Employee Who Allowed Manager to “Pop” His Back, Denied Work Comp Benefits

An employee at a Florida Waffle House was having back complaints after working an 18 hour shift. Based on the complaints, the employer’s manager thought that “popping” (manipulating) his back might relieve some of his pain. The “popping” did not go well, and he was unable to stand up straight and had nerve pains running down his leg. The employee claimed that the manager’s manipulation of his back created the need for surgery following a diagnosed L4-5 disc herniation. He filed for lost wages and medical benefits under workers’ compensation.

The initial Compensation Judge awarded benefits and ruled the employee’s injury occurred within the course and scope of the claimant’s employment because he was on work premises during his shift while reasonably fulfilling his duties by either working the grill or receiving pain relief assistance from a manager. The judge also found that there was substantial evidence that the industrial accident was the major contributing cause of the claimant’s lower back injuries.

The Appeals Court reversed the Judge’s decision. The manipulation of the employee’s back by his supervisor did not constitute an injury that arose out of the claimant’s employment. He allowed the manipulation and it was not performed to support his work as a grill cook, only to help relieve his pain. The employee must prove that his injury was the result of an accident happening not only in the course of his employment but also arising out of that employment. There was no proof that working an 8 hour work shift was the cause of his back complaints. If so, the employee would need to offer proof that the injury was caused by repetitive trauma – a claim with a much higher burden of proof. To prove a repetitive trauma injury, the claimant had to show by clear and convincing evidence: 1) prolonged exposure, 2) the cumulative effect of which is injury or aggravation of a preexisting condition, and 3) that he had been subjected to a hazard greater than that to which the general public was exposed.

When reviewing the claim, the court stated that Florida Chapter 440 (work comp law) does not cover all workplace injuries but rather only covers work-caused injuries. Occupational causation cannot be established based solely on a showing that but for the employee being at work, he would not have been injured in the manner and at the particular time that he was hurt. The mere presence at work is never enough standing alone to meet the arising out of prong of the coverage formula, i.e., the back manipulation was not performed to support the claimant’s duties for the employer.

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