Snakebite Claim Illustrates Compensability Questions

The denial of a workers’ compensation claim by a Virginia woman, who was bitten by a snake at her workplace, offers an opportunity to analyze the compensability of some workplace injuries. On July 2, 2016, 29-year-old Ke’Vonia Cousins was on her break from her job with a Chesterfield, Virginia company. As she was about to go outside,  she felt a shooting pain and something wet on her foot. Cousins had been bitten on the foot by a baby copperhead snake. After three days in the hospital and two doses of anti-venom, she’s now in physical therapy trying to recover.
Cousins’ workers’ compensation carrier has disputed the compensability of the claim under Virginia law. But this prompts an interesting question: would such a claim, or one occurring under comparable facts, be compensable under Texas law?
We know from two cases that when an employee encounters a snake at work, and is injured while avoiding being bitten by the snake, the claim for the physical injury occurring during the escape has been held to be compensable. Fillyaw v. City of Beaumont, 564 S.W.2d 139 (Tex. Civ. App.—Beaumont 1978, no writ); Texas Division of Workers’ Compensation Appeals Panel Decision No. 960993. But what about cases where the actual injury is the snakebite itself?
In Texas Division of Workers’ Compensation Appeals Panel Decision No. 992644, the claimant had a hair-raising encounter with a snake at work:

Claimant was employed as a mechanic and “trouble call man” for an airline.  Claimant testified in some graphic detail how, on March 10, 1997, he was working on a pump in a dark subterranean tunnel beneath the basement of employer’s training center, with the only source of light being a “snake light” he was wearing, while wading in water when he was attacked by a water moccasin snake, which struck at the light he was wearing; claimant said that he ducked but the snake bit him in the shoulder and that as he tried to grab the snake to “fling” it away, it coiled around his arm and continued to strike at him.  Claimant was bitten one more time in the shoulder before he was able to throw the snake away and get out of the tunnel.  Claimant testified that he is 6′ 5″ tall and the tunnel was only about five feet high, so he was walking in a crouched or stooped-over position.  Claimant testified that he made his way back to the shop and he was then taken to a hospital emergency room (ER) where he received some injections.  Claimant testified that while he was in shock, he was also concerned that his wife did not know where he was and that he wanted to go home.

The issue in this case did not involve compensability. The parties assumed the claim was compensable.
In Texas Division of Workers’ Compensation Appeals Panel Decision No. 991231 (apparently, 1999 was a bad year for snakebites!), the appeals panel considered another snakebite claim. There, the claimant testified that on October 28, 1998, he was employed as a gauger monitoring and maintaining gas wells for the employer.  Many of the wells are located on remote ranches, where the employer maintains leases.  The claimant stated that on October 28th, he was at a ranch changing  the charts on the well.  He testified that he was standing next to his company pickup truck  completing the charts with the readings he had taken.  He stated that he was using the bedside toolbox as a writing surface; that a wind came up and blew the charts into the bed of the pickup; that he reached in to retrieve the charts; and that as he did so, he was bitten on the middle finger of his right hand by a rattlesnake.  In an unchallenged finding, the hearing officer determined that “[o]n or about October 25, 1998, [three days before the injury] while he was supposed to be performing duties of a gauger, the Claimant caught a rattlesnake and placed it in a wire cage in the bed of his pickup which was used to carry out his duties.”
The hearing officer concluded that the snakebite was not compensable. The claimant appealed to the appeals panel. The appeals panel reversed the hearing officer’s decision and rendered a decision that the claim was compensable:

Clearly, while the Claimant was filling out charts of the readings that he had taken he was in the course and scope of his employment.  However, when the Claimant reached into the bed of the pick-up and was bitten by a rattlesnake he was not.  Reaching into the pick-up to retrieve the charts ordinarily would not be an activity that would expose the Claimant to being bitten by a rattlesnake that was in a cage.  The Claimant, on his own, caught the snake and kept the snake in the bed of his pick-up.  Neither of those activities were the kind or character that had to do with, or originated in, his work.  Catching the snake and keeping it in the bed of his pick-up were not activities that he performed as an employee while engaged in or about the furtherance of the affairs of the Employer.  It was the Claimant’s own personal financial reasons that caused him to capture and keep the snake in his pick-up.  The Claimant’s own personal affairs rather than the business affairs were being furthered by these activities.  Additionally, solely because of the Claimant’s purely personal activities, he was exposed to a poisonous snake in the bed of his pickup.  The simple activity of reaching into the bed of the truck would not have otherwise caused an injury such as the one sustained by the Claimant.

A careful review of the above-quoted factual findings and the hearing officer’s  discussion section, demonstrates that he introduced concepts of fault and negligence in this case in direct contravention of Section 406.031(a).  While we do not disagree with the hearing officer’s assessment that the activity of capturing and keeping the snake was not an activity that had to do with or originated in the employer’s business or his determination that that activity furthered the claimant’s own financial affairs rather than the affairs of the employer, we cannot agree that those determinations inescapably lead to the conclusion that the claimant was not in the course and scope of his employment in this instance when he was bitten by the rattlesnake.  The activity of keeping the snake was not the only activity in which the claimant was engaged at the time of the injury.  To the contrary, the claimant was also reaching into the truck to retrieve the charts that had blown out of his hands as he was entering the data from the readings he had taken on them.  The hearing officer stated in his discussion that the claimant was “clearly” in the course and scope of his employment while he was filling out the charts.  We agree; however, in light of that determination, we find no basis for removing the activity of regaining control of the document, which it was the claimant’s job to complete, from the course and scope of employment.  It seems axiomatic that if the activity of completing the chart originates in the business of the employer and furthers its affairs, the act of retaining control over the chart likewise does so.  Accordingly, we reverse the hearing officer’s determination that the claimant was not in the course and scope of his employment at the time of his injury and render a new decision that he was in the course and scope of his employment at the time  of his injury.

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We are not unmindful that the determination that the claimant was in the course and scope of his employment at the time of the snake bite may be somewhat controversial.  There is a certain facial appeal in the proposition that because the claimant introduced a dangerous instrumentality into the workplace, which was unrelated to the employer’s business, he should be excepted from receiving workers’ compensation benefits.  However, it is well-settled that negligence or fault on the part of the claimant does not bar recovery.  Section 406.031.  If the hearing officer had determined that the claimant was injured catching the snake or doing anything to or with the snake, there is little doubt that such activity would be determined to be a deviation from the course and scope of employment. However, that did not happen in this instance.  To the contrary, the hearing officer found that at the time of the injury, the claimant was reaching into the bed of the truck to retrieve the chart he was filling out as part of his job duties.  That activity is an activity that originates in the employment and furthers the affairs of the employer and, as such, it is an activity within the course and scope of his employment.  An argument could be made that the catching and keeping of snakes is an activity of such a nature that on-the-job injuries associated with that activity are not properly compensated under workers’ compensation.  However, to except such conduct from compensation would require legislative action.  See Section 406.032.  In the absence of  any such action, and in light of the prohibition of considering fault or negligence on the part of the claimant in determining liability for workers’ compensation benefits, no basis exists for our creating such an exception.  See, e.g., Rodriguez v. Service Lloyds Ins. Co., 42 Tex. Sup. Ct. J. 900 (July 1, 1999).

To be compensable, an injury has to occur while the employee is furthering the work of the employer. The facts in Appeals Panel Decision No. 991231 seem to easily satisfy that element. But a compensable injury must also have to do with and originate in the work of the employer. “An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business.” Am. Gen. Ins. Co. v. Williams, 149 Tex. 1, 5, 227 S.W.2d 788, 790 (1950).
The judges in Appeals Panel Decision No. 991231 failed to analyze this element. They confused the concept of fault or negligence (not an element of compensability) with the concept of risk or hazard (which is undeniably an element of compensability). The risk or hazard of a snakebite in Appeals Panel Decision No. 991231 was introduced into the workplace by the injured employee not by the nature of the employment. Stated differently, the risk of being injured by a snakebite was not a risk that was “necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business.” The decision does not apply the statutory test of compensability.
Would Ke’Vonia Cousins’ snakebite injury be compensable under Texas law?
Under the access doctrine, Cousins was furthering here employer’s business by taking a break on the employer’s premises. This satisfies the “furthering” element.
If Appeals Panel Decision No. 991231 has been correctly decided, she was also exposed to a risk of harm that originated in the employment. But was the risk of harm from a snakebite “necessarily or ordinarily or reasonably inherent in or incident to the conduct of” the work that Cousins’ was hired to perform? The facts are sketchy, but it seems unlikely that the risk of a snakebite was “reasonably inherent” to the conduct of Cousin’s office job.