Author: Chris Boggs
Only “occupational" injuries are covered by workers' compensation. To be “occupational" and thus compensable, the injury must “arise out of and be in the course and scope of employment." These three distinct tests must all be satisfied:
1. An injury “arise out of…" employment when there is a causal connection between the furtherance of the insured's business and the injury. If the insured benefits from the employee's activity, then the injury the worker suffered during the activity is likely considered to have “arisen out of the employment." States apply one of three doctrines of “causal connection" in determining compensability:
a. Increased Risk Doctrine: There is something about the employment that increases the chance of an injury when compared to the risk to the general public.
b. Actual Risk Doctrine (closely related to the Increased Risk Doctrine): This is the risk of employment. The employment itself presents a risk of injury. The workplace creates the situation that results in injury.
c. Positional Risk Doctrine. Simply being at work is enough to meet the “arising out of…" requirement.
2. “In the course of…" is a function of the timing and location. Did the injury occur:
- During the worker's operations/activities for the employer – regardless of the time of day; and
- At a location the employer could have expected the employee to be? If so, then the injury was in the course of employment; and
3. “Within the scope of employment." This test more specifically defines the first two tests by: 1) analyzing the motivations of the worker; 2) analyzing the employer's direction and control over the actions of the worker; and 3) analyzing the employer's ability to foresee the activities of the worker. If the employee was acting under the employer's presumed direction, control, knowledge and expectations, then the injury will likely be considered “occupational."
Remember, injuries can “arise out of" and “be in the course of" employment without being “within the scope of" employment. Unless all three tests are satisfied, workers' compensation coverage can be denied!
Some injuries look “occupational" because of the location or surrounding events; but certain injuries suffered at certain times or while participating in certain activities are considered “non-occupational" and are thus not compensable. Examples of generally non-occupational situations include:
1. Injury suffered travelling to or home from work (known as the “coming and going rule").
Injury suffered traveling to work or home from work is generally not compensable. Likewise, injuries suffered travelling to or back from eating are not generally compensable. This is known as the coming and going rule. A reason the coming and going rule applies in these circumstances is because the employee is not furthering the employer's interest or serving the business' needs when travelling to work, to eat or from eating, or home from work. The employee is serving his own purposes and furthering his own cause during this course of travel.
As you can probably guess, exceptions to the coming and going rule do exist. Anytime travel is an integral part of employment or such travel furthers the employer's business, the coming and going rule is superseded, making injury compensable. Examples of travel considered integral to the employment includes travel between jobsites and travel to meet clients.
Other “special hazard" exceptions to the coming and going rule include:
- Employer-furnished transportation. If the employer undertakes to provide group transportation to and from the office or job site, injury suffered during the trip is compensable.
- The employee performs a beneficial errand for the employer. Going to the bank, the post office or on any other errand to further the employers' business qualifies as a beneficial errand. If the errand requires the employee to deviate from his or her normal route, any injury suffered from the time the employee leaves the premises until he or she returns to their normal route is likely compensable. Errands taking the employee away from normal “ways and means" are considered "for the benefit" of the employer making injury compensable;
- Injury suffered by an "on call" employee. Doctors and other medical personnel, emergency response personnel or those in employments who must be ready to respond when the "call" comes are considered to be within the course and scope of employment immediately upon responding to the call. The drive to work is considered to be part of furthering the employer's business making injury compensable;
- If the employer reimburses or pays the employees transportation costs, the trip is considered business-related and for the benefit of the employer. Injury suffered is compensable unless abandonment of employment is proven;
- Injury suffered once the employee enters the parking lot. Courts allow a reasonable time for employees to reach their assigned workstation. During this time, the employee is considered to be in the course and scope of employment. "The clock" begins to tick (so to speak) when the employee arrives in the parking lot. The reverse is true; the employee is considered to be within course and scope until he leaves the parking lot. Injury suffered prior to and after leaving the parking lot is not covered due to the coming and going rule (unless one of the other exceptions apply). The breadth of this special exception is applied differently by each state.
2. Injury suffered while the employee is engaged in horseplay or practical jokes.
Depending on the jurisdiction, injury to the practical joker or instigator are likely be considered “non-occupational" and thus not compensable; however, the victim may be considered eligible for workers' compensation benefits. The court generally makes the final decision.
Prevailing opinion now centers on and applies "Larson's Workers' Compensation Law" (“Larson"). Larson applies a four-part test to establish compensability. These are:
- The extent and seriousness of the deviation. Was the horseplay "reasonable" or did the parties go so far out of the way as to constitute unreasonable deviation?
- The completeness of the deviation. Was the horseplay comingled with the regular performance of duties or did it involve (and require) a total or near total abandonment of duty?
- The extent to which the practice of horseplay is an accepted part of the employment. If horseplay, practical jokes and hazing are common and not discouraged or forbidden by the employer, then it is reasonably judged to be part of normal employment and within the course and scope of employment.
- The extent to which the nature of employment may be expected to include some horseplay. Some occupations lend themselves to horseplay and practical jokes; when they do, the injury suffered is considered occupational.
According to Larson itself, there is no requirement that all four tests be satisfied for a horseplay-related injury to be compensable.
3. Injury suffered while participating in recreational activities.
Participation in recreational activities is generally a personal choice and not part of business operations. Injury suffered while participating in recreational activities are rarely considered occupational and compensable. However, the facts surrounding the injury can move such injury from “non-occupational" to “occupational" and thus compensable under workers' compensation. Four tests are applied to the facts surrounding the injury to decide compensability:
- Did the accident occur on the employer's premises? Answering “yes" does not guarantee compensability. A key factor to decide compensability is knowing whether the employer directly benefited from the activity. An employer making recreational facilities available does not automatically make the injury compensable. But neither is it required that the injury occur on the employer's premises for the injury to be compensable.
- Was the event or team organized by the employer? Company-organized teams (i.e. bowling or softball) may qualify under this provision. However, several employees deciding to form a team is wholly different from a team organized by the employer.
- Did the employer pay for the activity? It is unclear if this guideline requires the employer to cover the total cost for injury to be compensable. It is possible that simply subsidizing the cost of the team could make the injuries compensable.
- Did the employer benefit? Advertising in the community, improved employee morale or better teamwork; an employer can “benefit" from these activities in more ways than tangible outputs. If the employer benefits from the activity, it is possible any injury may be considered occupational and thus compensable.
Employee picnics, team building outings and Christmas dinners are a few examples of other types of recreational and social activities (force fun) that may lead to compensable injuries. State statutes should be reviewed regarding the issue of recreational activities. Some states have adopted relatively pro-employer statutes to limit compensability to activities in which employees are "expected" to participate. If asked, recommend insureds make any recreational activities or outings truly optional.
Remember, workers' compensation applies to only occupational injuries. To be occupational, the injury must arise out of and be in the course and scope of employment. Although this sounds like an easy-to-apply guideline, nothing about “occupational" is easy to apply. Exclusions, exceptions, exceptions to exceptions, statutes and common law all play a part in determining “occupational" and thus compensable.
Here is some advice to live by when it comes to workers' compensation and the compensability of an injury: Never give your opinion on the compensability of an injury. You can have your opinion, just don't voice it; let the carrier make the decision. Workers' compensation is a fact-based coverage subject to legal interpretations.
Last Updated: December 6, 2019