Allowing your manager to “pop” your back at the end of a long shift is not an injury that arose out of employment.

The claimant had worked a 17-hour shift with little to no breaks. When his manager arrived, he complained of back pain, and then he allowed the manager to “pop” his back to relieve his pain. He then went home. Later that day, the claimant could not stand up straight and had nerve pains running down his leg. He tried to return to work but had to leave after two hours. He filed for indemnity and medical benefits, alleging the mechanism of injury was the manager’s manipulation of his back. The employer/carrier denied the claim.

The claimant’s IME physician diagnosed a herniation with radiculopathy. Despite having low back pain before the manipulation, a prior left knee injury with foot drop, and three prior right knee surgeries with foot drop, the clamant still concluded that his manager’s manipulation was the major contributing cause. The employer’s/carrier’s IME doctor opined that the manipulation was not the major contributing cause.

The judge of compensation claims found that the claimant sustained an injury either from working the 17-hour shift or from his manager manipulating his back. The judge concluded that both mechanisms of injury occurred within the course and scope of the claimant’s employment because he was on work premises during his shift while reasonably fulfilling his duties by either working the grill or receiving pain relief assistance from a manager. The judge then found that there was competent, substantial evidence that the industrial accident was the major contributing cause of the claimant’s lower back injuries. The judge rejected the employer’s/carrier’s medical expert’s testimony, finding that the claimant’s physician’s testimony and reasoning were most logical and reasonable.

The First District Court of Appeal found that the judge erred in two ways. First, the claimant never plead or proved that the 17-hour shift was the cause of his injuries (which the court said would be a repetitive-type trauma with a higher burden of proof). Second, he did not meet his burden to show that the injuries from the manipulation arose from his work. He acquiesced to the manipulation; it was not performed to support his work as a grill cook; and was merely an effort to relieve pain at the end of his workday. Therefore, the decision was set aside.
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 11, November 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}