Jake takes a break from his drill press at the employer's appointed time, heads down the steps to the company break room for a Coke, slips on the last step, and breaks his ankle. Is he in the course of employment such that the workers' compensation and employer's liability policy will cover the incident?

Jill takes a break from her drill press, at something other than the employer's appointed time, heads down the steps, side-steps the company break room, walks out the front door, and, while crossing the street at the crosswalk on her way to the bodega for a soda, gets hit by a car. Is she in the course of employment such that the workers' compensation and employer's liability policy will cover the incident?

John takes a break from selling shoes, at the employer's appointed time, heads down the steps, and, because the company does not have a break room, goes out the front door heading for the Seven-Eleven. While illegally crossing the street, he is hit by a car. Is he in the course of employment?

Jackie takes a break from selling shoes, at the appointed lunch time, gets in her car with two coworkers and a friend who was just passing by, and, while on her way to the Local Lunch Disco, gets hit by another car. Is she in the course of employment?

Jason takes a break from his walnut desk, heads for the Executive Lunchroom, slips on a banana purposely left there by a disgruntled employee, falls, and breaks his arm. Is he in the course of employment such that the workers' compensation and employer's liability policy will cover the incident?

OK, enough Jack-and-Jill-Went-Up-The-Hill stuff. My question to you today is: were any of these workers, or all of these workers, in the course of employment for coverage purposes under the standard National Council on Compensation Insurance workers' compensation and employer's liability policy, or its counterpart in jurisdictions using some other comparable form?

This is kind of a trick question. The answer is: it doesn't matter what the policy says, or what expert insurance commentators say on the matter of what the policy covers. If whoever decides workers' compensation disputes in any given jurisdiction, be that an administrative or judicial process (including appeals), says that the injury is compensable, benefits will be paid. The insurer, the employer, no one has any other say in the matter.

That's the point here. Workers' compensation is a bit different than other insurance contracts or agreements. The insuring agreement pledges “to pay promptly when due the benefits required by law.” It is a determination by officials who mediate or decide workers' compensation cases that a given injury was sustained in the course of employment that decides whether benefits will be paid.

Quoting from the Ohio Supreme Court on the topic: “The test of the right to participate in the workers' compensation fund is whether a causal connection existed between an employee's injury and his employment, either through the activities, the conditions, or the environment of the employment.”

As is known to anyone who has engaged in the study of insurance (and who hasn't?), the workers' compensation system was one of the triumphs of the Industrial Age. The system is the cumulative result of years of strife and compromise between employer/owners and employee/labor. In the workers' compensation system, injured employees relinquish the right to sue their employers for employment-related injuries in return for a statutorily imposed mechanism that provides specific scheduled benefits. Instead of an eye-for-an-eye or a tooth-for-a-tooth, it's $so much for a finger and $this much for a hand.

Personal Comfort

The examples that started this column are examples of the personal comfort doctrine. These are cases in which courts have been called upon to decide whether a worker seeking to satisfy some personal desire (getting a drink, going to the restroom, walking to a telephone to make a personal call, etc.) are within the course of employment. The Wisconsin Supreme Court has stated, “Employees who engage in acts which minister to personal comfort do not, thereby, leave the course of employment, unless the departure is so great that an intent to abandon the job temporarily may be inferred.” The court listed some in-the-course-of-employment activities: getting a drink or eating a meal on the premises, warming oneself, sleeping in an employer-provided place, going to the bathroom, or coming into the office to get paid.

In the state of Virginia (Kraf Construction Services, Inc. v. Ingram, 1993), the court found that there may be restrictions on how a worker satisfies personal desires in order to remain within the workers' compensation system: the worker must use the facilities provided by the employer and is not supposed to go elsewhere. Therefore, in our scenarios, it makes a difference whether there is a company break room, or whether company policy is clear that leaving the place of employment is outside of business activities.

In the end, such activities must be reasonable and not expressly forbidden by the employer. I will leave individual judgments on Jake, Jill, John, and the rest for the various courts and administrators.

Bruce Hillman is editorial director, Professional Publishing Division, of the National Underwriter Co.

The FC&S Claim Queue is prepared and written by the editorial staff of The Fire, Casualty and Surety (FC&S) Bulletins, the most widely used encyclopedic reference service devoted to insurance policy interpretation and coverage topics. FC&S is published by The National Underwriter Company. For more on FC&S, visit www.fcsbulletins.com

Special Reports /

Jake, Jill, Broken Bones, and the Course of Employment

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