question out there. I suspect the treating doctor who released her back to work status would have a very good understanding of her duties since her job was health care related.

    Based on previous rulings by courts, an injury at work is generally compensable, even if it was a previously sustained injury (perhaps not even work-related) and was aggravated in the course of work duties. In this case, the court seems to have ruled consistent with precedent.

    I just think the balance is being tipped beyond reason when there is little recourse for the employer (without fear of litigation) to re-assign or terminate workers whose physical health has deteriorated over time to the point they become a liability in the workplace just by doing everyday activities, like walking.

  28. I still say that if this lady had herniated a disk, or pulled a shoulder muscle, we would not be having this debate. The only difference is body part…

Speak Your Mind

*