Larson’s Spotlight on Recent Cases: Slip and Fall During Unpaid Lunch Break

Larson's Spotlight on Unpaid Lunch Break, Exclusive Remedy, Cancer Presumption, and Advance Payment. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

NC: Slip and Fall During Unpaid Lunch Break Sufficiently Connected to Employment to Support Claim

A North Carolina appellate court recently affirmed an award of benefits to an employee who slipped on some ice in the building that was leased and occupied by her employer.  Ice from an ice-maker had spilled out onto the floor.  The employee slipped as she walked from a bathroom toward her cubicle after an unpaid lunch break. The court found unconvincing the employer's contention that since plaintiff was injured on an unpaid lunch break, her employment was not a contributing proximate cause of the accident. Observing that the employee was injured in a common area of the building where employees were encouraged to go and that the employee was required to take an unpaid lunch break, the court found Dr. Larson's explanation of the personal comfort doctrine persuasive and adopted its reasoning [see Larson's Workers' Compensation Law, § 21.02].  The court noted that the employer was the main tenant of the building and controlled the activities that occurred inside. The court stated that "[i]f an employee is injured on premises owned or controlled by the employer on a lunch break, whether or not that break is paid, we hold that the circumstances are within "the course of" employment.

See Mintz v. Verizon Wireless, 2012 N.C. App. LEXIS 1304 (Nov. 20, 2012).

See generally Larson's Workers' Compensation Law, § 21.02.

VT: Claimant's Action Against Former Employer for Negligent Design of Electronic Switch Not Barred by Exclusivity Where Former Employer Sold Business Assets Prior to Injury

The Supreme Court of Vermont recently held that the identity of the employer subject to workers' compensation liability and the accompanying immunity is determined with reference to the claimant's injury, not the underlying tortious act.  Accordingly, where claimant worked for defendant corporation at a time that the corporation designed an electronic switch as part of a redesign of one of its substations, and where it subsequently sold its assets to a second company under an arrangement that the claimant became the employee of that second company, without having to apply for the job, the claimant could file a civil action against defendant corporation for negligence design and construction where he was electrocuted while using the new switch in the course of his employment with the second company.  After defendant sold its assets, claimant had no relationship with it beyond that of a former employee. Claimant was, therefore, not injured "in the course of his employment" with defendant, and defendant was not his employer for the purposes of workers' compensation.

See Hemond v. Frontier Communications, 2012 VT 94, 2012 Vt. LEXIS 94 (Nov. 7, 2012).

See generally Larson's Workers' Compensation Law, § 100.01.

CO: City Fails to Rebut Presumption That Firefighter's Brain Cancer Was Causally Connected to His Employment

A divided Colorado appellate court, construing the broad presumption favoring firefighters who contract various diseases and conditions, including cancer, during their employment, recently held that a city's evidence to rebut the presumption was inadequate and that the firefighter was entitled to benefits for brain cancer.  The majority of the court indicated while the evidence supported a reasonable inference that the firefighter's brain cancer was not caused by any of the carcinogens commonly associated with firefighting, the city had presented no evidence to support an inference that the firefighter's workplace exposures were limited to that group of substances.

See City of Littleton v. Industrial Claim Appeals Office, 2012 COA 187, 2012 Colo. App. LEXIS 1793 (Nov. 1, 2012).

See generally Larson's Workers' Compensation Law, § 52.07.

FL: Claimant's Desire to Enhance "Rainy Day" Fund Found Insufficient to Support Award Under Statute Providing for $2,000 "Advance"

A Florida appellate court recently concluded that the provision of a financial "cushion" to a claimant was not, by itself, a justifiable basis for the award of a $2,000 advance under § 440.20(12)(c)(2), Fla. Stat. The court indicated that to hold otherwise would result in automatic $2,000 advances from employers and carriers to claimants where there was little, if any, connection to a pending claim for medical or related care or even a demonstrated need for the funds. While the court acknowledged that having an extra $2,000 in one's "rainy day" fund was in the claimant's interests generally, it indicated that under the statutory framework, the advance must be shown to have a connection to medical and related financial needs arising from workplace injuries. In the instant case, claimant sustained a shoulder injury four years prior to her request for the statutory advance, while working as a flight attendant.  A five percent permanent impairment was established. When she reached MMI, she had returned to work without any loss of income, however. In spite of her contentions to the contrary, the court found that she had not met the statutory criteria for receiving the advance.

See ESIS/Ace American Ins. Co. v. Kuhn, 2012 Fla. App. LEXIS 19843 (Nov. 13, 2012).

See generally Larson's Workers' Compensation Law, § 132.07.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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