Barton Rodr was a computer programmer for Yzer Inc, DBA Funnel Design Group in Oklahoma. When the yard crew taking care of Yzer’s property quit, the company asked for volunteers and Rodr stepped forward. He and his son mowed the lawn and manicured the yard on successive Saturdays, in preparation for the festivities at Automobile Alley, the historic district of downtown Oklahoma City. Barton, a salaried employee, was not paid for the work; his son received $40.
On July 18, 2009, Rodr was putting away the lawn mower when he suffered a heart attack. He was 36 at the time. A workers comp judge awarded him benefits, determining that the injury occurred in the course and scope of employment. A three-judge panel affirmed, but the OK Court of Civil Appeals reversed, opining that Rodr’s lawn work bore no relation to his primary job as a programmer.
The OK Supreme Court has ruled in favor of Rodr. Despite his performing volunteer work out of class and on the weekend, he was still an employee of Yzer, as the yard work met the primary test of employment: it furthered the interests of his employer.
In its defense, the company pointed out that the heart attack was caused by a pre-existing conditon: Rodr was overweight, a smoker, with a family history of heart problems. From the perspective of (very distant) consultants, we are tempted to ask: why did the company allow this employee to volunteer? Despite his relatively young age, he worked at a sedentary job and displayed risk factors that precluded his doing physical work. Speaking as a weekend mower, I can certify that the task is strenuous and noisy (less so for my neighbor who sits calmly on his riding mower, listening to music through noise-canceling headphones).
Volunteer vs. Employee
The court has ruled that an employee who volunteers is not a “volunteer.” OK law defines a volunteer as “any other person providing or performing voluntary service who receives no wages for the services other than meals, …therapy…or reimbursement for incidental expenses.” An employee is not “any other person.”
This is no small matter, for Rodr or for Yzer’s workers comp insurer. The unfortunate Rodr is permanently and totally disabled. He is unlikely to work again. He is currently surviving on a mechanical heart and will need a transplant soon. Given Rodr’s age and medical expenses of significant magnitude, this claim is likely to reach seven figures.
The lesson for employers is clear: saving a few bucks on physically demanding jobs is not worth the risk. An overweight smoker with a family history of heart problems does not belong within ten feet of a lawnmower. When your lawn crew quits, just go find another one.
Thanks to WorkCompCentral (subscription required) for the heads up on this case.
Posts Tagged ‘pre-existing conditions’
Annals of Compensability: Sedentary Worker in the Garden
Wednesday, July 11th, 2012Annals of Compensability: A Pre-Existing Condition
Tuesday, August 30th, 2011We first encountered Montana workers comp judge James Jeremiah Shea last year, when he ruled that Brock Hopkins, a pot-smoking handyman, was eligible for workers comp after being mauled by a bear at Great Bear Adventures. In his ruling, Judge Shea managed to invoke the movie, Harold and Kumar Go to White Castle, to wit:
“It is not as if this attack occurred when Hopkins inexplicably wandered into the grizzly pen while searching for the nearest White Castle. Hopkins was attacked while performing a job Kilpatrick had paid him to do – feeding grizzly bears.”
In a more recent case, Judge Shea was confronted with the claim of Bruce Martin, a carpenter seeking treatment for what he insisted was a work-related back problem. While there is no reason to believe that Martin was partaking of Brock Hopkins’s favorite recreational drug, he did manage to present a narrative that consistently conflicted with the perceptions of virtually everyone else involved: his employer, Jesse Chase, co-worker Barry Hollander, and claims adjuster Michele Fairclough.
Martin claimed he injured his back while stripping the plastic protective barrier off of metal siding – a relatively light-duty task. But in walking off the job that morning, he stated to his boss that his sciatica was acting up and that it was not work related. Only after going to an Urgent Care clinic did he claim that the injury happened at work. Why? We can assume that he wanted his employer to pick up the tab through workers comp.
My Aching Back
Martin’s history of back problems began in the early 1990s, following a motor vehicle accident. He treated sporadically with Dr. Aumann, a chiropractor. Dr. Aumann, sympathetic to his long-term patient, thought that “on a more- probable-than-not” basis that Martin’s injury was the result of the work accident he described. Unfortunately for Martin, no one else bought his story, even as the story itself changed over time.
Judge Shea wrote:
Dr. Aumann identified objective medical findings to support Martin’s claim of lumbar spine problems. However, Martin has not established that this injury occurred because of a specific event on a single day or during a single shift. I did not find Martin’s testimony credible. Neither Hollander, who was working alongside Martin, nor Martin’s employer Chase could corroborate Martin’s account of injuring his back on June 29, 2010…
It is not altogether impossible to feel a little sympathy for Martin: he has a real back problem. He is experiencing legitimate pain. He has difficulty performing physical work and is not trained to do anything else. He desperately needs income. Martin is like a lot of other American workers in these troubled times, living day-to-day on the edge of disaster. While we can understand why he would try to stretch the facts to fit the workers comp mold, we acknowledge that he was wrong to do it. As Judge Shea concluded, Martin was not injured as the result of an industrial accident. Given that definitive ruling, Martin, bad back and all, is simply on his own.
Bad Back: New York Toil and Trouble
Monday, July 12th, 2010Today we examine one of the great conundrums in workers comp claims: the old injury that may or may not be defined as a new injury.
In 2006 David Poulton worked for Martec Industries in Rochester, New York, as a laborer. Poulton had a bad back, having already filed workers comp claims in 1998 and 2000. When he visited his treating physician in June 2006, he had the same old complaint: his back hurt, as it had virtually every day since his first injury in 1998. He told his doctor that he re-injured his back at work the prior day while lifting materials. At this appointment, a discouraged Poulton told his doctor he wanted to quit working.
In consideration of Poulton’s long-established problem, apparently compounded by the prior day’s incident, the doctor disabled him from work. He cited “old injuries and his continued decline.” He characterized the situation as involving “episodic increases in pain” that had troubled Poulton for several years. The doctor, in fact, had been encouraging Poulton to stop working prior to this particular visit.
An independent medical exam determined that Poulton suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.
So is this a new injury, as reported by Poulton, or simply the recurrence of an old one?
Who Pays?
An administrative law judge found in Poulton’s favor, determining that the lifting incident at Martec aggravated the pre-existing condition. However, this ruling was reversed by the appelate division of the NY supreme court, which found no evidence of a new injury and remanded the case for further consideration.
Poulton may yet succeed in re-establishing his workers comp claim, but it will draw upon the resources of the carrier for his prior employer, not the carrier for Martec. As is usually the case in workers comp, the narrative is driven by the evidence. In this case, the history of pain and suffering is so unrelenting and consistent, the “new injury” theory goes up in smoke. With his working days apparently at an end, Poulton probably does not care who pays for his troubles. He has suffered for a long time.The remaining question, of course, is who pays and how much.
