In Gould v. Wright Tree Service, the Kansas Court of Appeals recently discussed a worker’s neutral and personal risks along with the personal comfort doctrine in finding that a worker injured while smoking suffered a compensable work injury. The Court also found that claimant did not recklessly violate a safety rule when he smoked on the job after handling gasoline.
Claimant was a groundsman for Wright Tree Service. His job duties required him to assist a foreman cutting limbs from a tree by hauling away branches, refueling chain saws, and handing tools to the foreman. He had spilled some gasoline on his shirt while refueling and handling a chain saw. His foreman told him there was a clean shirt for claimant in the company truck, and that claimant should take a break while the foreman finished up working in the tree. Claimant waited outside the “drop zone,” an area 10 feet in circumference around and beneath his foreman working in the tree removing branches. The employer permitted groundsmen to smoke while waiting to gather branches in the drop zone. When claimant lit a cigarette while waiting outside the drop zone, vapors from the fuel on his shirt ignited and severely injured him.
Claimant admitted to “not thinking” at the time though he was aware of the danger of smoking around flammable liquids. The workers compensation insurer for the Tree Service denied the claim. The Administrative Law Judge agreed and denied benefits. The Judge found that smoking was a risk personal to claimant and thus there was no connection to his employment.