Dawson v. a & H MFG. CO.

463 A.2d 519, 1983 R.I. LEXIS 1053

• Court: Supreme Court of Rhode Island
• Decided: August 5, 1983
• Docket: 81-1-Appeal
• Status: Published

Opinions

OPINION

WEISBERGER, Justice.

This case comes before us on appeal from a final decree of the appellate commission denying compensation to the petitioner for incapacity arising out of a bee sting. We affirm. The facts of the case as found by the trial commissioner are as follows.

Kenneth Dawson (employee) was employed by A & H Mfg. Co. (employer) as a stock boy for a period of approximately four months. Sometime in October of 1977 he left his workplace on the fourth floor and went downstairs to obtain a cup of coffee. In the course of returning to the fourth floor to eat his lunch, he was stung by a bee in the hallway. The employee notified his foreman of this fact and continued to work. On the following day he went to the hospital at 8:30 a.m. and called his foreman. He was asked to come in for a half day and did. Apparently the employee was discharged the next day. The exact date of the bee sting was not established. The trial commissioner denied compensation on the ground that the employee failed to prove that he had sustained a personal injury in October 1977 “which arose out of and in the course of his employment * * * connected therewith and referable thereto.”¹ The appellate commission sustained the trial commissioner’s finding of fact and conclusion of law that the bee sting did not arise out of and in the course of the employee’s employment. In its decision the appellate commission noted that

“no transcript of the petitioner’s testimony as to the facts or circumstances surrounding the petitioner’s bee sting in this case has been provided for us, the only transcript before us on appeal being the colloquy between counsel and the trial commissioner with respect to deciding this case on an issue of law. Therefore, we * * * are unable to determine whether or not the circumstances surrounding this petitioner’s bee sting were such so as to bring it within the course of his employment.”

The appellate commission took the position that “the mere fact that the petitioner was stung by a bee during working hours while at work does not make the case com-pensable” and noted, as had the trial commissioner, that the employer is not the insurer of the employee’s health. Zuchowski v. United States Rubber Co., 102 R.I. 165, 229 A.2d 61 (1967).

In Zuchowski we observed:

“The workmen’s compensation act does not provide that every workman who is injured while in his place of employment shall be compensated for his injury. * * The mere coincidence that petitioner happened to fall in respondent’s plant on the floor (ideopathic fall) in and of itself does not transfer a non-compensable injury into one which will confer benefits under the compensation act. To hold as petitioner contends would convert workmen’s compensation into a form of health insurance. This we cannot accept, as it was never the intent of the [legislature to afford this type of protection to an injured workman.” Id. at 174-75, 229 A.2d at 66.

We have recently stated in DeNardo v. Fairmount Foundries Cranston, Inc., 121 , 399 A.2d 1229 (1979) that an employee’s injury is compensable if the particular facts of a case establish a causal connection or nexus between the injury and employment. We further held that the question of whether an injury arose out of and in the course of employment is a mixed question of law and fact. Since a finding of fact by the commission is beyond the scope of our review if supported by competent legal evidence, see, e.g., Beauchesne v. David London & Co., 118 R.I. 651, 375 A.2d 920 (1977); Knowlton v. Porter Trucking Co., 117 R.I. 28, 362 A.2d 131 (1976), we shall substitute our judgment for that of the appellate commission only when the facts, as found by the commission and supported by competent legal evidence, permit reasonable men to draw only one conclusion. This standard is applicable even when relevant facts are not in dispute. DeNardo v. Fairmount Foundries Cranston, Inc., 121 R.I. at 444, 399 A.2d at 1232.

Professor Larson discusses the varying lines of authority regarding the compensa-bility of employee injuries that are caused by neutral forces as follows:

“Of the two components of the almost-universal coverage formula — ‘arising out of and in the course of’ employment — the ‘arising out of’ test is primarily concerned with causal connection.' Most courts in the past have interpreted ‘arising out of employment’ to require a showing that the injury was caused by an increased risk to which claimant, as distinct from the general public, was subjected by his employment. A substantial number have now modified this to accept a showing merely that the risk, even if common to the public, was actually a risk of this employment. An important and growing group of jurisdictions has adopted the positional-risk test, under which an injury is compensable if it would not have happened but for the fact that the conditions or obligations of the employment put claimant in the position where he was injured.” 1 Larson, Workmen’s Compensation Law, § 6.0 at 3-1 (1982).

Under this rubric Professor Larson describes the peculiar-risk doctrine, § 6.20; the increased-risk doctrine, § 6.30; the actual-risk doctrine, § 6.40; and the positional-risk doctrine, § 6.50. He further comments in detail about varying neutral forces, including acts of God such as lightning, hurricanes, and tornadoes, as well as roving lunatics, flying arrows, stray bullets, and other forces that are not specifically connected with the employment but might occur while an employee is at his place of business. He discusses injury by animals and insects in § 10.12, n. 32. Except for New York, which has applied a positional-risk test, state courts base compensation for bee stings upon an actual-risk test in which evidence has been presented showing that the bee hazard was part of the environment of employment. See Electro-Voice, Inc. v. O’Dell, 519 S.W.2d 395 (Tenn.1975); Travelers Insurance Co. v. Williams, 378 S.W.2d 110 (Tex.Civ.App.1964). As yet only a minority of states has adopted the positional-risk test, which in essence makes all injuries, however neutral and unconnected with employment, compensable if they occurred at the place of employment. See 1 Larson, Workmen’s Compensation Law §§ 10.11 through 10.33(d) at 3-65 to 3-134. Our holdings denying compensation in Nowicki v. Byrne, 73 R.I. 89, 54 A.2d 7 (1947), involving injury by a stray bullet and Zuchowski v. United States Rubber Co., siipra, involving an ideopathic fall, clearly indicate that Rhode Island has not adopted a positional-risk test and probably should be placed in the actual-risk category. See Long v. Gorham Corp., 100 R.I. 711, 219 A.2d 214 (1966); Corry v. Commissioned Officers’ Mess (Open), 78 R.I. 264, 81 A.2d 689 (1951).

In order to establish a predicate for application of the actual-risk theory, the employee would be required to sustain the burden of showing that this risk, even though common to the public, was in fact a risk of his employment. 1 Larson, Workmen’s Compensation Law § 6.40 at 3-4, 3-5. The complete absence of evidence concerning the nexus between this employment and the bee sting justified the commission in its finding that the employee had failed to meet his burden of proof on this issue. We cannot say, in accordance with our holding in DeNardo, that on these facts reasonable persons could draw only one conclusion.

For the reasons stated, the employee’s appeal is denied and dismissed, the final decree of the appellate commission is affirmed, and the papers in the case may be remanded to the appellate commission.

1 . The employee had filed a previous petition for compensation arising out of the same incident. This petition was discontinued for lack of prosecution in October 1978. Thereafter, the employee filed the instant petition. The employer argued before the trial commissioner and the appellate commission that the' involuntary discontinuance of the first petition was the equivalent of a dismissal. Both the trial commissioner and the appellate commission declined to dismiss the instant petition on that ground. In light of our disposition of the issue of com-pensability of this injury, it will be unnecessary for us to address the employer’s contentions on this issue. We shall assume without deciding, that the petition was properly before the commission.