While performing his job, a construction company supervisor fell off a snowy, icy, wet roof. He was awarded workers’ compensation benefits, but his employer appealed that decision.

What happened. “Carlos” worked as a site supervisor for G. C. Construction. His job responsibilities included inspecting job sites by walking the site, climbing ladders, and walking on roofs.

In February 2010, Carlos was assigned to a project involving the construction of a two-story garage. After work on the project was halted for 2 weeks because of snow, he returned to the work site on February 23, 2010, and discovered a leak in the ceiling. He climbed onto the roof to find the source of the leak and saw “ice, snow and water” on the roof.

After either taking a misstep or slipping, Carlos fell 25 feet to the ground below, landing on snow and work debris and injuring his pelvis, lower back, knee, and both shoulders. He remained conscious during the incident and was not aware of anything other than taking a misstep or slipping that could have caused the fall.

The next day he was treated at a hospital. His doctor issued a work note on May 10, 2010, releasing Carlos to modified duty and a “sit-down” job only. In a second work note issued in June 2010, the doctor released Carlos to modified duty with limited bending, stooping, climbing, kneeling, crawling, lifting, and carrying. He also restricted Carlos to a sit-down job for 2 hours per day in addition to “customer visits.”

In August 2010, a doctor treating Carlos for his back problems allowed him to return to light-duty work 3 days after receiving epidural injections. In September 2010, the doctor allowed him to work on light duty for 4 hours per day instead of 2. In November 2010, the doctor recommended back surgery, but the employer and insurance company refused to pay for it.

After his fall, Carlos worked all the available hours approved by his treating physicians and did not refuse any offer of light-duty work from his employer.

Finding that Carlos did not have additional wage earning capacity and was not required to market any such capacity beyond the hours he was working for G. C. Construction, the deputy commissioner for the Workers’ Compensation Commission awarded Carlos temporary total disability benefits, temporary partial disability benefits, and medical benefits.

The employer and its insurance company appealed to the full Workers’ Compensation Commission, which awarded Carlos compensation for the injuries he sustained at work. The employer and insurance company appealed the decision, contending that the commission erred in finding that Carlos sustained a compensable injury by accident and that he made reasonable attempts to market his remaining work capacity by working part-time at G. C. Construction.

What the court said. The Court of Appeals of Virginia affirmed the commission’s decision.  While performing his job at a work site, Carlos “was on the roof, twenty-five feet above the ground, looking for the source of a leak when he slipped or misstepped before falling. Because he was not looking at his feet and was looking for a tree or something that caused the roof to leak, … [Carlos’] ‘injury occurred because of the performance of his job duties in a particular manner’,” the court said, citing another case.

In regard to the employer’s contention that Carlos did not make reasonable attempts to market his remaining work capacity, the court said “… it was undisputed that … [Carlos] could not return to his full-time pre-injury employment position and that he accepted the light-duty position offered by his employer, within the tolerance levels imposed by his physical condition, and he worked the maximum number of hours as restricted by his treating physicians,” the court said.

In addition, the court noted that, under state law, if Carlos had refused the position, his right to benefits may have been terminated. G. C. Construction, LLC, et al. v. Cruz, Court of Appeals of Virginia, No. 1245-11-4 (3/6/12).

Point to remember: For an injury to be compensable under state law, it must have occurred “by accident arising out of and in the course of the employment,” the court explained.