Workers Compensation: When is an Injury considered to be in the “course of employment”?
For an injury to be compensable under workers’ compensation law, it must be work-related. In many states, this means that the employee must prove that the injury both: 1) arose out of the employment, and 2) occurred in the course of employment.[i] Though these two tests sound similar, they are distinct.
Arising Out of Employment
When a court determines whether an injury arose out of the employment, the focus is on the origin or cause of the injury.[ii] If an injury arises out of the employment, it is the result of a hazard of the employment.[iii]
Some states require a claimant to provide particular types of evidence to show that the injury arose out of the employment. For example, California requires that a physician provide evidence as to not only whether, but how the employment led to the injury. This may require the claimant to provide a medical report that describes how the work-related event resulted in the specific injury that the claimant incurred.[iv]
Jurisdictions apply various tests to determine whether an injury arose out of employment, including: the Increased-Risk Doctrine, the Actual-Risk Doctrine, and the Positional-Risk Doctrine. The Increased-Risk Doctrine is the majority rule, and it requires that the employment increased the risk that the employee would come into contact with the source of the accident.[v] The Actual-Risk Doctrine is becoming more popular however. It requires that some aspect of employment actually brought the employee into contact with the harm. The Positional-Risk Doctrine requires that the injury would not have happened but for the employment bringing the employee into contact with (positioning him near) the harm.[vi]
The nature of some types of injuries makes it particularly difficult to determine whether they arose out of the employment. Therefore, state statutes may specifically address causation for these injuries. Two common examples are aggravation of a pre-existing condition and repetitive trauma.
Aggravation of a pre-existing condition can occur in two ways. First, a work-related injury can aggravate a pre-existing condition, making the pre-existing condition worse. Second, a pre-existing condition can aggravate a work-related injury, making the work-related injury worse.[vii] Although an employee can frequently recover for aggravation of a pre-existing condition, jurisdictions may use different means to limit recovery, including allowing benefits only when the employer had knowledge of the pre-existing condition at the time the employee was hired.[viii]
Repetitive trauma is a type of injury that occurs gradually over time, rather than being caused by an individual event. Therefore, it can be difficult to determine when or where they occurred. These injuries are caused when an employee does the same movement over and over again, such as using his hands on an assembly line, or walking on distinct flooring in your workspace each day. Perhaps the most common examples are carpal tunnel syndrome and tarsal tunnel syndrome. To prove repetitive trauma injuries, states may require specific findings by a treating physician or judge.[ix]
Causation for other types of injuries may also be addressed specifically under state statutes, including: acts of God or nature, occupational diseases, unexplainable accidents, medical malpractice; infections from work-mandated vaccinations, psychiatric injuries, Cancer, and hernia.[x]
Occurring in the Course of Employment
Whether an injury occurred in the course of employment depends upon the time, place, and circumstances of the accident.[xi] Although the laws vary from state-to-state, several basic rules are generally applicable.
The Going and Coming Rule states that if an employee is going to or coming home from work, he is not in the course of employment. Therefore, an injury incurred in going to or coming home from work will not be covered by workers’ compensation. Exceptions may exist however, where the employer pays for either the transportation or the worker’s travel time; or where the employee is still completing a task for the employer. There may also be an exception if the coming or going route is inherently dangerous and is either the exclusive route to work, or is maintained or constructed by the employer.[xii]
The Personal Comfort Rule applies when an employee eats, drinks, or seeks warmth, shelter, or medication while at work. Although these acts are personal to the employee, they are considered necessities, incidental to the work.[xiii] Therefore, when an employee eats a meal on the employer’s premises it is generally considered within the course of employment. If however, the employee leaves the premises to eat, any accident occurs is outside the course of employment, unless the employee was still completing a task for the employer.[xiv]
Generally, trips taken by an employee in furtherance of the employer’s business are considered within the course of employment, including both travel to out-of-town business meetings, and local travel during regular work hours.[xv] The Special Errand Rule ensures that such trips are within the course of employment even when an employee runs a special, emergency errand that may otherwise be excluded due to its nature or location, so long as the errand furthers the employer’s business purpose.[xvi] When the employee acts for the personal benefit of employer however, such acts are not covered, even though the employer gave the employee specific instructions.[xvii]
The Dual Purpose Doctrine applies to determine whether a trip is in the course of employment when the trip is part personal and part business. The trip is considered personal (and outside the course of employment) if it would have been made regardless of the additional business purpose, or if it would have been cancelled if the personal purpose became unnecessary. The trip is considered business (and within the course of employment) if it would have been made regardless of additional personal purpose, or if it would have been cancelled if the business purpose became unnecessary.[xviii]
Some acts are within the course of employment however, even if they are outside the employee’s regular duties. The Sudden Emergencies Doctrine allows compensation for employees who go outside regular duties due to a sudden emergency to rescue themselves, co-workers, or the employer’s property.[xix] Likewise, when an employee acts beyond his regular duties, but in good faith to advance the employer’s interests and to benefit a third party, such acts are covered. For example, a cashier who is hurt while chasing down a criminal who snatched a customer’s purse may receive workers’ compensation.[xx]
Whether injuries that occur due to practical jokes or horseplay are covered by workers’ compensation may depend upon what behaviors the employer allows at the workplace. Generally, non-participating victims of horseplay may get benefits. The acts of an employee who instigates horseplay however, generally will not be considered in the course of employment when the instigator seeks benefits, unless horseplay was generally allowed or accepted by the employer at the workplace.[xxi]
There is a multitude of ways that an employee can become injured during employment. Therefore, each state may have specific rules that address various types of incidents, beyond those stated above. In each case however, if the injury is to be covered by workers’ compensation it must be shown that it arose out of the employment and occurred within the course of employment.
[i] Beard, G. L., Poteat, S. T., Lamar, M. J., Sumwalt, V. R., Bluestein, M. M., & Sullivan, A.P. (2012). The law of workers’ compensation insurance in south carolina sixth edition. Course of employment (Chpt. 3, p. 95). Columbia, S.C.: South Carolina Bar Continuing Legal Education.
[ii] Beard at p. 95.
[iii] New York State Workers’ Compensation Board (n.d.). Glossary of workers’ compensation terms [Arising Out of and In the Course of Employment]. Retrieved from http://www.wcb.ny.gov/content/main/TheBoard/glossary.jsp
[iv] State of California, Department of Industrial Relations Division of Workers’ Compensation (2016). Physician’s guide to medical practice in the california workers’ compensation system [Fourth Edition]. Retrieved from http://www.dir.ca.gov/dwc/medicalunit/toc.pdf
[v] Beard at 97.
[vii] Beard at 103-104.
[ix] Id. at 105.
[x] Id. at 105-106, 109, 118, 130, 202-206, 209-212, 215-220, 291-312.
[xi] New York State Workers’ Compensation Board (n.d.). Glossary of Workers’ Compensation Terms [Arising Out of and In the Course of Employment]. Retrieved from http://www.wcb.ny.gov/content/main/TheBoard/glossary.jsp; Beard at Chpt. 4.
[xii] Beard, 134-155.
[xiii] Id. at 175-176.
[xiv] Id. at 155.
[xv] Id. at 156-157.
[xvi] Id. at 159-161.
[xvii] Id. at 166.
[xviii] Id. at 162.
[xix] Id. at 181.
[xx] Id. at 164, 170-171.
[xxi] Id. at 179.