GQ Corner

Q. I would like a legal opinion on the following injury reported by our insured.

The injured worker is a 20-year-old female material handling. She was on her lunch break in the break room when pulling her lunch dish out of the microwave, she dropped the dish and tried to catch it and in the process burned her left hand.

Was the injured worker in the course and scope even though she was on her lunch break?

A. It’s a close call. The claimant was on the premises of the employer when the accident happened so the personal comfort doctrine applies. Your best argument involves the proposition that the injury did not arise out of the claimant’s employment. Your problem is the burrito case.

In Texas Division of Workers’ Compensation Appeals Panel Decision No. 001638, the Appeals Panel reversed and rendered a decision that the deceased employee had not sustained a compensable injury that resulted in her death. The Panel found the claimant’s death, which occurred while she was sitting on a bus (where she worked) eating a burrito (which she choked on) compensable. The self-insured argued that the decedent was not at any increased risk of choking due to her employment because she was sitting in a non-moving bus doing nothing but eating a burrito at the time, and that her employment in no way caused her injury/death. The panel noted that this case presents an extremely close question of law. However, they hold that acts of health and comfort, which includes relieving hunger were incidental to the employment and the injury, or death in this case was incidental to the decedent’s work and was compensable.

This case would suggest that under your facts that the injury could be compensable but it is a close question.

Q. Our insured requires their employees to send them a report from the doctor on a monthly basis to confirm their work status, etc. I have received a request from the employee to reimburse her for each report. It does not seem appropriate that we reimburse the employee, but please advise what is appropriate.

A. The doctor can bill for providing a DWC-73 as required, but the doctor should be billing the carrier/self-insured for that, and not billing the claimant. The reimbursement rate is $15. If the doctor charged the claimant for that, I would reimburse the claimant for the expense, but then contact the doctor’s office and make sure they know they should not be billing the claimant for that. This is addressed in Rule 129.5.