“But For” Does Not Apply in Alabama
By: Jamie Sanders, Partner, Birmingham
How many jurisdictions apply the “but for” standard to the issue of compensability? You know, the premise that because the employee’s injury occurred at work it is compensable? This seems like the plausible outcome, but hold on. The following decision illustrates why the “but for” standard does not apply in Alabama.
The Circuit Court of Jefferson County, Alabama, granted defendant’s renewed Motion for a Judgment as a Matter of Law on April 12, 2016, in Campbell v. T-Mobile USA. The court determined the claimant’s injury did not “arise out of” her employment as required by the Alabama Workers’ Compensation Act, because her job did not place her at any “increased-risk” of being bitten by an insect. At the conclusion of the plaintiff’s case, the defendant moved for Judgment as a Matter of Law in its favor, which the court denied. The defendant renewed its Motion for Judgment as a Matter of Law at the conclusion of all the evidence, which the court took under submission and ultimately granted.
Tracy Campbell was employed as a financial care representative for T-Mobile, working out of the Birmingham, Alabama office. On Wednesday, May 6, 2009, she arrived at work, where she held a desk job on the 12th floor of an office building. The claimant alleged that sometime between 10:00 a.m. and 12:00 p.m., she felt something on her left leg, followed by a painful “pinch” or “bite.” She looked down to see what could have bitten her, but saw nothing. She finished out her workday without any complaints, and went home for the evening. The claimant alleged that once she got home, she began to feel “queasy.” Over the next few days, she began breaking out in night sweats and feeling “sluggish,” or having very little energy, and even became sick to her stomach. On Friday, May 8th, the claimant left work early due to illness.
The next morning, May 9th, the claimant checked herself into the ER. She presented with fever, nausea, non-productive cough, headache, pain, and left leg redness. The claimant informed her physician of the insect bite she received a few days prior. At that point, her physician rendered her stable, diagnosed her with left leg cellulitis, and released her with prescriptions for antibiotics and pain medication.
The next day, May 10th, the claimant returned to the ER. This time, she was diagnosed with left leg cellulitis, septic shock, acute renal failure, and anemia. She was admitted into critical care, where she stayed until being discharged on May 22nd. During that time she went into renal failure and multi-organ failure, requiring the implantation of a central line to introduce fluids and antibiotics. She also received some physical therapy during her hospital stay. Her physician diagnosed her with cellulitis from a bacterial infection thought to be staph. He further noted that she suffered from multisystem organ failure, complicating the cellulitis of her left lower extremity, and possibly associated with the alleged insect bite Claimant received while at work on May 6th. Her physician found nothing in her history, prior to the alleged insect bite, that could possibly contribute to these symptoms. The claimant returned to her job on July 13, 2009.
The Alabama Workers’ Compensation Act states that for an injury to be compensable, the injury must be caused by an accident “arising out of and in the course of employment.” Ala. Code §25-5-3 and §25-5-51 (1975). Under the plain language of the Act, in order for an employee’s injury or death to be compensable, it must occur both in the course of the employee’s employment, and arise out of the employment. Slimfold Mfg. Co v. Martin, 417 So.2d 19, 202 (Ala.Civ.App.1981). Historically, Alabama has utilized several methods and analyses to determine if an injury arose out of an injured worker’s employment. Such methods have included the “proximate cause” standard, the “peculiar risk” standard, the “positional risk” standard, and the “actual risk” doctrine. However, as it stands now, Alabama courts utilize the “increased-risk” doctrine. The increased-risk doctrine requires the employee prove a causal connection that his or her employment “exposed [the employee] to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives.” Ex parte Patsy Patton d/b/a Korner Store, 77 So.3d 591 (Ala. 2011). A risk to which people are normally exposed in their everyday lives can be referred to as a “common risk.” It has also been established that an on the job injury may occur in the course of employment without arising out of the employment. Bell v. Tennessee Coal, Iron, & R.R., 247 Ala. 394, 396; 24 So.2d 443, 444 (Ala. 1945) [Emphasis added]. Alabama’s workers’ compensation law requires an injured worker to show that his or her occupation placed him or her in a greater position than the common person to suffer the injury claimed. There must be some aspect, relative to the nature of the employment, which makes it more likely for the particular injury to have occurred at the job site than some other place.
In the present case, in order to comply with the requirements of the increased-risk doctrine, and to prove legal causation and compensability, the claimant needed to show that her job with T-Mobile placed her under an increased risk of being bitten by an insect beyond that of a normal person. The court determined she was unable to do so based on the nature of her position with T-Mobile. The claimant worked on the 12th floor of an office building, in a large room with sealed windows. Therefore, there was no expectation of a greater risk of exposure to insect bites. Furthermore, there was nothing particular to Claimant’s employment that would increase the danger of being bitten by an insect.
The finding of the Circuit Court is an excellent reminder to dig a little deeper when determining the compensability of a claim. Just because the injury occurred while at work certainly does not render the incident compensable.