GQ Corner

Q: An employee claims that he was struck by lightning and injured while working outside. Video surveillance shows lightning strike far in the distance such that it did not appear to strike the employee or indeed anywhere near him. However, the employee asserted complaints of “tingling” all over his body and presented to the emergency room. All diagnostic tests were normal and the employee was released after a determination that no injury occurred. Is there a reasonable basis to deny the claim under these circumstances?

A: Yes. The initial threshold question is whether the claimant sustained an injury in the first place. The medical evidence in your case appears to support a position that he did not. Even if the evidence did not support an injury, Texas Labor Code Section 406.032(1)(D) furnishes a defense if the injury arose out of an Act of God unless the employment exposed the employee to a greater risk of an injury from an Act of God than ordinary applies to the general public. Thus, the fact-specific analysis under these circumstances would turn on whether the Act of God – i.e. the lightning strike – is a producing cause of the injury and whether the employee was exposed because of his employment to a greater risk of an injury from an Act of God than ordinary applies to the general public.

The Appeals Panel discussed in APD 950034 whether a claimant was subjected to a greater risk of lightning strike because his employment required him to drive a truck in severe weather. The Appeals Panel reversed the determination of the Hearing Officer that the injury was compensable and rendered a decision that it was not on the basis that there was no evidence that the claimant was exposed to greater hazard of lightning strike than the general public as a result of his employment. Conversely, the Appeals Panel concluded in APD 950020 that an injury arising out of a lightning was compensable where the claimant was working in a field during a severe storm because his employment required him to do so.

As noted above, the facts of your case appear to support dispute of any injury, i.e. damage or harm to the physical structure of the body, but you may raise as a secondary defense that the carrier is not liable for compensable under Texas Labor Code Section 406.032(1)(D) because the claimed injury arose out of an Act of God.

Q: The claimant is alleging that he sustained “stress” as a result of a hostile work environment. He reported that he and another employee became engaged in a verbal argument during a meeting with several other peers to discuss employment-related issues, after which the other peers also became hostile toward him. The alleged incident occurred in May of 2015 but the claimant did not cease working and pursue medical evaluation and treatment until the end of July, at which time his primary care physician prescribed medication for high blood pressure. Is denial appropriate under these circumstances?

A: Yes. Stress claims are generally not compensable in Texas. Mental trauma injuries can be compensable even without associated physical injury if they are traceable to a definite time, place, and event but not if they are the result of a legitimate personnel action.

In your case, it appears that there may be a specific time, place, and event precipitating the stress claim. However, it also appears that there is insufficient evidence of any injury, i.e. damage or harm to the physical structure of the body, and that any such injury–if proven to exist–resulted from a legitimate personnel action such that denial is warranted regardless.