Issue link: http://psai.uberflip.com/i/1284896
ASSOCIATIONINSIGHT Portable Sanitation Association International News BIWEEKLY EDITION SEPTEMBER 2, 2020 Page 12 Portable Restroom Plays Role in New Worker's Comp Decision By Karleen Kos, PSAI Executive Director On August 18, the Tennessee Worker's Compensation Appeals Board affirmed a trial court ruling that an employee's injuries weren't work-related, when those injuries were from a tree falling on him as he exited a portable restroom next to his job site. The portable restroom had not been provided by his employer, but it was present near the worksite. The Situation The worker, Brett Rosasco, was painting the exterior of a house. He had to relieve himself, so he used a portable toilet placed in front of the lot next door. In his sworn declaration, said he had been told he "was supposed to use the [p]orta [p]otty located in a cul-de-sac immediately next to the home where he was working." After leaving the portable toilet, a tree fell on him. Rosasco's employer, a painting company, denied the claim, saying his injuries were an "'Act of God' that was unforeseeable and unpreventable by the Employer." At the worker's compensation hearing, Rosasco stated that "a dead tree falling is entirely preventable by intervention of human agency and, therefore, cannot constitute an 'act of God.'" He contended his injuries arose primarily out of his employment and were compensable. The judge disagreed, reasoning that Rosasco's work "placed no increased risk peculiar to his employment that a dead tree might fall on him than the general public in the same place and at the same time might face." Rosasco could not prove that his employer told him to use the portable restroom nearby, and the employer claimed it was company policy to ask the homeowner for access to their household bathroom. The Opinion The question on appeal was whether Rosasco's injuries arose primarily out of his employment. The Board noted that the phrase "arising out of" in the statutory definition of "injury" refers to a causal connection between the conditions under which the work is required to be performed and the resulting injury. Also, the event causing the injury must have its origin in a risk connected with the employment. Generally, when an employee is injured as a result of an "act of God" or a natural hazard, to satisfy the "arising out of" requirement, the employee must prove that the injury was caused by an increased risk peculiar to the nature of the employment and not a hazard common to the general public at the time and place where it occurred. Continued on page 13 Tennessee's three-judge Workers Compensation Appeals Board