N.J. Appellate Division Weighs in on Workers’ Compensation Lawsuit Against Walmart

Not all injuries that happen at work are compensable under Workers’ Compensation law. On April 26, 2010, 36-year-old Colleen Fitzgerald was walking around a South Jersey Walmart doing her job when she felt a “pop” in her lower back. As a zone merchandising supervisor (ZMS) for the store, some of her duties included working at the courtesy desk, running the cash register, getting bags, stocking shelves, pushing and pulling pallets, and moving shopping carts during the daily stocking and re-stocking process. Ms. Fitzgerald testified that prior to the onset of her pain, she had been working around the register doing light lifting. Then, as she went to walk down Walmart’s “action alley,” she took a step and felt a pop in her lower back, and the pain then began radiating down her body.

She reported the incident to her manager, and when she returned to work the following day, her pain had gotten worse and she went home. She had no back problems prior to this incident. Her primary care physician diagnosed her with protruding lumbar discs. He recommended that she take a 12-week leave of absence from work. She filled out Walmart’s Leave of Absence forms, but did not list the reason for her injury as a “workers’ compensation” injury. Instead, she stated she was leaving for her “own serious health condition.” She testified that she used her own insurance to cover her treatment because she didn’t know she might be eligible for Workers’ Compensation, and didn’t know that her injury would be permanent.

She returned to work after 12 weeks, but was subsequently terminated as a result of a non-work related slip-and-fall accident that shattered her elbow. Walmart’s Workers’ Compensation carrier never authorized any of her treatment for the April 10, 2010 injury.

The petitioner filed two claim petitions, one for the April 26, 2010 incident, and another occupational claim for work she had done between 2008 and 2010 at Walmart. Walmart denied both claims, so the petitioner filed a Motion for Medical and Temporary Disability benefits with the Camden Vicinage Workers’ Compensation Court. The judge found in favor of Walmart and she appealed. The Appellate Division upheld the lower court’s decision.

The Court applied the two-step “potential risk test” for determining whether an employee’s injury arose out of the course of employment, and would thus be compensable. The first part of the test requires a petitioner to establish that “but for” their job duties, the injury wouldn’t have happened. Then, the court must analyze the “nature of the risk” that caused the injury.

The court reasoned that since Ms. Fitzgerald was just walking when the alleged injury occurred, it could easily have happened when she was not at work. The court also found that there was nothing about her job description that put her at risk for suffering protruding lumbar discs.

If you have suffered an injury while at work, contact an experienced Monmouth County Workers’ Compensation lawyer at Shebell & Shebell prior to filling out any forms for your employer. Although not all on-the-job injuries are compensable through Workers’ Compensation, our knowledgeable lawyers can counsel you regarding your options. For a free consultation, call us at 866-957-5237 or contact us online today.

Practice Areas of Shebell & Shebell LLC – Personal Injury Lawyers