One of the coverages that I provide for my clients in Missouri and Illinois is workers compensation. Recently, I have become aware of something called the "positional risk doctrine" and I am not exactly sure what it means. Would you enlighten me on the subject and let me know if it is something that I need to know to make sure that my clients are well served?

Missouri Subscriber

The positional risk doctrine is a legal theory relating to workers compensation; it puts forth the idea that an injury to an employee may be said to arise out of his employment if the injury would not have occurred but for the fact that the conditions or obligations of the employment placed the employee in the position where he was injured by a neutral force (a force neither personal to the employee nor associated distinctly with the employment). This doctrine affects workers compensation by allowing compensation benefits in a situation where they might otherwise be denied.

A common example of the use of the positional risk doctrine is when a vehicle crashes through the building where the employee is working and injures the worker. Some would argue that the injured employee is not entitled to workers compensation in this case because the injury did not arise out of the employment, i.e., that there is no causal connection between the employment and the injury. In those jurisdictions that support the positional risk doctrine, it is held that the employee was injured only because he was at work, in a "position" where he had to be because of his employment, and so workers compensation benefits should be paid. Positional risk declares that mere presence is enough if the employee would not have been injured otherwise.

Jurisdictions that do not recognize the positional risk doctrine emphasize the point that the mere presence at the work place is not by itself enough to certify that an injury arose out of and in the course of employment.

For your purposes, Missouri does not at this time recognize the positional risk doctrine and neither does Illinois . If the courts of either state should adopt the theory as applicable to the workers compensation statutes, your clients are covered, of course, since the workers compensation policy covers the employer's obligation for the benefits required by the workers compensation laws. Any such expansion of coverage would, of course, affect the cost of workers compensation insurance and might affect the viability of the system; this is a matter of great concern for you and your clients.

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