The Law

Workers’ Compensation Won’t Cover E-Cigarette Use, Court Rules

When a city employee faints after using an e-cigarette during his break, his employer refuses to cover the incident under workers' comp.
By: | July 30, 2018 • 2 min read

Larry Brooks supervised a team that preformed water and sewer line repairs for the City of Winston-Salem, North Carolina.

As per state labor laws, Brooks and his team were allotted two 15-minute breaks and a 30-minute lunch break when working an eight-hour day. As part of his duties, Brooks was “responsible for deciding whether and when breaks would be taken, and [was] responsible for the crew during breaks.”

One sunny October afternoon, Brooks and his team took lunch at a nearby gas station. Towards the end of their break, the team and Brooks entered the gas station to purchase cigarettes.

Brooks, changing things up, opted for an e-cigarette. He ignited the device while sitting in his truck and immediately began coughing. He opened the truck door to step out and get some fresh air, however his coughing episode caused him to pass out. Brooks landed on the cement curb, injuring his hip, back and head.

The injuries prevented Brooks from returning to work as a team supervisor, though he was cleared for light duty work. He filed for workers’ compensation, but the claim was denied.

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During a hearing before the city’s deputy commissioner, Brooks testified his injuries were related to an accident stemming from work-related duties. He was, at the time of incident, responsible for the crew during their break.

The city saw it differently, and the deputy commissioner said “[Brooks’] injuries were not the result of an injury by accident arising out of and in the course of employment,” calling it an idiopathic reaction.

Idiopathic conditions can pop up at any time, as a reaction to outside forces or as a hidden ailment. If at work, best practice is to keep detailed incident reports on file in case a workers’ comp dispute arises.

In the Court of Appeals, Brooks argued the city mistakenly denied his claim, because it failed to conclude his injuries stemmed from a fall related to his employment. He argued that because he was on the clock, despite it being his breaktime, his accident and subsequent injuries stemmed from his employment.

The court looked at Brooks’ medical records, confirming his reaction to the e-cigarette was an idiopathic condition — a condition that arises spontaneously without a known cause.

While the Workers’ Compensation Act covers certain idiopathic maladies, it will only cover those that can be proven to stem from employment-related practices.

Brooks’ fall stemmed from an idiopathic reaction to the substances found in his e-cigarette, not from work-related activity, the court said.

Scorecard: Larry Brooks will not receive workers’ compensation for an injury that stemmed from e-cigarette use.

Takeaway: Idiopathic conditions can pop up at any time, as a reaction to outside forces or as a hidden ailment. If at work, best practice is to keep detailed incident reports on file in case a workers’ comp dispute arises. &

Autumn Heisler is the digital producer and a staff writer at Risk & Insurance®. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]