An employee was assigned the responsibility of cleaning an area of a large utility plant. He climbed several flights of open stairs and claimed that he dusted the stairways leading to the roof. To let the dust settle, he and a coworker exited a door at the top of the stairs that led to an open roof. Instead of waiting in the open air on a clear day, the employee and his coworker walked 70 feet to an abandoned smoke stack. There was an access hole six feet above the roof level. The employee and his coworker reached up and climbed into the abandoned smoke stack. The smoke stack had been capped off years earlier. The employee fell through the cap and landed on the floor 40 feet below. Not surprisingly, he suffered severe injuries. 

His claim for worker’s compensation benefits was denied. His labor union’s health and welfare plan paid for his medical expenses. The individual Hearing Member determined that the employee had been inside the smoke stack before and other people had been inside the smoke stack, based on circumstantial evidence of cigarette butts, trash, and homemade mattresses and pillows. The Hearing Member held that the employer had “acquiesced” to its employees using that area to stay “out of sight, out of mind” of the power plant’s management. There was no evidence that the employer’s management was aware that employees were using that area.

On appeal to the Full Worker’s Compensation Board, the Board confirmed the decision in a split vote. The matter was appealed to the Indiana Court of Appeals that held, in an unpublished decision, that the decision should be affirmed. The employer is now appealing to the Indiana Supreme Court.

The employer is arguing that: 1) this case represents a departure from precedent and does not comply with the Indiana Worker’s Compensation Act’s definition of an injury “by accident arising out of and in the course of the employment;” 2) it is illogical to assume that the employer “acquiesced” to its employees climbing into this abandoned smoke stack; and 3) that there is no legitimate basis for the employee to have climbed into the abandoned smoke stack, other than to avoid detection which is not work-related.   

Donald S. Smith

Donald S. Smith


Author Donald S. Smith

Don Smith limits his practice to representing employers and executives in labor and employment matters. He defends employers in cases pending before state and federal courts, the National Labor Relations Board, Equal Employment Opportunity Commission, Indiana Civil Rights Commission, U. S. Dept. of Labor, OSHA, IOSHA, Indiana Dept. of Workforce Development, and Indiana Worker’s Compensation Board. Don advises employers concerning various employment issues such as employee handbooks, employment agreements, severance agreements, covenants not to compete, restrictive covenants, wrongful termination, collective bargaining, labor arbitration, unions, discrimination, harassment, wage and hour matters, unemployment compensation and worker’s compensation.

© Riley Bennett Egloff LLP

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Posted on Nov. 03, 2016  by Donald S. Smith