March 9, 2010

Annals of Compensability: Mountain Dew, Mountain Don't

Henri Cyr was a part-time mechanic for McDermott's, a Vermont company that transports milk from dairies to processing plants. A co-worker offered Cyr a bottle of Mountain Dew. As he was not thirsty at the time, he put the bottle in the workplace fridge. About a week later the fridge was cleaned out, so Cyr took the bottle home.

Some time later, Cyr came home after a workday, drank a couple of beers and then, feeling thirsty, he opened the bottle of Mountain Dew and took a deep swallow. Alas, the bottle contained toxic cleaning fluid. Cyr felt a severe burning sensation in his mouth, throat and stomach. He was rushed to the hospital, where blood work and urinalysis revealed that his blood alcohol level was .16, well above the legal limit for driving.

So here is the question for workers comp aficionados: is Cyr's (severe) injury compensable under workers comp?

The initial claim was denied by the Vermont Department of Labor because Cyr was intoxicated and intoxication is an "absolute bar" to benefits - even though, we might add, the intoxication did not in any way contribute to the injury.

Now the Vermont Supreme Court has ruled that Cyr may indeed have a compensable claim. They have remanded the case back for consideration as to whether the injury arose out of "the course and scope of employment." The majority wrote:

Here, we find that claimant's injury arose out of his employment when he accepted the bottle containing the caustic chemicals. That act put the mechanism of injury in motion. This is not to suggest that his injury was inevitable once he received the bottle or that no superseding, intervening factor--such as intoxication--could have prevented his injury or altered its mechanism. However, no one suggests he was intoxicated at that time. ...His injury would not have occurred had not his employment created the dangerous condition.

In his dissent, Justice Reiber returns to the language of the statute that precludes compensability for any injury "caused by or during intoxication [emphasis added]" He believes that compromising this absolute language in the statute runs contrary to legislative intent.

Whether he was technically drunk or sober, poor Henri Cyr was the victim of horrifying circumstances when he took a swig from the bottle mislabled "Mountain Dew." He would have been better off if he had resorted to the beverage transported by his employer, wholesome milk.

The lingering mystery in this sad tale is how the toxic chemicals got into the Mountain Dew bottle: who did it and why? Such questions may be beyond the technical issue of compensability, but surely they are the questions most in need of answers.



I would deny this claim based on the "course and scope" of employment. The intoxication defense is a bar but I will focus on the course and scope doctrine.

If the employer supplied the drink, an argument could be made that the claim is compensable since the employer by supplying the drink was furthering their business interest by keeping the employees happy.

In the case above, the fact that the coworker provided the drink, does not empcompass an activity or condition created by the employer for the furtherance of their business. I would deny the claim.

If this state has applied the situational "but for" test and is an accepted legal dostrine within the state, this claim could be compensable and therefore might be compensable. Each state is different and the applicable statutes and case laws need to be applied to the claim.

Had the employer had a proper Chemical Hazard Program in place the introduction of solvent into the container at the business might not have have occurred.

Was this soda container brought from the co-worker home to the business as soda or solvent - the program would have not allowed introduction of any new chemicals into the workplace and workers would have been trained to recognize unlabeled or improperly labeled materials. Approval would be needed and an MSDS attached to the original manufacturers container. If workers had this safety training they might be inclined to follow it at home as well- although not required to do so. I suspect there was no such program in effect at this facility.

If the coworker brought this from home unknowingly (hopefully - or it is a criminal case)and introduced it to the workplace by mistake....then the container seal would have already been broken and if there was no intoxication - could the lack of a seal been detected and the tragic injury avoided? Good question. Not sure if it helps assess this question.

Who knows what kind of restrictions will be in place at this facility going forward. Maybe this could have been avoided.


Submit your email to be notified when this site is updated

Need help with your workers' comp program?

Monthly Archives

About this Entry

This page contains a single entry by Jon Coppelman published on March 9, 2010 4:27 PM.

AIG: Equal Opportunity Thievery? was the previous entry in this blog.

Cavalcade of Risk #100 (!) and other news of note is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.

OpenID accepted here Learn more about OpenID