Missouri: Toilet Dispenser Attacks Worker

If a Missouri worker gets injured using a public toilet, does she get comp benefits? The answer is: at least some of the time, according to the latest report from the Commission in a case affirming benefits in a temporary award. Eberhard v G4S/Walkenhut, 2015 Mo WCLR Lexis 1 (lexis.com), 2015 Mo WCLR Lexis 1 (Lexis Advance) (January 7, 2015).

The employee did multi-state surveillance work and was watching a person's home near Sikeston, Missouri in 2011. She stopped at a McDonald's bathroom before driving 3 hours home in St. Charles and when she used a bathroom and "upon completion" the toilet paper dispenser became partially dislodged from the wall and made contact with her head and shoulder. She claims she "screamed" and "passed out." She promptly took pictures of bruising and sent it to her supervisor. She states as a result of the accident that her ears "buzzed" and she developed a whiplash, tingling arms and double vision. When the employer-designated doctor released her, she obtained further treatment on her own for her shoulder, thoracic outlet syndrome and other conditions. She claims her shoulder is "horrible" and an expert concluded she may ultimately require surgery.

The ALJ in a May 2014 temporary award found that claimant's accident arose in the course of her employment because she was a traveling employee and she was being paid for her time and travel expenses and not engaged on a personal errand. The ALJ accepted the opinion of claimant's expert, a shoulder surgeon, that her shoulder disability flowed from her accident and ordered the employer to provide treatment. Claimant denied any prior symptoms. Claimant was employed at the time as an insurance claims adjustor.

The employer appealed and asserted that the ALJ did not specifically analyze the facts of the case to show that the risk was related to employment and was an equal exposure to non-employment life. The worker used public toilets away from work too. The employer stopped providing treatment after Feb. 2012 based on two medical opinions that any need for treatment for her shoulder bursitis did not flow from the accident. The employer objected that the claim did not make sense medically nor did claimant identify a unique occupational risk. The commission in a supplemental opinion found that claimant's work on the road created a unique occupational hazard to use public restrooms and that public restrooms had a higher risk of unknown maintenance problems.

The commission noted that because the claimant's job requires travel, she must use public restrooms, she must use them more frequently, and public restrooms have a higher risk of hidden dangers from the wear and tear of public use. "The duties of employee's work for employer effectively necessitated an increased reliance upon the use of such facilities" even when she elected to choose facilities that were generally well-maintained (such as McDonald’s). "We find that employee's work for employer exposed her to a greater frequency of using public restrooms, and the risks and hazards attendant thereto..."

The Commission rejected the equal exposure defense because the worker uses public toilets away from work because the issue is how often she uses them when on the clock. The Commission's analysis does not explain why this factual distinction has anything to do with why the dispenser itself failed or that the dispenser itself is somehow different than other dispensers in private facilities. One obvious answer to support the award is that private household dispensers have fundamentally different ways of dispensing toilet paper that don't involve 30-pound contraptions. Instead, the Commission is focused on something else entirely. Judicial notice is allowed at the court's own discretion when a fact is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Restaurants are crowded. People flush a lot. Things break down. These truths they hold as self evident. It's no wonder that speeding ambulances are not filled with this problem every day. To the contrary, a busy restaurant means more regular maintenance which mitigates the whole premise that busy means the worker is inherently at higher risk to be attacked by a dislodged dispenser. There is no expert opinion on non-medical issues that this type of thing ever happens.

While the Commission for years has chastised employers for counting widgets to evaluate repetitive trauma exposure, this is a new era in which counting occupational and non-occupational flushes is the key to any "equal" exposure defense. It is a common flaw not to have specific evidence comparing occupational and non-occupational exposure. The employer asserted claimant also had public toilet exposure outside her capacity as a worker.

An important distinction in this case is that the worker identified a hazard as a cause of her injuries and there was no dispute that she had at least some initial trauma even though its relationship to her subsequent symptoms was disputed by the experts. The worker here is not only prepared, but trained by her employer to take pictures.

The employer also appealed causation based on the credibility determination of competing experts. Such appeals are notoriously difficult particularly in these circumstances when the expert is well-known and has decades of medical credentials even when the symptoms are atypical or just weird.

The employer convinced the commission there was a ground for appeal that the first award was incomplete and that more information was important to explain the award. The Commission then provided more information in its award and flushed the employer’s arguments.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

For more information about LexisNexis products and solutions connect with us through our corporate site.