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Personal and Neutral risks in Workers Compensation

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.

The Judge’s ruling was appealed and the Appeals Board disagreed with the Judge.  The Board awarded medical expenses and a functional impairment. The Board also found there was no reckless violation of a safety rule. The Board found that claimant’s job entailed working with gasoline which created risks. Spilling gasoline on clothing was part of that risk. If there had been no spilled gas, then the accident and injuries would not have occurred. This established a sufficient causal connection between the work and the accident. The workers compensation insurer for the Tree Service appealed that ruling to the Court of Appeals.

The insurer continued to argue that there was no causal connection between claimant’s work and his resulting accident since smoking was not part of claimant’s job duties. The Court stated that the 2011 changes to the Kansas Workers Compensation Act (KWCA) reinforced prior case law concerning the required “causal connection” between the work and the accident. However, the elimination of neutral risks from compensability was a significant change.  The Court found that “catching fire” is a risk distinctly associated with working with flammable liquids, and therefore claimant’s injury arose out of a risk distinctly associated with his job.

The Board and Court also reaffirmed the “personal comfort doctrine,” which holds that injuries occurring during authorized break times are not a departure from the employment relationship, and are therefore still covered under workers compensation. The Court noted that smoke breaks remained compensable and the 2011 changes to the law did not eliminate the “personal comfort doctrine.” The Court found that the personal comfort doctrine still applied even if a neutral risk was present. Other Board cases, however, had found that smoke breaks were not covered under workers compensation, such as Laturner v. Quaker Hill Nursing, L.L.C., No. 1,059,381 (Kan. WCAB. Nov. 2012) and Adams v. Hospira, Inc., No. 1,069,056 (Kan. WCAB. June 2014). These cases were distinguished because of differences in the employer’s policies. In both of these latter cases, the workers had clocked out to take smoking breaks. Each involved employers that prohibited smoking on the job. Each required workers to smoke in designated smoking areas. Both cases also involved employees slipping on ice while walking to the designated smoking area. The Board in these cases found that there was no causal connection between claimant’s work conditions and the accidents, and the risk of injury was either personal or neutral. The “personal comfort doctrine” did not apply to these cases because the employer did not permit smoking on the job.

Based on the above, the Court in Gould found the injured worker’s claim compensable and awarded benefits.