Last week, the North Carolina Court of Appeals ruled that a city employee is not owed workers' compensation for an injury that the employee suffered while smoking during a lunch break. The case is Brooks v . City of Winston-Salem, No. COA17-1208, 2018 N.C. App. LEXIS 504 (Ct. App. May 15, 2018).

In October of 2015 Brooks was employed by the City of Winston-Salem (Winston-Salem) in the Utilities Department as the Senior Crew Coordinator. His job was to supervise a team of employees who performed water and sewer line repairs throughout Winston-Salem. Winston-Salem allowed its employees to take two 15 minute breaks, and one 30 minute lunch break during each work day. As the group supervisor, Brooks was charged with determining “whether and when breaks would be taken, and responsible for the crew during breaks.” On October 22, 2015 Brooks decided he and his team would take their lunch break at a nearby gas station. Brooks ate his lunch in the Winston-Salem truck while the other employees sat at a table outside of the gas station. After eating, Brooks entered the gas station to purchase cigarettes. While inside the gas station, Brooks decided to purchase an e-cigarette instead of a pack of regular cigarettes. He had never previously smoked an e-cigarette. Brooks returned to the truck and began smoking the e-cigarette while sitting inside the truck. Winston-Salem had a policy in place that prohibited smoking cigarettes or e-cigarettes inside City vehicles or on City property.

When Brooks ignited and inhaled the smoke from the cigarette he began coughing “uncontrollably.” He opened the truck door in order to get some fresh air, and stepped out of the truck while continuing to cough. He then passed out and fell onto the cement curb, injuring his right hip, back, and head. Brooks was diagnosed injured by an orthopedist, and was assigned light duty work restrictions which prevented him from returning to his previous position as Senior Crew Coordinator. It was determined that Brooks exhibited elevated blood pressure and sugar levels at the time of his injury which, combined with the coughing fit, likely caused him to fall down. The City of Winston-Salem denied Brooks' workers' compensation claim alleging that he passed out due to the e-cigarette after exiting the truck, and fell and injured himself. The deputy commissioner issued an opinion asserting that “Brooks' injuries were not the result of an injury by accident arising out of and in the course of employment”. Brooks asserted that he would not have been in that specific location and situation had he not been employed by the City.

The court stated that Brooks although would not have been at that particular gas station if he was not employed and working at the time, his fall was not traceable to the conditions of his employment. The court also noted that the fall was due to underlying conditions combined with his decision to smoke, and not anything that his employer did.

Editor's Note:

The North Carolina Supreme Court has held that “an injury is said to arise out of the employment when it occurs in the course of the employment and is a natural and probably consequence or incident of it, so that there is some causal relation between the accident and the performance of some service of the employment.” Taylor v. Twin City Club, 260 N.C. 435, 438, 132 S.E. 2d 865, 868 (1963). Although the case may be similar to some other cases where North Carolina courts awarded workers' compensation benefits to an employee who suffers an idiopathic condition, such as the high blood pressure and sugar levels suffered by Brooks in this case, the court found that Brooks' injury was caused by the fall which was caused by his smoking combined with his idiopathic condition, not a risky or hazardous work environment combined with an idiopathic condition as in the cases cited.

This decision is in the employers favor. If, while he is on the job, an employee decides to engage in risky behavior that is not work related and against the employers' policies and subsequently suffers an injury, the employer will probably not be held liable for compensation.