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October 22, 2010
Was Search for Rock-Thrower within the Scope of Employment?

An employee of a Virginia bakery fell while searching for a boy throwing rocks at her employer’s outdoor air conditioning units. The employer contested her award of workers’ compensation benefits.

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What happened. “Mary” worked as a cashier at the gift shop owned by her employer, Paul’s Bakery, next door to the actual bakery. One afternoon as she was getting ready to leave work someone said that a boy was throwing rocks at the bakery’s air conditioner units. Mary went behind the gift shop to investigate. She went our through the parking lot and climbed up onto a loading dock to look behind the dumpsters. The loading dock had no handrails and was about three feet off the ground. The son of Paul’s Bakery’s owner, also investigating the incident, saw a boy hiding behind the dumpsters. He called out to Mary, who turned to look at him and then lost her balance and fell, injuring her shoulder.

What exactly made her fall was not clear. Mary said that she tripped on something, and later testified that her foot got caught on something, but could not conclusively say what had happened. She thought it might have been an irregular step on the loading platform. She applied for workers’ compensation benefits for her shoulder injury. The Deputy Commissioner denied her claim because she found Mary’s testimony about the accident unpersuasive and inconsistent.

The full Commission reversed this decision and awarded her benefits. It found that the injury had been caused by her attempting to step back onto an irregular step on the loading dock, and that she was distracted by looking for the boy who was throwing rocks. Paul’s Bakery appealed.

What the court said. In order to be compensable an injury must be caused by an accident that arises out of and in the course of employment. This is determined by the time, place, and circumstances of the injury in question. If an injury occurs during working hours at the place of employment while the employee is fulfilling explicit duties of employment or is doing something that could reasonably be considered part of employment, then a court will probably find that it arises out of employment.

Paul’s Bakery first complained that the Commission had given too much credence to Mary’s inconsistent testimony in finding that her fall was caused by a combination of the irregular step and configuration of the loading dock with the distraction caused by the rock-thrower. The Virginia Court of Appeals disagreed. Courts must accept a commission’s factual determinations if they are reasonably supported by evidence. In this case, it was reasonable to conclude that Mary’s fall could have been caused by a combination of an irregular step, the configuration and height of the loading dock, and looking for a child. These conditions were unique to the Paul’s Bakery workplace environment and exposed Mary to particular hazards.

Paul’s Bakery claimed that Mary’s fall did not occur in the course of employment because her workday had ended. The court completely disagreed: Mary was still at work, and she had gone out to the loading dock in an attempt to protect her employer’s property. Searching for a rock-throwing boy was in no way a personal mission that she would have undertaken had she not been actively working.

Last, Paul’s Bakery argued that the Commission had no evidence that Mary injured her shoulder in the fall because her emergency room records did not mention such an injury. Mary conceded that the injury did not appear in her records, but that she had other evidence of an injury. The court agreed with her. The Commission may consider a larger body of evidence, such as the employee’s testimony and subsequent medical records, in determining whether or not an injury actually occurred. In this case, Mary had later records of medical treatment for a shoulder injury, and her testimony supported her contention that the injury occurred at work. The court upheld the award of benefits. Paul’s Bakery v. Murphy, Court of Appeals of Virginia, No. 0314-10-2 (8/24/10)

Point to remember. Injuries that occur on employers’ premises, even in “border zones” such as the parking lot right at the end of a shift, are generally considered work injuries for workers’ compensation purposes.

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