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Workers compensation payers should consider the increased risk test when evaluating benefits for injured workers in light of recent court rulings.
Under the test, injuries resulting from risks common to the general public are compensable only if a workplace put employees at an increased risk of such injuries.
States such as Minnesota and New Hampshire recently used the increased risk test to determine if an injury arose out of and in the course and scope of employment.
Though not all courts refer to the test by name, a version of it is used in more than two-thirds of states for certain cases, such as those resulting from conditions with an unknown cause, natural disasters or traveling employees, sources said.
The Minnesota Supreme Court, which explicitly adopted the test in December 2013, reinforced its stance in March by overturning a nurse's award of benefits and remanding her case, said Tom Atchison, associate attorney at Heacox, Hartman, Koshmrl, Cosgriff & Johnson P.A. in St. Paul, Minnesota.
The court ruled that Carol Kainz, who fractured her ankle while walking down basement stairs to retrieve supplies, is not entitled to comp benefits because her workplace, the Arrowhead Senior Living Community in Virginia, Minnesota, didn't expose her to an increased risk of injury or a special hazard she wouldn't face in everyday life.
“It wasn't an employer- or insurer-friendly reading, but it wasn't necessarily as employee-friendly as some other courts have been with regard to the "arising out of and in the course of' element,” Mr. Atchison said. Now, “there has to be some sort of causal connection or nexus between your work activities and the injury.”
The New Hampshire Supreme Court also referenced the increased risk test in March when it awarded workers comp benefits to Brandon Kelly, whose lower leg was amputated after he fell asleep at the wheel of a company truck and hit a utility pole.
The court ruled that Mr. Kelly was entitled to benefits since his work, which involved traveling to job sites for Hudson, New Hampshire-based Advanced Sheet Metal Services Inc., presented an increased risk and was a “substantial contributing factor to the injury.”
Albert B. Randall Jr., Baltimore-based principal at law firm Franklin & Prokopik P.C. and president of the National Workers' Compensation Defense Network, said the increased risk test doesn't come up that often, possibly because most occupational injuries clearly result from workplace hazards. He added that Maryland is among states that recognize the test.
Slips, falls and other potential injuries from unknown causes typically are compensable when there's an increased risk present, Mr. Randall said, noting, “if you replace the stairs with a ladder, there's no doubt” the Minnesota Supreme Court would have ruled in favor of Ms. Kainz.
In Florida, the test is “less of a consideration than perhaps in other states,” said Steve Coonrod, a partner at McConnaughhay, Duffy, Coonrod, Pope, Weaver, Stern & Thomas P.A. in Tallahassee, Florida.
“If somebody falls at work or has an accident at work, it's presumed to be work-related — unless the carrier can show it was caused by something external to work,” Mr. Coonrod said. “So if you don't know why it happened — it was truly idiopathic — then it's normally covered. But even if you can show it was caused by something outside of work, is there some special hazard at work that made the results particularly bad?”
Sources both in states that use the increased risks test and those that don't shared a similar example to explain special hazards, saying a worker who slips for no reason, but hits his or her head on a filing cabinet on the way down, has suffered a compensable injury.
However, lawyers in California and New York said idiopathic injuries — those resulting from an unknown cause — are typically considered compensable in those states regardless of workplace conditions.
“With regard to idiopathic injuries which occur at the place of employment, (California) courts will find that the injury is compensable,” Demetra G. Johal, managing partner of Laughlin, Falbo, Levy & Moresi L.L.P.'s Los Angeles office in Pasadena, said in an email. Though the condition itself isn't compensable, if an employee with epilepsy “has a seizure and falls against or strikes an object at the place of employment — including the floor — in the fall, there is sufficient causal connection for the injury to be found industrial and compensable.”