Elements of a Workers’ Compensation Claim: Part 2- Module 2 of 6
Short Video: Workers Compensation: When is an Injury considered to be in the "course of employment"?
Part 2: Elements of a Workers’ Compensation Claim
Part 1 discussed the first two elements of a workers’ compensation claim – the employer-employee relationship and injury by accident. This module will discuss the third element – causation. For workers’ compensation law to apply, an on-the-job injury must be caused by the employment. This requires the employee to prove both that the injury 1) arose out of the employment, and 2) occurred within the course of the employment. Although these two terms sound similar, they are distinct, as our discussion will demonstrate.
Arising Out of the Employment
When the court determines whether the injury arose out of the employment, it looks to the origin or cause of the injury. The injury must be the result of some hazard of the employment. The employment is not a contributing, proximate cause if the injury resulted from a hazard that the worker would have been equally exposed to outside of work, or if the general public is equally exposed to the risk.
Though there must be a causal connection between the employment and the injury, this is not to say that the injury must have been foreseeable or foreseen. In fact, if the injury was so certain that it was foreseen, an employer may be able to argue that the employee therefore intentionally exposed him or herself to the danger and that the injury should not be compensable at all. Instead, if hindsight shows that the injury may have been related to the employment, that is enough to support a causal connection.
Various tests have developed to simplify the determination of whether an injury arose out of the employment. These tests include: the Increased Risk Doctrine, the Actual Risk Doctrine, and the Positional Risk Doctrine. Though most states used just one of these tests, some states use a muddled combination of two of these tests, or reject them altogether.
The Increased Risk Doctrine is the majority rule, followed in twenty-two states including California, Michigan, North Carolina, and Texas. This doctrine requires that the employee show that his employment increased the risk that he would suffer the injury. For example, an employee who falls walking to a required employer training may not be able to recover under the Increased Risk Doctrine if the employment did not expose the worker to any particular hazard or increased risk of falling. If the area where the employee fell was clean, dry and flat, there would be no increased risk of falling. On the other hand, if the employee had to walk across a slippery or uneven surface to get to the training, then the fall could be compensable.
The Actual Risk Doctrine is followed by only seven states. This doctrine requires the injured worker to show that his work actually did create the risk that caused the injury. It is not relevant whether the worker could also be exposed to that risk outside of work. However, the risk does have to be particular to the worker’s job for the injury to be compensable. For instance, a worker who is hit by a car while crossing the street from employee parking to the employment building was found to have suffered a compensable injury under the Actual Risk Doctrine. Even though a person is exposed to the hazards of crossing the street in everyday life, the fact that employee parking was located across the street from the work building actually created the risk of being hit that was particular to the job. In contrast, a worker who was stung by a bee while working did not suffer a compensable injury because there was nothing particular about the worker’s work environment that actually exposed him to the risk of being stung.
Finally, the Positional Risk Doctrine is applied in seventeen states, including Florida, Georgia, Maryland, and New York. This doctrine states that an injury arises out of the employment if it would not have happened “but for the fact that the conditions and obligations of the employment placed claimant in the position where he or she was injured.” “But for” causation is defined as “the cause without which the event could not have occurred.”
The Positional Risk Doctrine provides compensation even if the only link between the injury and the employment is that work obligations caused the employee to be in the particular place and time when the injury occurred. For example, where an employee falls while taking out the trash at work, and taking the trash out was one of the employee’s work assignments, then the injury is compensable under the Positional Risk Doctrine because the employee would not have fallen but for the fact that she had to take out the trash.
In addition to the different causation tests, jurisdictions have developed specific rules for certain types of injuries for which the “arising out of” element is particularly difficult. Depending upon the jurisdiction, these rules may address: aggravation of pre-existing conditions, acts of God or nature, unexplainable accidents, heart attacks and strokes, and medical malpractice, among others.
Aggravation of a pre-existing condition occurs either when a work-related injury aggravates a pre-existing condition, or when a pre-existing condition aggravates a subsequent, work-related injury. To recover, a claimant must do more than simply show that the co-existence or “stacking” of the two injuries is worse than one injury alone would be. Instead, the claimant must show how the two injuries are interrelated and that there is actually an aggravation, or increased severity in resulting disability due to their relationship.
Acts of God or nature are often subject to particular rules as well. These acts usually involve particular climatic conditions that are sudden or unexpected, including lightening strikes and hail. If the conditions are more common, like a general rainstorm, then the resulting injury may be compensable if the resulting injury itself is unusual or unexpected. For an injured worker to recover for acts of God or Nature, jurisdictions often apply the Increased Risk Rule, even if it is not otherwise used. The claimant must show that the employment exposed him to a greater risk than the general public, that the employment caused the injury, and that the injury was unusual or unexpected.
Unexplained accidents may be presumed compensable in some jurisdictions. “One charged with the performance of a duty and injured while performing such duty, or found injured at a place where his duty may have required him to be, is injured in the course of, and as a consequence of, the employment.” However, the presumption does not apply in the case of apparent suicide by the employee.
For an on-the-job heart attack or stroke to be compensable, the injured employee must show that the employment subjected him to extraordinary or unusual conditions, violence, physical exertion, or strain; and that the heart attack or stroke resulted from those conditions.
Generally, where the injured worker seeks medical treatment for the work-related injury, and the worker is further injured by a medical professional’s malpractice, the results of the medical malpractice are likewise compensable. They are deemed to be part of the original work-related injury.
Occurring in the Course of Employment
“In the course of” looks to whether the accident occurred in the time, place, and circumstances of the employment. As with “arising out of,” the courts often use a series of rules to determine whether certain injuries meet the “course of employment” requirement. These rules include: the going and coming rule, the personal comfort rule, the special errand rule, and the dual-purpose doctrine. Special rules also apply when the employee is furthering the employer’s interests, with workplace horseplay, in emergencies, and with recreational activities.
The going and coming rule
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, if he sustains an injury during this travel, it is not compensable. However, there are several exceptions that allow compensation. These include where:
· The employer provides the means of transportation;
· The employee earns wages for the travel time coming and going;
· The employee is still charged with some employment-related task or duty (known as the furtherance of the employer’s business exception);
· The way traveled is inherently dangerous and is either the only path available or is maintained by the employer;
· The employer requires, by implied or express agreement that the employee use the particular travel path; or
· The employee is performing a special task or errand for the employer (known as the special errand exception).
It should be noted that the going and coming rule does not apply to an employee’s travel while on the employer’s premises. Instead, the general rule as to injuries incurred on the employer’s premises is that “if the employee [is] injured while passing … to or from his work by a way over the employer’s premises …the injury is … in the course of the employment [just as if] it had happened while the employee was engaged in his work.”
The personal comfort rule
The personal comfort rule states that if an employee is injured while undertaking certain activities for personal comfort, including eating, using the restroom, drinking, or seeking warmth, shelter or medication while on the work premises, then such injuries occur within the course of employment. If however the employee is injured while undertaking such activities off of the employer’s premises, compensability will depend upon whether the employee was still generally performing some service for or furthering the purpose of the employer.
Trips and the special errand rule
As to business trips, compensability is based upon whether the employee’s activities when the injury occurred were furthering the employer’s business. Slight deviations from the employer’s business will not extinguish compensability of the injury. However, an employer will not be liable for injuries that occur if the employee’s deviation for personal reasons is substantial, referred to as a detour. Whether a deviation is substantial is a question of fact to be determined on a case-by-case basis. However, it should be noted that even where an employee detours from the employer’s business, if the employee later returns to the employer’s business and an accident occurs, then the resulting injury will still be compensable.
Similarly, injuries are compensable when incurred while an employee travels from one jobsite to another during the course of the workday and on the employer’s time. Furthermore, the special errand rule provides that if an employee was undertaking a special task or errand for the employer and is injured while doing so, that injury can be compensable, no matter the time of day, the day of the week, or the location that the injury occurs.
The dual-purpose doctrine
The dual-purpose doctrine is followed by the majority of jurisdictions and applies to determine compensability when an employee goes on a trip that has both a personal and a business purpose. The trip is considered personal (and therefore, resulting injuries are not compensable) if the trip would have been made whether the business purpose existed or not, but would not have been made had there been no personal purpose. The trip is considered business (and therefore, resulting injuries are compensable) if the trip would have been made whether the personal purpose existed or not, but would not have been made had there been no business purpose.
Furthering the employer’s interests
Generally speaking, if an employee is injured while acting in good faith to benefit the employer’s business interests, such injury may be compensable, even if the act does not specifically further the employee’s own assigned work purpose and even if the act exceeds the employee’s authority. The classic example is where a grocery store employee chases down a criminal who snatched a patron’s purse. However, the employer’s liability can be cut off if the employer set clear limits on appropriate employee behavior in this regard, and the employee intentionally exceeded those limitations nonetheless (this behavior would not be in good faith). Furthermore, compensability does not extend to acts by the employee that serve the personal benefit (as opposed to employment-related, business benefit) of a co-employee, the employer, or the employee.
Most jurisdictions apply the rule that if an employee is a nonparticipating, innocent victim of horseplay at the workplace, then any injuries sustained by the innocent employee are compensable. Though it may be unlikely that the instigator or willing participant in workplace horseplay would be able to recover for injuries thus resulting, compensability may depend upon what type of work environment was maintained or facilitated by the employer.
According to the Sudden Emergencies Doctrine, injuries are compensable if incurred by an employee when he goes outside his regular work duties to rescue himself, a co-employee, the employer, or the employer’s property.
As to injuries incurred during workplace-organized recreational activities, compensability depends upon how much control the employer had over the activity, whether the activity was mandatory, and what benefit, if any the employer obtains from the activity (beyond basic employee morale). Compensation is more likely if the employer exercises control over the activity, if it is mandatory, and if the employer obtains a direct and substantial benefit from it.
As always, check the law in your jurisdiction to determine whether these basic principles dictate your court’s determination of causation in workers’ compensation cases.
 Beard, et. al. (2012). The law of workers’ compensation insurance in South Carolina sixth edition, p. 95. Columbia, S.C.: South Carolina Bar Continuing Legal Education; www.wcb.ny.gov/content/main/TheBoard/glossary.jsp
 NC Workers’ Comp Law, Sect. 97-2 Case Notes, p. 71.
 Beard at 97.
 Haughton, Paige (2017). Workers’ Compensation: The Hazard of Adopting the Increased-Risk Doctrine When Interpreting “Arising out of”, Appendix. Available at https://www.americanbar.org/content/dam/aba/publications/aba_journal_of_labor_employment_law/v32n2/haughton.authcheckdam.pdf
 Haughton, Appendix.
 Id. At 284, Appendix.
 Id. At 284-285 citing Branco v. Leviton Manufacturing Co., 518 A.2d 621 (R.I. 1986) and Dawson v. A&H Manufacturing Co., 463 A.2d 519 (R.I. 1983).
 Id. At Appendix.
 Id. At 283 quoting Larson’s Workers’ Compensation Law Sect. 3.05 (2016).
 Black’s, Definition: but-for cause, p. 212.
 Haughton at 283.
 Beard at 103-111, 116-119, 130, 215-216.
 Id. at 103-104.
 Id. at 106.
 Id. At 108-109, quoting Owens v. Ocean Forest Club, Inc., 196 S.C. 97, 102, 12 S.E.2d 839, 841 (1941).
 Id. At 111.
 Id. At 116.
 Id. At 118.
 www.wcb.ny.gov/content/main/TheBoard/glossary.jsp; Beard at 134; N.C. Workers’ Comp. Law Annotated, Sect. 97-2, Case Notes, VI. Arising Out of and in the Course of Employment. C. In the Course of., p. 65-67, 75.
 Beard at 134-150.
 Id. At 151, quoting Williams, 245 S.C. at 381.
 Id. At 155, 175-178.
 Id. At 156-158.
 Id. At 159.
 Id. At 162.
 Id. at 164-171.
 Id. At 179-181.
 Id. At 181.
 Id. At 184.