Landscapers, surveyors, construction workers, groundskeepers, park rangers, farmworkers, and countless others spend their days working outside. But when do weather conditions become an actual risk of employment?
The summer weather brings an increase in claims for heat exposure. Virginia courts have repeatedly held that heatstroke can qualify as a compensable injury by accident under certain circumstances. The Virginia Workers’ Compensation Act does not generally compensate for injuries that occur gradually due to repetitive and cumulative trauma. While heatstroke is often caused by working in high temperature conditions over a period of time, it is not considered a “gradually occurring condition.” Rather, the Virginia Court of Appeals has held that “the anatomical changes in the body associated with heatstroke were an ‘obvious sudden mechanical or structural change in the body’” that qualified as an injury by accident. Imperial Trash Serv. v. Dotson, 18 Va. App. 600, 605-06, 445 S.E.2d 716, 719-20 (1994).
In order to prevail on a heatstroke claim, the employee must establish that his exposure to heat or sun was more than is typically encountered by other workers required to do outside work, or that their heatstroke was caused by conditions peculiar to the employment. See Taylor v. Arcap, VWC File No. 219-36-02 (May 31, 2005). Factors the Commission considers are whether the temperature the employee was exposed to was particularly extreme, the length of time the employee was working in the heat or sun, whether the employee was given breaks, and whether the employee was provided with water. Considerations can also include what the employee was wearing and the activities of the employee, as well as other contributing environmental factors such as the surface upon which the work is being performed, whether shade was available, and whether there was wind or precipitation. If the employee is working indoors, other important factors include whether there was air conditioning or if the employee was working around artificial heat sources such as ovens. See Byrd v. Stonega Coke & Coal Co., 182 Va. 212 (1944); Imperial Trash Serv. v. Dotson, 18 Va. App. 600, 445 S.E.2d 716 (1994). Additionally, the Commission looks to whether the medical evidence establishes that the claimant actually suffered heatstroke or heat exhaustion as a result of the work conditions.
For example, in Kjellstrom & Lee, Inc. v. Saunders, 42 Va. App. 673, 678-80, 594 S.E.2d 281 (2004), the claimant was working as a traffic flagger on a June day. The claimant was standing in an open area, in the sun, on asphalt and concrete. He began his work day around 7:00 a.m. and collapsed around 2:15 p.m. The evidence established that the temperature during this time varied from between 69 and 84 degrees farenheit, however the claimant testified that the asphalt generated additional heat. The claimant testified that he had no access to water, and was not free to leave his post. Further, there was medical evidence that these conditions caused the claimant’s heatstroke. The Court of Appeals upheld the Commission’s finding that the claimant’s exposure to the sun was beyond the norm and held that the claimant’s heatstroke was compensable.
By contrast, in Taylor v. Arcap, VWC File No. 219-36-02 (May 31, 2005), the claimant, a maintenance man, alleged he suffered heat exhaustion and dehydration while working from 8:00 a.m. to 4:00 p.m. in temperatures between 85 and 90 degrees. Witnesses testified that it was not “real hot” that day, and the claimant did some of his work in a shady area. The claimant was permitted to take breaks as needed and did take a one hour lunch break. There was also a water cooler nearby for the claimant to use. Based on these facts, the Deputy Commissioner concluded that the claimant failed to establish that his heat exposure was any different from any other individual who was working outdoors that day, and therefore held that the claimant had not established a compensable injury by accident.
It is important to note that an employer may be responsible for heatstroke or heat exhaustion even when the employee has a pre-existing condition that makes him or her more susceptible to heat exposure. In Washington v. Rock-Tenn, JCN VA00000935531 (Jan. 12, 2016), the Commission reversed the Deputy Commissioner’s decision denying a claimant’s claim for heat exhaustion and renal failure. The evidence established that the claimant was required to wear a jacket while working in an excessively hot recovery boiler area. The Deputy Commissioner denied the claim on the basis that the claimant’s condition was caused by his use of a prescription medication known to cause cramps, muscle pain, and elevated blood levels. The Commission disagreed and held that although the claimant’s prescription medication may have contributed to the injury or made him more susceptible to heat exposure, the claim was compensable because the claimant’s employment caused the excessive heat.
In order to reduce heat exposure claims, employers should be mindful of providing their employees with breaks, shade or air conditioning, and water or other beverages. For insurance adjusters and claim administrators, important things to consider when determining the compensability of heatstroke and heat exhaustion claims include:
- The temperature on the date of injury and the type of work the claimant was performing;
- The length of time the claimant was working in the heat or sun and how often breaks were permitted;
- Other environmental factors such as the surface the claimant was working on and whether there was wind or precipitation on the date of injury;
- What the claimant was wearing and whether the claimant had access to shade or water;
- Is there medical evidence that the employee actually suffered from heat stroke or heat exhaustion? Does the evidence support that the diagnosis was causally related to the working conditions?