Factors to Consider

Questionable Activities

Conclusion

Causal Connection

The court, in Bralley v. Daugherty, 401 N.E. 2d 448 (Ohio 1980), stated, "The test of the right to participate in the workers compensation fund is…whether a causal connection existed between an employee's injury and his employment either through the activities, the conditions, or the environment of the employment," making the point that for workers compensation payments to start, an employee must be injured as a result of his employment.

It is not enough that an employee is merely present at work to suffer a compensable injury; the employment must cause the injury. Some jurisdictions may require that the worker show the injury was proximately caused by the employment, while other states may require that a worker show there was a causal connection between the injury and some condition, activity, environment, or requirement of the employment.

The following cases offer examples of the judicial reliance on the causal connection: Olympic Associates. v. Kimmel, 590 So.2d 1088 (Fla. App. 1 Dist. 1991)—benefits denied because there was no evidence of a causal connection between employment and injury; Matter of Friedman v. NBC, Inc., 178 A.D.2d 774 (N.Y.A.D. 3 Dept. 1991)—benefits awarded because death of employee arose out of employment and was causally related; Smith v. Cornell University, 77 A.D.3d 1007 (N.Y.A.D. 3 Dept. 2010)—a worker's suicide was causally connected to his work-related injuries.

A growing opinion in this country supports what is known as the positional risk doctrine, under which the test of recovery for workers compensation is not a causal relationship between the nature of employment of the injured person and the accident. Rather, the positional risk doctrine provides that mere presence at the workplace is enough if the injury would not have occurred but for the fact the employment placed the employee at that location at that particular time. However, an overwhelming majority of states still require the causal connection.

 Factors to Consider

If a causal connection between the injury and the employment is disputed, such disputes are decided on a case-by-case basis with the court taking several factors into consideration. 

Foremost among these factors is the claimant's medical evidence. If an injured worker is making a workers compensation claim, he must show either that the connection between the injury and the employment is based on reasonable medical probability, or that it is more probable than not that the work contributed in a material fashion to the precipitation, aggravation, or acceleration of the injury. In other words, the employee must have his doctor report the opinion that the injury did (or most probably did) occur as a result of the employment.

Courts also consider whether the activity was undertaken at the employer's request or order. The employer-employee relationship is determined on the "right to control" idea. The employer tells the employee what to do and how and when to do it. If the employee is injured in the process of complying with the employer's instructions, the employer cannot effectively deny that the injury was connected to work.

Additional factors considered are whether the employer either directly or indirectly compelled the employee's attendance at the place of injury and whether the employer benefited in some way by the employee's activity during which the employee suffered his or her injury. If a workers compensation board or a court were to find that an employer did compel attendance or did benefit from the activity, the injury suffered by the employee will be declared work-related and the causal connection established.

 Questionable Activities

There are some activities engaged in by employees that bring into question whether such activities are related to employment so that injuries suffered then are in the course of employment. Examples are recreational activities, coming and going, horseplay and fights, and alcohol or drug consumption.

Many employers sponsor picnics or sporting events and some employees can get hurt while participating in these events. If such activities are paid for and supervised by the employer for the purpose of generating or improving the employer-employee relationship, an injury sustained by an employee will often be deemed to have occurred in the course of employment.

For instance, in Grather v. Gables Inn, Ltd., 751 A.2d 762 (Vt. 2000), the court held that recreational or social activities are within the course of employment, for workers compensation purposes, when they occur on the premises during lunch or a recreation period as a regular incident of employment; employer, by expressly or impliedly requiring participation, or by making the activity part of the services of employee, brings the activity within the orbit of employment; or the employer derives a substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

Some jurisdictions require in cases where an employer merely sponsors or encourages recreational and social activities by employees, that the employee establish that the activity is a regular incident of employment and provides some benefit to the employer beyond the improvement in employee health and morale in order to receive compensation. See Lozano v. Frank DeLuca Const., 842 A.2d 156 (N.J. 2004). And although an employee should not be held to have left the service of his employer while participating at a recreational or social event that is in the course of employment, when an employee leaves the event and goes upon another site and engages in a dangerous activity, at that point the employee has deviated from the social event and is no longer acting in the course of his employment. See Fidelity & Cas. Co. of New York v. Musick, 562 S.W.2d 38 (Tex. Civ. App. Tyler 1978).

In general, injuries sustained by an employee while coming to and going from work are not considered injuries arising out of employment. See Sjostrom v. Sproule, 210 N.E. 2d 209 (Ill. 1965); Watson v. Nassau Inn, 376 A.2d 1215 (N.J. 1977); Philpott v. State Indus Acc. Commission, 379 P.2d 1010 (Or. 1963). This "coming-and-going" rule is, however, subject to many exceptions. Such exceptions usually apply when the employer has the employee doing some work-related activity during the travel.

For instance, in Olsten Kimberly Quality Care v. Pettey 944 S.W.2d 524 (Ark. 1997), a nurse's assistant who cared for patients in their homes sought workers compensation benefits for injuries she suffered en route from her office to the home of her first patient of the day. The Arkansas Supreme Court held that the claimant was performing "employment services" and acting within the course of her employment when her injuries were sustained, thus entitling her to workers compensation.

In Ruckman v. Cubby Drilling, Inc., 689 N.E. 2d 917 (Ohio 1998), the Supreme Court of Ohio also found that an exception to the coming-and-going rule applied in a case where employees were injured in traffic accidents during travel from their homes to remote drilling sites. The court considered that the employees had been engaged in the promotion and furtherance of their employer's rigging business while coming to and going from drilling sites, that the nature of the rigging business required that drilling be done on a customer's premises, and that the employees set up on a customer's premises, drilled a well and, after completion, disassembled the derrick for transport to next job site. The court thus determined that the injuries did, in fact, occur in the course of their employment and that the employees were therefore entitled to workers compensation.

Other situations where employees will usually be entitled to workers compensation are those in which the employer has control over the site where the injury occurred, such as a company parking lot. MGM Mirage v. Cotton, 116 P.3d 56 (Nev., 2005) involved an employee who tripped over the curb and injured her ankle while on the employer's premises as she walked from the employer's parking lot to the employer's sidewalk entrance about ten minutes before she was scheduled to work. The employee showed that the injury occurred in the course of employment and arose out of employment, and the court ruled she was entitled to workers compensation benefits.

In another decision, Cochran Elec. Co. v. Mahoney, 121 P.3d 747 (Wash. App. Div. 1 2005), the Washington Court of Appeals held that exceptions to the coming-and-going rule applied such that an employee was in the course of employment when he was fatally injured in an accident on his bicycle returning home from dropping off his employer-provided van at a garage for servicing. In ruling to award workers compensation benefits to the employee, the Cochran court explained that even though the employee was not attired in the employer's required dress or scheduled to work that day, he was acting at the direction of his employer and in furtherance of his employer's business and that he would not have taken the bicycle ride in absence of the errand for the employer.

Whether an injury sustained by an employee during horseplay or fighting is considered in the course of employment depends on the factual circumstances. If an employee is on the job and gets hurt due to the horseplay or fighting of another person, that injury is typically compensable. For example, in State v. Espinoza, 924 P.2d 979 (Wash. 1996), an employee was injured when horseplay with a coworker escalated and the coworker punched the employee. The court determined that the employee was entitled to workers compensation because she was filling a customer order when the injury occurred, and the encounter with the coworker was not a frolic of her own but a condition of her employment.

On the other hand, if the employee perpetrating the horseplay gets hurt, typically that will not be considered work-related by most courts. For instance, in Carrick v. Riser Foods, Inc., 685 N.E.2d 1261 (Ohio App. 8 Dist. 1996), the Ohio Court of Appeals ruled that employees are not entitled to compensation where their injuries are sustained during horseplay, quarrels, or fights that are instigated by the injured employee.

However, the fact that the workers compensation claimant is the initial aggressor in the assaultive behavior does not always, in itself, render the injury noncompensable. Courts in some jurisdictions find the more crucial issue to be whether the employee departed from the scope of his employment by engaging in the horseplay. In Lori's Family Dining, Inc. v. Industrial Claim Appeals Office of State of Colo., 907 P.2d. 715 (Colo. App. 1995), the court determined that the employee's injuries arose out of his employment for workers compensation purposes, where his deviation in engaging in horseplay that resulted in his injury was commingled with his duty to empty trash, horseplay had become a regular part of the employment and it was sufficiently related to circumstances under which he normally performed his duties.

Similarly, in Clodgo v. Rentavision, Inc., 701 A.2d 1044 (Vt. 1997), the court explained that whether a horseplay participant is entitled to recover workers compensation benefits usually hinges on whether the participant's injury occurred in the course of employment, which, in turn, depends on the extent of the participant's deviation from work duties.

When it comes to fighting, the instigator of the fight is not typically entitled to workers compensation, but the injured victim can be entitled based on the circumstances. If the fight is personal, for example a political disagreement, the injury cannot be said to occur in the course of employment and no compensation should be paid to either party. If the fight is business-related, for example an argument over possession of a tool, the victim's injury is considered to be in the course of employment and should be covered under the workers compensation system.

An example of this reasoning can be seen in the Depuy, Inc. v. Farmer, 847 N.E.2d 160 (Ind. 2006). In Depuy, the court held that injuries an employee sustained in a scuffle with a coworker at work arose out of his employment for workers compensation purposes. The employee had started to clock out at the end of his shift and had brushed his time card against his coworker's side. In response, the coworker became enraged and injured the employee. The court determined that the employee's injuries had been incurred while he was performing services for the employer. and the coworker's loss of control and unprovoked attack did not change that.

In Dependable Messenger, Inc. v. Industrial Com'n of Arizona, 858 P.2d 661 (Ariz. App. Div. 1 1993), the employee was injured when he assaulted a nonemployee. The court held that injuries incurred by the employee in the parking lot of the employer's building, following a complaint that the nonemployee was parking in the employee's space, were not sustained in the course of employment and consequently were not covered by workers compensation. The court reasoned that no goals of the employer were advanced, as the employee had no right to a particular parking space and the employer had a policy against fighting.

Conversely, an employee who is assaulted by a nonemployee may be entitled to workers compensation benefits, depending on the situation. For instance, in Beck v. State, 779 S.W.2d 367 (Tenn. 1989), an employee was awarded benefits for mental disability that incurred when she was assaulted by a stranger at her place of employment. The Tennessee Supreme Court determined that the incident in which the employee was accosted arose out of the employee's employment, and thus, she suffered compensable accidental injury. In addition, the employee's indiscriminate exposure to the general public was one of the conditions under which her work was required to be performed, and acts of persons on those premises could not be considered hazards of employment.

Finally, standing alone, alcohol or drug consumption is not typically sufficient to defeat recovery of workers compensation benefits if the user is injured at work. It is often the case that an employee injured while intoxicated at work is still able to collect workers compensation benefits. In some jurisdictions, if an employer permits the use of alcohol at a company event, that employer may be estopped from raising intoxication as a defense.

Standards for when intoxication precludes the receipt of benefits vary state-to-state, with intoxication delineated by statute. Nearly all fifty states and the District of Columbia have enacted legislation specifically addressing the effect of substance abuse on the right to receive workers compensation benefits. The majority of those laws provide that workers compensation benefits are not payable if the employee's injury is a result of substance abuse or intoxication. A handful of states require that the intoxication must be the sole cause of the injury before benefits may be denied, while some other jurisdictions have enacted legislation that makes reference to injuries "occasioned by" intoxication or those in which intoxication is the "proximate cause" or "primary cause" of the injury or death.

Four states have adopted statutory approaches that provide for the reduction of benefits where the injury results from intoxication. Kentucky, Colorado, Missouri, and Wisconsin permit the reduction of benefits where the injury was sustained in conjunction with the use of alcohol.

In some states, mere intoxication at the time of the accident can prevent the worker from receiving benefits. A few states have laws that explicitly state that intoxication at the time of the incident bars an employee from receiving benefits. In Texas, for example, where the defense requires only a showing that the employee was intoxicated when the injury occurred, courts have ruled that any discussion of a causal connection between the intoxication and the accident is irrelevant.

Depending on the particulars of the case, intoxication at work can sometimes be considered willful misconduct. Some of the states that do not have laws to specifically address the issue of intoxication have laws that prevent employees from receiving workers compensation benefits if the employee's willful misconduct contributes to his injury. Typically, for intoxication to be considered willful misconduct, the employer must show that the employee intended to become intoxicated.

Because intoxication is an affirmative defense, the burden of proof of intoxication and the required degree of causation rests with the employer, and the employer's burden is difficult in most cases. As stated by the court in District 141, Intern. Ass'n. of Machinists & Aerospace Workers v. Industrial Commission, 404 N.E.2d 787 (Ill. 1980), for workers compensation to be denied on the basis that the employee was intoxicated at time of injury, the employee must be so intoxicated, as shown by evidence, that the trial court can say, as matter of law, that the injury arose out of his drunken condition and not out of his employment.

And in jurisdictions such as New York, where the strict nature of the state's statute requires the intoxication to be the sole cause of the resulting injury, there are numerous cases affirming compensation benefits. An early example is found in Matter of Van De Water v. Emmadine Farms, Inc., 18 A.D.2d 1119 (N.Y.A.D. 1963), where a milk driver fell out of his truck, fractured his skull, and died. The autopsy indicated .21 percent alcohol in the blood stream. Because the driver had to stand near the open door while operating the truck, the additional employment risk factors supported the finding that his death was not due solely to intoxication, and compensation benefits were awarded.

Nevertheless, in most cases, if the employer can show that the worker was rendered incapable of doing his job due to the alcohol or drug intake and was injured while in such a condition, that injury will not be shown to have arisen out of the employment, and workers compensation benefits will be denied.

For instance, Phelps v. Positive Action Tool Co., 497 N.E.2d 969 (Ohio 1986) involved an employee who had a blood alcohol level of .21 percent when he was injured while driving his employer's vehicle. In ruling that the employee was not in the course of his employment and therefore not entitled to workers compensation benefits, the court stated, "An employee who drinks intoxicating liquor to such an extent that he can no longer engage in his employment abandons his job and, when injured in that condition, his injury does not arise out of his employment."

Similarly, in Matter of Purcell v. American SIP Corp., 248 A.D.2d 844 (N.Y.A.D. 1998), the court denied benefits to an employee killed in a car accident while driving to a hotel from a sales meeting. Evidence was presented demonstrating that the employee's erratic driving had been reported immediately prior to the collision, that he had a blood alcohol level of .23 percent, and that he had two bottles of alcohol in his car. The court affirmed the denial of benefits, holding that substantial evidence supported the finding that the employee's intoxication was the sole cause of the accident.

 Conclusion

In the workers compensation system, there is no guarantee that an injured employee will receive benefits just because that person is an employee and gets hurt. However, modern courts are typically reluctant to forfeit an employee's right to receive workers compensation benefits, and they will construe state statutes in favor of the employee. As is evident by this article's discussion on the "course of employment" condition, there are usually many factors that must be considered before a workers compensation claim will be denied, and benefit determinations varyfrom state to state.

Original publication: April 3, 2014

Reviewed and updated: August 12, 2024