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

2018 Risk All Stars

Stop Mitigating Risk. Start Conquering It Like These 2018 Risk All Stars

The concept of risk mastery and ownership, as displayed by the 2018 Risk All Stars, includes not simply seeking to control outcomes but taking full responsibility for them.
By: | September 14, 2018 • 3 min read

People talk a lot about how risk managers can get a seat at the table. The discussion implies that the risk manager is an outsider, striving to get the ear or the attention of an insider, the CEO or CFO.

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But there are risk managers who go about things in a different way. And the 2018 Risk All Stars are prime examples of that.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Goodyear’s Craig Melnick had only been with the global tire maker a few months when Hurricane Harvey dumped a record amount of rainfall on Houston.

Brilliant communication between Melnick and his new teammates gave him timely and valuable updates on the condition of manufacturing locations. Melnick remained in Akron, mastering the situation by moving inventory out of the storm’s path and making sure remediation crews were lined up ahead of time to give Goodyear its best leg up once the storm passed and the flood waters receded.

Goodyear’s resiliency in the face of the storm gave it credibility when it went to the insurance markets later that year for renewals. And here is where we hear a key phrase, produced by Kevin Garvey, one of Goodyear’s brokers at Aon.

“The markets always appreciate a risk manager who demonstrates ownership,” Garvey said, in what may be something of an understatement.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Dianne Howard, a 2018 Risk All Star and the director of benefits and risk management for the Palm Beach County School District, achieved ownership of $50 million in property storm exposures for the district.

With FEMA saying it wouldn’t pay again for district storm losses it had already paid for, Howard went to the London markets and was successful in getting coverage. She also hammered out a deal in London that would partially reimburse the district if it suffered a mass shooting and needed to demolish a building, like what happened at Sandy Hook in Connecticut.

2018 Risk All Star Jim Cunningham was well-versed enough to know what traditional risk management theories would say when hospitality workers were suffering too many kitchen cuts. “Put a cut-prevention plan in place,” is the traditional wisdom.

But Cunningham, the vice president of risk management for the gaming company Pinnacle Entertainment, wasn’t satisfied with what looked to him like a Band-Aid approach.

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Instead, he used predictive analytics, depending on his own team to assemble company-specific data, to determine which safety measures should be used company wide. The result? Claims frequency at the company dropped 60 percent in the first year of his program.

Alumine Bellone, a 2018 Risk All Star and the vice president of risk management for Ardent Health Services, faced an overwhelming task: Create a uniform risk management program when her hospital group grew from 14 hospitals in three states to 31 hospitals in seven.

Bellone owned the situation by visiting each facility right before the acquisition and again right after, to make sure each caregiving population was ready to integrate into a standardized risk management system.

After consolidating insurance policies, Bellone achieved $893,000 in synergies.

In each of these cases, and in more on the following pages, we see examples of risk managers who weren’t just knocking on the door; they were owning the room. &

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Risk All Stars stand out from their peers by overcoming challenges through exceptional problem solving, creativity, clarity of vision and passion.

See the complete list of 2018 Risk All Stars.

Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]