Workers’ Compensation and Cold Weather

Posted on Tuesday, December 8th, 2020 at 1:32 pm    

We’ve written before about some of the types of accidents workers have when the weather gets cold – Worker’s Compensation and Winter Safety | Joe Miller Law, Ltd. (joemillerinjurylaw.com). Some of the major types of cold-weather accidents and injuries for workers include. Probably the most common type of injury is a slip and fall due to ice, melting water, and slippery surfaces. Cold weather cause potholes and pavement cracks which can also make falls likely.

Common cold weather injuries include frostbite, hypothermia, and back injuries. People who work outside such as construction workers, agricultural workers, and roadway maintenance crews are most at risk of suffering from the cold. 

Unfortunately, the notion of a worker’s compensation claim for injury such as frostbite or hypothermia is not as easy as a normal type of “accident” such as a slip or fall. This is because usually, frostbite and injuries like it occur over a span of time, sometimes days, and not in a particular moment. Generally, with very few exceptions, workers compensation law in both Virginia and North Carolina do not permit recovery for repetitive trauma injuries. In other words, if you cannot pin down your injury to a very specific period of time as well as conditions and assignments, you will have no case. 

A review of the case law tends to indicate that in, for instance, a frostbite situation, if the frostbite is brought on over several days or months in the cold weather, it may be difficult to bring a workers’ compensation claim for an injury by accident. If, however, the frostbite occurs as a result of a very limited, say, four or five hour uninterrupted exposure to extreme cold due to a set of tasks that the injured worker is required to perform, that may satisfy the requirement that the injury occur during a specific, identifiable period of time. Of course, this must be backed up with a qualified physician’s opinion. 

All that being said, there may be another option that is revealed by a review of the case law. Frostbite, hypothermia and other such cold-induced conditions could also be considered to be an occupational disease. To bring such a case, one would have to show, through clear and convincing evidence, that the unique conditions of work brought about the injury. Again, one needs to be prepared with a very clear physicians’ opinion that the specific injuries were a result of exposure to extreme cold at work. 

Best cold-weather practices for employers and employees

Many cold weather injuries are preventable with proper planning, training, and safety protocols. Some of these common strategies include:

  • Being prepared for cleaning snow and ice when it occurs
  • Having backup generators, heaters, and other equipment so workers can do their jobs and stay warm when the temperature drops
  • Having plans for stopping work when it gets too windy. For example, ladders and scaffolds are especially dangerous when the winds are too high.
  • Having the proper clothing and work gear for workers so they can work outside if it’s too cold. This includes protective equipment so that cold and rain doesn’t get in the worker’s eyes. Proper clothing should also include footwear to provide better traction and to prevent the worker’s feet and toes from getting too cold. Workers should have gloves, hats, thermal wear, and other protective clothing.
  • Hiring and using maintenance crews to inspect outside areas and entrances to inside areas for wet, cold, and slippery surfaces. Until the repairs can be done, the employer should place warning signs around all the dangerous sites.
  • Being vigilant about salting and de-icing any means of ingress and egress into work buildings. 

What steps should a worker take if a cold-related injury is suspected?

Workers have two priorities if a cold-weather injury such as frostbite or hypothermia is suspected: The first is to get immediate help. If the employer has in-house health care, they can help there. Otherwise, it’s advisable to call 911 or contact your emergency room. Workers may be in shock. The worker may not be aware of the extent of their injuries. Emergency medical personnel should be able to advise the worker and a supervisor whether the worker can be moved safely to the hospital or if emergency on-site care is needed.

The second priority is that workers who are physically able to need to notify their employer (usually a supervisor or manager) that they can’t work anymore due to the cold. If you can’t tell your employer immediately, you should inform your employer as soon as possible after you receive emergency medical treatment.

As mentioned above, unless one suffered an accident such as slipping on ice, workers who suffer injuries due to cold weather conditions such as frostbite or hypothermia may find it more difficult to prove their claim. If they cannot prove that the frostbite or hypothermia was a result of a very defined and specific period of time of no more than a few hours of exposure to extreme cold, the only other option would be to attempt to prove their case through the means of occupational disease, which is more difficult. 

Assuming the injured worker could prove his or her claim, the worker would have the right to file for workers’ compensation. Many injuries can take weeks or months to heal. During the time period where the worker is unable to work, the worker is entitled to:

  • Payment of all reasonable and necessary medical expenses
  • A percentage (about 2/3rds) of the workers pre-accident average weekly wages for the time they can’t do their job

General winter tips for workers

Workers and employers should also advise and prepare their workers for cold weather by:

  • Making sure they stay properly hydrated. Hydration can help manage dry skin and the itching and irritation dry skin causes
  • Making sure to focus on keeping the extremities warm – ears, finger, and toes
  • Eating plenty of fruits and vegetables to balance all Holiday carbohydrate treats
  • Getting some sun and fresh air when possible. Even before the pandemic, it was and still is important to spend some side outside
  • Keeping in shape. Get plenty of exercise.
  • Minimizing contact. As we all know now, shaking hands and close contact spreads germs and the flu. 
  • Washing your hands regularly
  • Knowing the signs of frostbite and hypothermia

Some ways to keep warm (and things to avoid) include:

  • Making sure your smoke detectors are working
  • Being extra careful when using candles
  • Turning off any portable heat-soured device when you go to sleep and when you leave home

A few winter driving safety tips

Many workers such as truck workers and delivery workers are entitled to workers’ compensation benefits if they are injured as a result of an accident while making deliveries. Salespeople and other workers may be entitled to work injury benefits too – if they have a vehicle accident AND if the accident occurs during the scope of their employment. With some exceptions, commuting back and forth to work is not considered within the scope of employment.

A few common safety tips for cold weather driving include:

  • Keeping longer distances between you and other drivers especially the driver in front of you
  • Being prepared to leave the road if the snow, sleet, hail, wind, or rain gets too intense to make driving safe
  • Allowing for much longer stopping distances
  • Allowing for more time to achieve your tasks
  • Having weather-related tools in your vehicle such as shovels and salt to help melt the ice
  • Making extra sure your windshield wipers work, your mirrors are clear, and your window defrosters work
  • Making extra sure your headlights are in good working order

According to Business Insurance:

  • Businesses may consider less formal dress codes – so people are encouraged to wear boots and stay warm.
  • Installing signs to warn people of cold-weather dangers
  • Making sure to inspect the property more often for uneven or slippery surfaces
  • Having more dry mats for people to wipe their feet

“Construction and utility, postal carriers, delivery personnel and employees in other similar positions may be negatively affected by improper protective clothing and training in the bitter cold, which could lead to hypothermia and/or frostbite, noted Ms. Roth.”

Employers who fail to take necessary precautions may be subject to OSHA violations.

Speak with an experienced North Carolina and Virginia workers’ compensation lawyer today

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. understands the many reasons why workplace accidents occur. It is not necessary to prove your employer was at fault in order to receive workers’ compensation benefits. The focus on considering safety measures in cold weather or any weather is to try to avoid the accident from happening. For help with any work injury claim, contact a seasoned North Carolina and Virginia workers’ compensation attorney. You can reach attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to schedule an appointment. You can use complete our New Electronic Case Review. It’s a new way we’re offering workers to contact us remotely, particularly if they are awake after normal business hours.