Overheated Waitress who became Dizzy, Slipped Experienced Compensable Knee Injury


Charleston, WV (WorkersCompensation.com) -- Just because an employee’s injury seems unlikely doesn’t mean it’s not compensable. In defending itself, and employer still may have to present witnesses’ statements or other evidence calling into question the worker’s account of the accident.

A restaurant chain failed to do that with respect to a waitress who slipped in a restaurant in Bob Evans Farms, LLC v. Woolford, No. 21-0509. (W.V. Sup. Ct. App. 01/19/23).

It happened on a day when the air conditioning was out. The part-time waitress was on her way from the kitchen prep area to the breakroom, she said, when she became dizzy. She lost her footing and fell on her right knee.

Shortly afterward, an orthopedist ran an MRI, which showed the waitress had a fractured knee, with fragments.

The waitress filed a claim for workers’ compensation benefits, asserting that she became dizzy because the lack of air conditioning caused her to become overheated. She testified that she had no preexisting health conditions and denied ever experiencing dizziness in the past. She later admitted she was diabetic and took two medications for the condition.

The claims administrator rejected the claim, along with a request for an orthopedic referral, as did the Workers' Compensation Office of Judges.

The Office of Judges reasoned that there were no witnesses to the alleged injury. It also noted that the incident happened at 7:15 a.m. in late May. The Office of Judges concluded that May 26 would be a day in late spring and the incident happened before the heat of the day would be anticipated. It found that the waitress failed to show that she became dizzy and fell as a result of being overheated; it was just as likely that she became dizzy for an idiopathic reason.

For an injury to be compensable, the court stated, an employee must have received it in the course of employment, and it must have resulted from that employment. 

The Board of Review reversed the Office of Judges’ decision, and Bob Evans appealed. 

The court noted that the company provided no evidence to refute the waitress’s testimony that the restaurant was hot during the day in question, or that she became overheated due to a malfunctioning air conditioner, or that she became dizzy and fell on her knee. Further, the workplace injury report mirrored her account of the episode. Finally, the physician who completed the Report of Injury diagnosed a work-related right knee injury. 

As to the requested referral, the court pointed out that West Virginia Code § 23-4-3(a)(1) provides that the claims administrator must provide medically related and reasonably required sums for healthcare services, rehabilitation services, durable medical and other goods, and other supplies. The court found that the waitress’s requested referral to an orthopedist was both reasonable and necessary.

The court affirmed the Board of Review’s decision that the injury was compensable and that the company must foot the bill for the orthopedist.

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