Employers May Be Responsible for Airborne Hazards

Claimant was a school administrator who claimed to be exposed airborne construction debris from work that was being performed next door to her school during the summer months. During the construction, Claimant complained of dust on her vehicle, but she only witnessed dust on the vehicle after she “clocked out” for the day and was approaching her vehicle to leave the premises. Claimant was eventually hospitalized when she became unable to breathe and was diagnosed with advanced interstitial lung disease, exacerbating her preexisting asthma. Claimant filed a claim for indemnity and medical benefits.

Employer filed a motion for summary judgment arguing that Claimant’s injury did not arise out of or in the course of her employment, as all of her exposure occurred before her job duties began, or after they ended, and because the risk from which Claimant’s injury resulted was no greater for Claimant as an employee than it was for a non-employee. Claimant argued that her exposure took place both in the parking lot and within the school building where her office was located. The OWC granted Employer’s motion and Claimant appealed.

Employer argued on appeal that the exposure to airborne particulates did not arise out of Claimant’s employment, as the risk of exposure was not exclusive to Employer’s employees, and was also a risk for the general public. Employer contended that the risk encountered was an “open air hazard” not caused by Claimant’s employment. The court noted that an accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of her duties during working hours, either on the employer’s premises or at other places where employment activities take the employee. While coverage has been extended in some cases to include periods before and after work on the employer’s premises, the principal criteria for determining course of employment are time, place, and employment activity. Further, an accident arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. The court found that to meet the test, an employee on the employer’s premises must encounter the risk to a greater extent and frequency than the general public. The court found that Employer did not show, with undisputed facts, that the public was equally susceptible to the risk of dust exposure or that airborne dust that Claimant encountered was a risk encountered everywhere independent of location. The court reversed the order granting Employer’s motion for summary judgment.

Sislo v. New Orleans Center for Creative Arts