question mark 2492009 640

What Do You Think: Did Excavator Operator who Went Unconscious Hit Head in Course of Employment?

08 Oct, 2023 Chris Parker

question mark 2492009 640

Howell Township, NJ (–What if an employee is working and suddenly goes unconscious? Can he establish a viable workers’ compensation claim for an injury that he believes occurred when he was insensible?

That was the issue in a case involving an employee with a history of seizures who was operating a 56,000-pound excavator on a bridge construction project. He said a piece of asphalt he was clawing up "broke loose," causing the excavator to "pop backwards" and “lift up.” That caused his body to move backwards within the cab and, he believed, to his head.

The next thing he remembered, he said, was talking to the doctor—several hours later. The employee believed his head struck the back of the cab and it was lights out.

The employee’s coworkers said the excavator was functioning normally until they saw it pull toward the roadway and then stop moving. They found the operator sitting upright in the cab like he usually did, but with his head dropped to his chest. He was unconscious. His forearms were on the armrests and his hands on the joysticks. The cab had a padded headrest, which separated the operator from the rear of the cab.

After the incident, the employee started having severe back, neck, and shoulder pain, and had to stop working.

The New Jersey Division of Workers' Compensation's denied the employee’s claim for benefits. The employee appealed.

The court explained that an injured employee seeking workers’ compensation benefits bears the burden of proving that his injury arose out of and in the course of employment.

Did the employee establish that he was injured at work?
A. No. He was only speculating about what happened and the configuration of the cab undermined his theory.
B. Yes. His pain didn’t start until after the incident.

If you chose A you sided with the court in Sykes v. George Harms Construction Co., Inc., No. A-3320-20 (N.J. Superior Ct. App. Div. 09/28/23, unpublished), which held that the employee failed to link his neck, shoulder, and back pain to the excavator incident.

The court found no support for the employee’s contention that he hit his head. Because of the head rest, he could not have done so. Further, his coworkers found him in a normal, upright position after the incident.

The court also rejected the employee’s claim that regardless of whether it was a seizure that caused his loss of consciousness, or he struck his head in the excavator, his loss of consciousness occurred in the course of his employment, and thus his injuries were compensable.

As the workers’ compensation judge explained, the court noted, "there is no presumption that once a petitioner goes unconscious, that whatever else he claims happened to him must have happened during the course of the accident."

Finally, while the doctors' reports stated that the injuries were causally related to the accident, both doctors’ conclusions were premised entirely on the information provided to them by the employee. Accordingly, the were not helpful.

The court affirmed the workers’ compensation judge’s denial of the claim.

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