What Do You Think: Did Medical Supply Driver who ‘Blew Out’ Knee on Stairs Face Heightened Risk?

17 Nov, 2023 Chris Parker


Wheeling, WV (WorkersCompensation.com) -- To determine whether a worker who is injured while engaged in an activity that is neither distinctly personal nor distinctly employment-related in character, many courts apply the “increased-risk” test.

The West Virginia Supreme Court of Appeals recently applied that test to decide whether a medical supply delivery driver faced a heightened risk of injury due to his job when he blew out his knee on a customer’s porch steps.

The driver was descending a short set of stairs from the porch. He had just carried five replacement oxygen bottles from the van, walked up the stairs of the customer's porch, and set them inside the front door of the home. The bottles weighed in total about 22 pounds.

While descending the stairs, he did not slip, trip, or fall, and he was not carrying anything. On one of the steps, he felt a "pop" and pain in his right knee.

He was later diagnosed with a right knee sprain and sought workers’ compensation benefits. An ALJ denied the claim, finding that the injury, while it occurred in the course of employment, wasn’t causally related to work.

The delivery driver appealed.

To be compensable, an injury must both occur in the course and scope of employment and arise out of employment. To arise out of employment, it must be work-connected, or causally related to work.

The court explained that the risk the driver faced when injured was a neutral one. Neutral risks are neither distinctly employment-related nor distinctly personal" in character, such as an unexplained fall that occurs while an employee walks across an even workplace floor.

In neutral risk cases, the court added, West Virginia courts may apply the “increased-risk” test to determine whether conduct is work-connected.

Was the driver’s busted knee work-connected?
A. Yes. He had just carried five oxygen bottles up the steps.
B. No. He did not face a heightened risk because of his job when he was injured; he was simply walking down stairs.

If you selected B, you agreed with the court in Hood v. Lincare Holdings, Inc., No.  No. 21-0754 (W. Va. 11/08/23), which concluded that the delivery driver did not face an increased work-related risk when he was injured.

First, the court found that the risk the driver faced while walking down the stairs was a neutral one, as it was neither purely personal nor distinctly employment-related.

Next, the court applied the increased-risk test and found that the employee did not face a heightened risk while walking down the stairs. Instead, he faced the type of risk anyone might face in their daily activities. This was not a case where the employee used stairs more frequently than a member of the general public as part of his job and thereby faced an increased risk of injury.

Further, the court noted, the driver did not slip, trip, or fall, and he was not carrying materials related to his employment at the time of the injury. Thus, he failed to show that his knee injury resulted from his employment.

The court affirmed the denial of the claim.

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