Worker injured when he fell over in his chair: Does he get workers’ comp?
December 5, 2011 by Fred HosierPosted in: Bizarre Accident of the Week, In this week's e-newsletter, Injuries, Latest News & Views, Special Report, Workers' comp
PDF 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)
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Tags: fell over in chair, Fitzgeralds casino, in scope of employment, Nevada, personal comfort doctrine
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December 6th, 2011 at 9:12 am
He was at work doing his job. Pay him!!! If an illegal can get millions for a broken leg then this person should receive workers compensation for his injuried. This would not be an issue if the worker had been an illegal minority!!!!
December 6th, 2011 at 9:24 am
Great call by the court so far, let’s see if they give a proper denial to this claim.
Despite popular opinion, WC was never intended to be socialized medicine where anything and everything that happens at work is work related. The system has been abused by countless employees and by courts for far too long.
In this case we have a worker paid to sit all day, and they can’t even do that right. Complete negligence on the employee’s part. The employer provided a workplace free of recognized hazards, provided a good chair, and this guy still manages to get hurt.
It seems obvious that he would not have been propped up like that had his boss been in the room, most likely he was fixing to take a nap while on duty. You certainly cannot properly monitor all of the TV screens while kicked back in your chair with your feet up.
Far past time for some personal responsibility. Hopefully this guy will pay for his own action, but the Supreme Court should have just denied the claim altogether and not sent it back to the other court.
December 6th, 2011 at 10:36 am
The average person does not sit all day, someone who is paid to do so is at higher risk for sitting injuries. Did the company provide a chair compatible for that kind of use? One that provided for not only the comfort of the employee, but also for his safety including proper blood circulation? A solution for the company would be to get the employee out of his chair at regular intervals to walk around. Rotating monitor watchers also improves the quality of security.
December 6th, 2011 at 10:40 am
Well said Eric, way past due for some personal responsibility!
December 6th, 2011 at 12:19 pm
I am sure the job description requires alert continuous surveilance so propping his legs up on the desk invites inattention and dozing off. He should stand upright every hour to maintain circulation for his legs and to help his back. If the job descriptions doesn’t specify - then he should be paid WC.
December 6th, 2011 at 12:24 pm
I also agree with Eric Says.
Let’s put it this way: if the injury happened at a friend’s house, would the friend’s liability insurance pay Mogg’s medical bills? How about if he was a customer who fell while putting his feet up on a one-armed-bandit?
Also, was this an identified hazard? If so, why wasn’t there a formal evaluation by a sitting expert and an ergonomist, a formal daily inspection criteria for the chair to assure proper functioning, etc.? (Sarcasm) Of course it was not something which was identified, because desks are not footstools! Other surveillance officers knew this, so I’d have to guess (from the limited information in the above article) that Mogg would have known this as well.
December 6th, 2011 at 1:49 pm
Nothing wrong with standing up and walking in place to get the blood flowing. This seems like he was going to/or was already napping.
December 7th, 2011 at 2:46 pm
I am curious on what is keeping him from going to work, sitting down and watching TV
December 7th, 2011 at 5:21 pm
Excellent point Jason.
Even if propping your feet up is acceptable, an employee who cannot do that without falling out of his chair and getting hurt is not worth having in the first place, and should be held responsible for his ineptness. Most likely he was falling asleep or already fast asleep to fall out of his chair.
This certainly was not part of his assigned duties and he was not acting within the scope of his emplyoment.
January 3rd, 2012 at 11:21 am
Come on now what office furniture is designed so you can put your feet on a desk? This is silly personnel comfort by putting feet up on your desk?
The courts need to stick to their guns on this one it is insulting to those of us who have to monitor safety in the work place.
January 17th, 2012 at 11:16 am
Eric you nailed it. If this bozo can’t sit and do his job there must be a line a mile long to take it. We have become too soft in the accomodation department and have forgotten the definition of work.