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An employee who suffers from heat or cold must prove that his injury is unique and specific to his job. If the general public is subject to the same harm, the employee can’t claim that he suffered a work related injury. For example if an earthquake levels a city and an employee is injured, that employee is not entitled to benefit because he was at work when the earthquake hit. He encountered the same danger that the whole town encountered. But if he can prove that he was more susceptible because of some work condition, then he is entitled to benefits. Exposure to extreme temperature may result in injuries ranging from sunstroke to freezing and pneumonia. These injuries arise out of employment if they result from risks increased by employment duties. Alternatively, risks inherent in extreme weather presented to the public at large and independent of specific employment duties do not arise out of employment. For example, freezing weather presents a slight risk of pneumonia to the general public and a great risk of pneumonia to employees working outdoors for extended periods of time. Generally, employers argue that an employee who was injured from the cold was subject to the same harm as the general public and therefore he/she is not entitled to benefits. Some courts have agreed and ruled that way. Nevertheless, several courts instead use a mere cross section of the general public as a control group for what should be an analysis of the entire public in general. The following cases are illustrative. One case involved an outdoor laborer suffering from a heat stroke during his shift. The court inquired as to whether his employment presents a risk of heat stroke beyond the risk encountered by the general public. The court denied benefits to the injured employee on the basis that the average member of the public encountered the same risk, since it was a hot day in the area. The court failed to recognize that while the average member of the public may encounter the same weather, the average member of the public is not pushing a wheel borrow filled with sand under the direct sun, and instead is having iced tea in the shade. The fallacy in the case above leaks into analysis of injury caused by risk of attack. One case involved a night watchman attacked for personal reasons while patrolling his secluded place of employment. The court inquired as to whether the man was subject to a greater risk than other night security guards patrolling secluded areas. However, the more accurate inquiry is whether night patrolmen as a class of employees are subject to greater risks of attack than are members of the general public. The answer to this inquiry is clearly yes, since members of the general public are usually not hanging around secluded areas at night while they are alone. |
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