A security surveillance agent monitoring 38 video screens started to put his legs on his desk to revive circulation. His chair tipped over and he was thrown to the floor, sustaining injuries. Will a court allow him to get workers’ comp for those injuries?
This case involves Gary Mogg, an employee of Fitzgeralds Casino-Hotel in Nevada. Mogg was a so-called “eye in the sky” security worker for the casino. Fitzgeralds denied his workers’ comp claim and Mogg appealed.
An appeals officer reversed the denial, and a district court turned down Fitzgeralds’ request for an appeal hearing. The casino then took its case to the Nevada Supreme Court.
The state’s highest court said there were two issues in this case:
- whether Mogg’s injuries arose out of and in the scope of his employment, and
- whether putting your legs on your desk was something that Fitzgeralds barred “by implied prohibition.”
Did he face a greater risk?
For a case involving something as simple as putting your legs on your desk, this gets a little complicated. Here’s how the Nevada Supreme Court broke it down:
There was no evidence that Mogg’s chair was defective, according to the court. Also, falling over in a chair while trying to reposition yourself isn’t “an obvious kind of injury that brings to mind an industrial injury.”
Since the fall didn’t happen because of employment conditions, the next test is to determine whether the employee was at increased risk of falling compared to the risk faced by the general public. This test would determine whether his injury arose out of and was in the scope of his work. If the risk wasn’t greater, then it wouldn’t be covered by workers’ comp.
As it turned out, the appeals officer didn’t determine whether Mogg faced a greater risk than the public. But there’s more.
Nevada’s workers’ comp law includes a personal comfort doctrine, which permits compensation when an employee is injured while engaged in a reasonable activity for personal comfort, such as stretching or using the restroom.
Mogg says he was stretching when he started to put his legs on the desk.
But Fitzgeralds says putting your legs on a desk was barred by an implied prohibition. If that’s the case, then the personal comfort doctrine doesn’t apply in this case.
What does that mean? For one, the prohibition was implied because Fitzgeralds didn’t have a written policy prohibiting workers from putting their feet up on their desks.
However, the casino produced several written statements from other surveillance officers who said putting feet on a desk while working was “incompatible with the job duties of a surveillance officer.”
Despite those statements, the appeals officer found putting your feet on a desk wasn’t barred by an implied prohibition.
However, it was unclear to the supreme court whether the appeals officer considered the statements from the other employees.
Now, putting it all together, the supreme court found the appeals officer abused her discretion in reaching the conclusion that Mogg’s conduct was within the course and scope of his employment.
The court sent the case back to the appeals officer to determine:
- whether Mogg faced an increased risk of falling out of the chair at work compared to the average person, and
- if so, whether putting his feet on the desk was prohibited by an implied prohibition.
This case isn’t over yet. However, Mogg has lost this round. Going into the hearing by the supreme court, he had a ruling that told Fitzgeralds to pay his workers’ comp benefits.
Now, this case is up in the air and can be thrown out for two reasons: if the risk for falling out of the chair isn’t greater at work, or if putting his feet on his desk was prohibited by Fitzgeralds.
Do you think Mogg should get workers’ comp benefits for his injuries? Let us know what you think in the comments below.
(Fitzgeralds v. Mogg, Supreme Court of NV, No. 55818, 11/18/2011)