eNotes: Workers’ Compensation – November 2023 – West Virginia

SIGNIFICANT CASE SUMMARIES

West Virginia Case Summary

Hood v. Lincare Holdings, Inc.
Supreme Court of Appeals of West Virginia
September 2023 term, No. 21-0754

Decided: November 9, 2023

The factfinder (Board of Review) has discretion to use the increased-risk test when deciding whether an employee sustained a compensable injury while the employee was engaged in a neutral risk activity.

Background

The Claimant, a delivery driver for a medical supply company, was delivering supplies to a residential customer. While exiting the residence, the Claimant began descending three wooden steps off the resident’s porch. While placing his right foot on the second step, the Claimant felt a “pop” and pain in his right knee. He did not slip, trip, or fall, and he was not carrying any objects at the time. The Claimant was diagnosed with a right knee sprain and meniscal tear. The Employer’s claim administrator denied compensability, and the Claimant filed a protest with the Office of Judges (ALJ). The ALJ affirmed the claim administrator’s decision, ruling that the Claimant developed right knee pain while engaged in an ordinary activity of daily life and that the Claimant’s work activities neither caused nor contributed to the injury.

Holding

The Supreme Court of Appeals upheld the Board of Review’s opinion that the Claimant’s injury did not result from his employment. The Court identified four types of injury-causing risks an employee faces at work: (1) risks directly associated with employment; (2) risks personal to the Claimant; (3) mixed risks; and (4) neutral risks. The Court identified a neutral risk as that which is neither distinctly Employer nor distinctly personal in character. The Court held that the factfinder may use the increased-risk test when deciding whether an employee sustained a compensable injury where the employee was engaged in a neutral risk activity. Under the increased-risk test, even if the risk faced by the employee is not qualitatively peculiar to employment, the injury may be compensable if they face an increased quantity of a risk. The Court noted that, in the instant case, the ALJ essentially applied the increased-risk test in determining that the Claimant’s injury was not causally-related to his work activities but rather to an ordinary activity of daily life. The Court deferred to the ALJ, as factfinder, that the employee descending a short set of stairs was not qualitatively peculiar to his employment, nor did he face an increased quantity of a risk.

Takeaway

Even if an employee reports an injury that is clearly within the course of employment, the factfinder (now Board of Review) has significant discretion in determining whether there is a causal relationship between the injury and a claimant’s work activities when the claimant is injured while engaging in a neutral activity, i.e., an activity that could be considered an ordinary activity of daily life. Employers should carefully scrutinize whether to accept or deny an injury as compensable when the mechanism does not involve an activity exclusively connected to the employee’s job duties and does not involve a triggering event such as slip, trip, or fall.

Questions about this case can be directed to Evan Jenkins at (412) 697-7403 or ejenkins@tthlaw.com.