Is That Injury Covered by Workers’ Comp?
I got an interesting question yesterday that I was unable to answer. Hopefully, you’re still reading; I’ll go on. The IIABNY member who called me has a client who fell and suffered an injury while on her lunch break. She works in one space in a large complex. On the day of the accident, she “punched out” for lunch and was walking elsewhere in the complex when she tripped on an uneven walking surface. When she presented the claim for her injuries, the building owner denied payment. Because she was injured during the work day, the owner argued that her employer’s Workers’ Compensation coverage should apply. This raised the question of whether an employee is covered by Workers’ Comp while on her lunch break.
The answer, as with so much in life, is, “It depends”. Specifically, it depends on the circumstances surrounding the injury and what was customary for the job. A good illustration is a case decided by the New York Supreme Court’s Appellate Division, Third Department, last May. An electrician reported to work at 7:55 A.M., discussed the week’s work plans with his partner, loaded his truck with materials and supplies, and headed for a job site. On the way, he stopped at a drive-through restaurant for coffee and a muffin. When he reached into his back pocket for his wallet, he felt a pop in his back; he eventually underwent surgery to repair herniated disks. Unable to work for nine months, he submitted a claim for Workers’ Comp benefits. The insurer disputed the claim, and the case went to a Workers’ Compensation Law judge, who sided with the claimant. The insurer appealed and the Workers’ Compensation Board reversed the judge’s decision, finding that the stop for coffee deviated from the claimant’s employment and the injury therefore did not arise out of that employment. The claimant then appealed to the Third Department.
The court cited a 1999 decision that stated, “Activities which are purely personal pursuits are not within the scope of employment and are not compensable under the Workers’ Compensation Law, with the test being whether the activities are both reasonable and sufficiently work related under the circumstances” [Emphasis added]. It also cited earlier decisions to the effect that momentary deviations from the work routine for a customary and accepted purpose, such as coffee breaks, do not render a claimant ineligible for benefits. Noting that the claimant’s undisputed testimony that his stop at the drive-through for coffee was a brief one on his direct route to the job site, and that he routinely did this because his office lacked a coffee maker, the court held that the stop was a “momentary and customary break which did not interrupt his employment and which can only be classified as reasonable and work-related under the circumstances…” It reinstated the claimant’s benefits.
What does that mean for the IIABNY member’s client? Without more details about the accident, it’s impossible to say. Did the accident happen in an area where she walks every day? Did she have to walk through that area to go to lunch? Was this area near her office, or was she in a location on the opposite side of the complex? Ultimately, the Workers’ Compensation Board may have to weigh the facts and decide. There is no cut-and-dried answer. And that’s the lesson for employers, employees, and insurance agents alike: Don’t assume that an injury is not compensable just because it appears that it wasn’t work-related. Report the incident to the Workers’ Compensation insurer and let the investigation proceed.
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