Act of God.
An IC is not liable for compensation if the injury arose out of an act of God, unless the employment exposes the IW to a "greater risk of injury from an act of God than ordinarily applies to the general public." Section 406.032(1)(E). The court of appeals has defined "act of God" as follows:
By the term "act of God" as used herein is meant any accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight, pain or care, reasonably exercised, could have prevented. The act must be one occasioned by the violence of nature, and all human agency is to be excluded from creating or entering into the cause of the resulting mischief. The term implies the intervention of some cause not of human origin and not controlled by human power. [Emphasis added]. Transport Insurance Co. v. Liggins, 625 S.W.2d 780, 782-83 (Tex. App.-Fort Worth 1981, writ ref'd n.r.e.).
The IW has the burden of proof to establish that his or her employment exposes the IW to a greater risk of injury from the act of God than ordinarily applies to the general public. Whether or not the IW's employment exposes him or her to a greater risk of injury than the general public is a question of fact for the HO to resolve. APD 002641.
Not An Act of God.
The following are examples of situations where the IC has argued that it should be relieved from liability under the "act of God" provision of the 1989 Act. In each example it was determined that the cause of the injury was not an act of God. It should be noted that the mere fact that the injury was not caused by an act of God does not automatically make the injury compensable. The IW is required to prove that he or she was (1) in the course and scope of employment and that (2) the injury was of such kind and character as had to do with and originated in the employer's work, trade, business or profession. Both of these requirements present a question of fact for the HO to resolve.
Insect bites and stings have been held not to be acts of God and have been held to be compensable when causation is established. It is not enough to show that the injury occurred while in the course and scope of employment. The IW must also prove that the injury was of such kind and character as had to do with and originated in the employer's work, trade, business or profession. Standard Fire Ins. Co. v. Cuellar, 468 S.W.2d 880 (Tex. Civ. App.-San Antonio 1971, writ ref'd n.r.e.). To show causation, the IW must prove that the conditions and obligations of the employment placed the IW in harm's way. Texas Workers' Comp. Ins. Fund v. Simon, 980 S.W.2d 730 (Tex. App.-San Antonio 1998, no writ.).
IW was employed as a school bus driver and sustained injuries when she was bitten on the knee by a brown recluse spider while driving her route. The HO found the injury to be compensable because the IW's employment as a school bus driver put her at a greater risk of being bitten by a brown recluse spider than the general public. The HO may consider factors such as the remote location of the bus barn in which the school buses were stored and the fact that the school bus door remained open at night while parked in the barn. From these facts, the HO could conclude that the IW's employment as a school bus driver put her at a greater risk of being bitten by a brown recluse spider than the public at large. APD 020446.
IW was driving a truck on the highway. It was dark out. IW sustained multiple injuries when he hit a patch of ice and was involved in a rollover MVA. IC argued that the injury was caused by an act of God because the ice on the road was not foreseeable, was caused by the forces of nature without human intervention, and that the employer did not have control over the road where the MVA occurred. It was determined that the injury was not caused by an act of God. The issue is not whether the employer could have taken some action to remove the ice, the issue is whether something can be done, through human intervention, to prevent accidents on ice. The HO may consider factors such as ice on the roads can be, and often are, covered with sand by crews, chains may be used by drivers, and warning signs may be posted by highway departments. APD 991714.
Evidence that the Injury Caused by an Act of God is Compensable.
The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is compensable, and that the "act of God" exception to compensability does not apply. For each of these fact circumstances there may be cases where a HO reached the opposite result because of the manner in which the evidence was weighed.
IW was employed by a retail store. The employer required all employees to park in a designated area beyond the "cart corrals." The employer further required that all employees enter the store through the main entrance, there were no exceptions to this policy. The IW exited her car and was headed toward the entrance of the store when she was struck by lightning near the first "cart corral." Also in the same area where the IW was struck by the lightning was a small tree supported by metal stakes four to five feet high. There was evidence that the lightning struck one of the stakes, traveled along the ground, went through the metal "cart corral," and struck the IW. The IW also presented expert evidence that she was at greater risk of being struck by lightning because she was required to park further out in the lot and was required to use a specific entrance, thereby increasing the likelihood of an employee being injured by lightning by increasing the amount of exposure time. The expert further noted that the metal stakes also increased the risk of injury from lightning. Whether or not the IW was at greater risk than the general public is a factual question. The HO determined that the IW in this case was, and that the injury was compensable. APD 002641.
IW was employed as a truck driver. On the DOI, he was pulling two trailers on an interstate highway. The IW testified that he was unaware of any bad weather in the area, and that his truck was blown over by a tornado causing him injury. The trailers the IW was pulling were thirteen feet six inches tall. The HO determined that the IW was at a greater risk than the general public due to his job as an over-the-road truck driver and the size and relative weight of the trailers he was pulling. This was a factual determination for the HO to make. APD 002179.
Evidence that the Injury Caused by an Act of God is Not Compensable.
The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is not compensable, and that the "act of God" exception to compensability does apply. For each of these fact circumstances there may be cases where a HO reached the opposite result because of the manner in which the evidence was weighed.
IW was employed as a custodian. Part of his usual duties was to pick up trash outside of the building. IW testified that on the DOI, there was lightning in the area but that his supervisor refused to allow him to seek shelter. IW testified that he was directed to use a metal stick to pick up the trash. IW was struck by lightning causing injury. The HO determined that the IW was not at greater risk of injury from lightning than the general public. The HO noted that at the time of the lightning strike, the IW was near a telephone pole and two buildings which were higher than the IW. The HO determined that the mere fact that the IW was using a metal stick was insufficient for him to prove he was at greater risk of injury from lightning than the general public. APD 951820.
IW was working as a driver's education teacher. On the DOI, the weather deteriorated and strong winds were blowing, making it difficult for her students to control the self-insured's vehicle which she was using to instruct them. The IW decided to end the instruction early. IW testified that the self-insured's policy required her to return the drivers' education vehicle back to its premises and that she was not permitted to drive it home. The IW returned the vehicle to the self-insured's premises, got her own vehicle, and started for home. On the way home, the IW encountered a tornado and was injured by debris which crashed through her back window. The IW asserted that she was at a greater risk of injury from the tornado than the general public because she had to return the self-insured's vehicle to its premises before seeking the shelter of her home. The HO determined that the IW was not at a greater risk of injury from the tornado than the general public at the time of her injury. APD 002884.
Section 406.032(2) provides that an IC is not liable for compensation if the IW's horseplay was a producing cause of the injury. Horseplay is considered the producing cause of an injury where there is an unbroken chain of events showing that the horseplay did not cease before the injury, where the injured party participated in the horseplay, and where the horseplay was an active and not an outside force causing the injury. See United General Ins. Exchange v. Brown, 628 S.W.2d 505 (Tex. App.-Amarillo 1982, no writ); APD 91029. If an IW willingly engages in an act of horseplay which results in injury to the IW, then the horseplay is a deviation from the IW's course of employment. See Calhoun v. Hill, 607 S.W.2d 951 (Tex. Civ. App.-Eastland 1980, no writ) and APD 022324.
Although not defined by the 1989 Act and the Commission rules, horseplay involves "rough and boisterous play," "pranks," "fooling," or "friendly attacks," which take the IW out of the course and scope of employment. APD 982732; APD 982250. Whether the conduct in which an IW was engaged at the time of the injury was horseplay is a question of fact for the administrative law judge to resolve. APD 93013.
Evidence of Horseplay.
IW's job did not involve chopping boards. He injured his wrist at work chopping a board with a Karate chop. That was found to be horseplay. APD 92072.
Not Evidence of Horseplay.
A non-participating victim of horseplay may recover compensation for injuries sustained as a result of the horseplay of others. APD 92536.