If you were doing something, however slight, to cause an injury at work be sure to let your employer know all of the facts when you report the injury. As the case below verifies, if you are just walking at work and feel a “pop” in your back, you will probably be denied workers’ compensation benefits. Just being present at work does not automatically make an injury work related. The injury must arise out of the employment duties, and you must be careful to report the duties that you feel caused your injury.
Colleen Fitzgerald v. Walmart was decided by the Appellate Division in New Jersey on November 20, 2015 (No. A-1186-14T3). In this case, Petitioner Colleen Fitzgerald filed a claim for an accident that occurred on April 26, 2010 while she was working for Walmart. She was simply walking in the store and felt a “pop” in her low back. At the time she felt the pop she was not doing anything other than walking, although testimony revealed that at some time prior to feeling this pop in her back she had been doing some lifting at work in her position as a zone merchandise supervisor. She reported the accident to her manager, and after seeing her family doctor who diagnosed her with protruding lumbar discs, she took FMLA for 12 weeks and a leave of absence while she received treatment. There was never any authorized treatment provided by the Workers’ Compensation carrier for Walmart.
Ms. Fitzgerald filed two claim petitions, one for the specific incident that occurred on April 26th, and an occupational claim stating that the work she did from December 2008 through April 2010 caused her back injury. Since Walmart denied both claims, she filed a Motion for Medical and Temporary Disability benefits with the Workers’ Compensation Court. The Motion was heard by Judge Gangloff who found in favor of Walmart on both claims, as did the Appellate Division on appeal. In the trial before Judge Gangloff, both sides called medical experts to testify. Petitioner’s expert, Dr. Gaffney testified that in his opinion petitioner’s injury was caused by her work at Walmart, while Respondent’s expert, Dr. Meeteer felt that the injury was not related.
The Appellate Division found no reason to disturb the Workers’ Compensation Judge’s well-reasoned findings. The court stated that the Judge reviewed the applicable case law and applied the two-step “positional risk test” for determining whether the injury arose out of the course of employment. The first part of this test requires the petitioner to prove that “but for” the fact of employment, the injury would not have happened. The next part of the test is to analyze the “nature of the risk” that caused the injury. In this case, the Court concluded that that the petitioner failed to satisfy the first part of the test because “the facts here do not establish that the petitioner would not have been exposed to the risk if she had not been at work.”
In other words, because she was simply walking when she felt the “pop” in her back, the back injury could have just as easily happened while she was not at work. Yes, petitioner was walking at work, but according the Judge Gangloff, “she could have been walking anywhere at the time of onset of pain.” He found that there was nothing about the workplace that contributed to petitioner’s injuries.
The Judge did not find that petitioner had a compensable occupational claim either, because the medical records did not support Dr. Gaffney’s opinion that her condition was somehow related to a progressive occupational condition. However in my opinion, considering the facts at trial showed that Ms. Fitzgerald had been doing some lifting at the cash register before walking and feeling the “pop,” it is possible that if she reported this lifting and related it to the back pain when she originally reported the claim, it would have been accepted as work related.
Please feel free to contact the Workers’ Compensation team at Stark and Stark if you have any workers’ compensation questions.