Isaac Camarena, v. Piat, Inc., No. WC24-6563 (WCCA, November 4, 2024)
The employee worked as a restoration technician for the Employer. His duties included demolition of damaged or contaminated drywall. Before the injury, the Employee had an incident when debris fell into his right eye. He received medical treatment and after the incident, the employer instructed him to wear eye protection. Also, the Employee did attend attended safety training where use of eye protection and personal protective equipment were discussed.
On October 3, 2022, the employee began working at a jobsite where a sewer back-up left two inches of standing water containing fecal matter. Extractors, fans, and dehumidifiers were used to dry the jobsite. While the contaminated water was present, the employee wore full PPE. Couple of days later, on October 5, 2022, the jobsite had dried and the employee began cutting the drywall and felt something go into his left eye. The employee did not wear PPE on October 5, 2022, and he cannot recall whether he was wearing goggles. He continued to have a scratching sensation in his eye. The next day, October 6, 2022, he returned to the jobsite to remove screws from the walls and scrub the floors. Two coworkers commented that he had redness in his left eye.
On October 7, 2022, he was sent to a jobsite at a restaurant to work on a grease chute. He removed drywall and insulation and used chemicals to clean. Following work, his eye became painful and sensitive to light. He was scheduled to work on October 8, 2022, but he awoke to his left eye closed and sensitive to light. He called into work, reported the injury, and informed the employer that he was seeking medical care. He saw different providers and eventually was diagnosed with corneal ulcer “likely secondary to possible corneal abrasion the previous week combined with poor contact lens hygiene.”
The Employer and Insurer obtained an IME who found that alleged incident on October 5, 2022, was not a substantial contributing cause to the employee’s condition and that the employee’s use of contact lenses with a history of poor contact lens hygiene and a delay in seeking treatment was the cause of his condition. The employee’s attorney obtained narrative report from Dr. Chanbour who opined that given the advanced stage of the infection by October 10, 2022, it is highly likely that the infection had been developing for more than three days before that date
The case was heard by the compensation judge and the initial issues were whether the employee suffered an injury to his left eye arising out of and in the course and scope of employment, calculation of the employee’s average weekly wage, eligibility for TTD benefits, reimbursement of medical mileage, and extinguishing the interests of potential intervenors. The employee was the only witness to testify. He testified that he was instructed to wear goggles at every job site. He also testified that the directions were to wear a hard hat and safety glasses when removing ceilings. After the employee’s direct testimony, the employer and insurer raised the additional issue of whether the employee committed a prohibited act. There was no testimony or other evidence provided regarding the manner in which the eye protection requirement was generally enforced by the employer.
The compensation judge found that the Employee’s eye injury arose out of and in the course of his employment and Employee’s claim was not barred by the prohibited act doctrine. Employer and insurer appealed.
The WCCA essentially agreed with the compensation Judge finding that the found the Employee’s testimony was credible and the Employee’s narrative report was more persuasive. With respect to the prohibited act, the WCCA disagreed with the employer and insurer’s argument that employee’s failure to wear safety goggle while doing drywall removal was a prohibited act.
The WCCA noted that the compensation judge analyzed the six Hassan factor needed to determine whether the doctrine applies and agreed that the employer and insurer did not show by credible evidence that the employer prohibited employees from performing all work on jobsites without googles. This was based on the fact that the accident investigation form simply indicated that proper eye protection was discussed, that the form was not signed, and that “proper eye protection” was not defined.
In addition to the Hassan factors, the compensation judge’s finding that the employee’s claims are not precluded by the prohibited act doctrine is also supported by the fact that the employee’s act of performing his job duty, specifically taking down drywall, was not a prohibited act. The WCCA noted that even if taking down drywall without protective eye gear was a violation of the employer’s policy, performing a permissible act in an impermissible manner does not bar an employee from receiving benefits.