NC Risk Handling Hint -‘Arising Out Of’ and ‘In the Course Of’; Material Aggravation; Attorney’s Fees

Cynthia Mintz worked as a customercare representative for Verizon Wireless. She worked on the second floor of the building that Verizon occupied. Verizon did not own the building. Other businesses also occupied the building, however, all of the businesses provided services to Verizon’s employees and the general public did not have access to the building without permission. During Mintz’s required unpaid lunch breaks, she walked the hallways of the first floor where the cafeteria was located for exercise. During one of these walks, Mintz slipped on a piece of ice and fell on her knee as she was returning to her cubicle.

 

Mintz had a history of prior knee issues, including surgery. After the fall, she was diagnosed with a knee contusion. She continued treating for her knee condition with steroid injections and prescription medications.

 

Mintz’s treating physician testified that her fall at work materially aggravated the arthritis in Mintz’s knee. The Deputy Commissioner concluded that Mintz suffered a compensable injury and awarded benefits. The Full Commission affirmed and awarded attorney’s fees pursuant to N.C.G.S. § 97-88.

 

On November 20, 2012, inMintz v. Verizon Wireless, the Court of Appeals first considered whether the Full Commission erred in concluding that Mintz suffered a compensable injury by accident when she fell while walking for exercise at work during a required, unpaid lunch break. The Court concluded that there was no error and explained that “arising out of” means the accident occurred because of a condition or risk created by the job. According to the Court, the evidence that members of the public were generally not allowed in the building, supported the Commission’s finding that Mintz’s injury was incidental to her employment.

 

The Court also analyzed “in the course of,” noting that it relates to the time, place and circumstances under which the accident occurred. The “course of employment” begins a reasonable time before work and continues until a reasonable time after work ends. This time includes time during the day for rest and refreshment. Although Defendants argued that this element was not met because Mintz was on an unpaid lunch break, she was required to take the hour long break. With regard to the issue of “place,” although Defendants argued that Verizon did not own, control or maintain the building, the Court concluded that the evidence that all of the other businesses in the building provided services strictly to Verizon employees supported the conclusion that the accident occurred in an area subject to Verizon’s control.  With regard to the “circumstances” element, the Court noted that it is met when an employee is engaging in an authorized activity which furthers the employer’s business. Rest and exercise furthered Mintz’s business by making her a more pleasant customer care representative, similar to cases which recognize the “personal comfort doctrine.”

 

In addition, the Court also considered the Commission’s findings that Mintz’s fall materially aggravated the preexisting arthritis in her knee. The Court rejected Defendants’ argument that the treating physician’s opinions were merely assumptions and reiterated that the Full Commission is the sole judge of credibility of witnesses and the weight of testimony. Mintz’s physician testified that his opinion that the fall materially aggravated her pre-existing condition was irrespective of prior flare-ups of Mintz’s knee condition.

 

Finally, the Court upheld the Commission’s award of attorney’s fees pursuant to N.C.G.S. § 97-88, rejecting Defendants’ argument that the imposition of attorney’s fees was premature because attorney’s fees would not be allowed if theCourt of Appeals reversed the Full Commission.

 

Risk Handling Hint: Although a unique fact scenario, Mintz establishes that the “personal comfort doctrine” will be extended even in circumstances where an employer does not own or maintain the business premises. Risk managers should be aware of the possibility of liability in such circumstances even though an employee is technically “off the clock.”Mintz is receiving national attention in the worker’s compensation arena and may generate additional claims under similar fact scenarios.