In Harm's Way: A Non-compensable Fall

Friday, December 2, 2011 | 0

Geoffrey Hampton worked as a laborer for Intech Contracting LLC. Hampton, an insulin dependent diabetic, was working with a crew on Sept. 9, 2009, repairing a bridge in Muhlenberg Ky. Hampton suddenly uttered a profanity and walked to the edge of the bridge. He climbed over a 4-foot barrier and fell 60 feet, suffering permanent injuries.

Hampton has no memory of the incident. His co-workers testified that he had been complaining about not feeling well; that he had taken a snack of sweets to adjust his blood sugar; and that the fall did not appear to be an act of suicide.

Hampton was certainly "in the course and scope" of employment, but the question for the courts was whether his injuries arose "out of" employment. The Appeals Court found that his idiopathic condition - diabetes - was the likely cause of his actions and that his extensive injuries did not arise "out of" employment. As a result, Hampton was unable to collect workers' comp.

It's important to note that Hampton's employer took specific steps on that fateful evening to remove Hampton from harm's way:
When he requested time for a break to adjust his blood sugar, they immediately consented. [NOTE: Hampton had inadvertently left his insulin at the hotel room.]
When Hampton complained about not feeling well toward the end of the shift, he was told to sit in the truck. He left the truck and walked toward the bridge rail on his own.

Not All Risk is Work-Related

The court noted that Hampton's diabetes was not under control, which certainly raises the issue as to whether it was safe for him to perform this kind of work; if the employer had awareness of the medical condition, they should have required a note from Hampton's doctor that it was safe for him to perform the essential job duties.

The court implies that there were circumstances where an injury might have been compensable: for example, if Hampton had been working near the edge of the bridge and had experienced a black out due to hypoglycemia, he would likely have been eligible for comp benefits. However, if it could be proven that the black out was the result of his own negligence in attending to his illness, perhaps the claim would still have been denied.

But Hampton was sitting in a truck, safe and secure, with no unusual risks or exposures. He was clearly out of harm's way. There is no way of knowing why he did what he did, but it is clear that work had nothing to do with it. When he went over the rail of the Muhlenberg bridge, he gave no thought to the workers comp safety net that usually covers his every working moment. The findings of the court are both harsh and fair. For Geoffrey Hampton, the fateful date of 9/09/09 will resonate every moment of his diminished life.

Jon Coppelman is a principal with Lynch Ryan & Associates, a Massachusetts-based employer consulting firm. This column was reprinted with his permission from the firm's blog, http://www.workerscompinsider.com.