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Client Alert from the Labor and Employment Group - June 2010

Employees Injured Off-Site and On Breaks May Still Be Entitled To Workers' Compensation Benefits

by Michael Schmeltzer

Courts continue to toil with the issue of when an injured worker should be entitled to workers' compensation benefits for injuries occurring off the employer's premises and arguably occurring off duty. The Ninth District Court of Appeals recently considered this question in Miller v. Bureau of Workers' Compensation (March 31, 2010), 2010-Ohio-1347, and it found that the employee, who was injured on a coffee break at a restaurant away from his employer's premises, was nevertheless entitled to participate in the Workers' Compensation Fund.

In Miller, the injured employee worked as a "housing rehab specialist" for the City of Akron, and his duties included traveling to and inspecting individuals' homes who were seeking housing assistance. The employee estimated that he spent approximately forty percent of his time conducting these inspections. However, he began every workday at his employer's office and performed most of his duties there. The employer permitted him to take two fifteen-minute breaks each day.

On the day of his injury, the employee left his office to perform a home inspection. En route, he decided to take one of his fifteen-minute breaks and stopped at a restaurant for a cup of coffee. After taking his coffee break, the employee left the restaurant to return to his car and slipped on the icy parking lot and injured his back. The Industrial Commission denied the claim because the employee's injuries occurred during a break off the employer's premises. The trial court agreed and granted the employer's motion for summary judgment. The employee appealed to the Ninth District and argued that his injuries were, in fact, compensable because he was still on duty at the time of the accident - even though he was off-site and on a coffee break.

To be covered by the Workers' Compensation Fund, the employee's injury must have occurred "in the course of and arising out of" his employment. Generally, an employee with a fixed place of employment, who is injured away from the employer's premises, but traveling to and from the premises, is not entitled to receive workers' compensation benefits because the requisite causal connection between the injury and the employment does not exist. This is known as the "coming-and-going" rule. However, there are exceptions to this general rule.

The Ninth District considered whether one of these exceptions were available to the injured employee. The court agreed that the coming-and-going rule may bar recovery for a similar injury occurring during an unpaid lunch break, but it held that the rule might not bar recovery for one occurring during a paid rest break, which was the situation in this case. The court explained:

However, the same is not true of coffee breaks and other breaks taken for the employee's personal comfort, even when the employee is injured while off the employer's work premises. . . . Unlike the unpaid lunch break, it is generally accepted that although an employee is not technically performing his work duties during a break, taking a break for personal comfort is deemed to be incidental to the employment and therefore in the course of and arising out of the employment. . . . Thus, in examining whether an off-premises break arises out of the employment, the issue cannot be resolved solely through the mere determination of the fixed situs status of the employment and automatic application of the coming and going rule. The courts must inquire into the specific circumstances of the injury to determine work-connectedness.

The Court suggested that when considering the "specific circumstances" of the injury and determining "work-connectedness," relevant factors might include: "the time of the break, whether the break is a right fixed by the employment contract, whether it is a paid break, whether there are any restrictions as to where the employee can take the break, and whether the employee's activity during the break constituted a substantial personal deviation."

The Ninth District ultimately found that, under the circumstances of this case, the employee was entitled to receive workers' compensation benefits. Among the reasons supporting this conclusion were that the employee was required to leave his office building to perform his work duties and was permitted to take paid breaks at a time and location of his choosing. The court reasoned that the "risk of his injury was a risk inherently related to the nature of his employment and he would not have sustained the injury had he not been required to leave the office in order to satisfy his work duties." It explained that the employer had control over the time and place where he could take his break, but the employer "elected not to place restrictions upon [him.]" Therefore, according to the court, the employee was at a place where he could reasonably be expected to be at the time of his injury, and his injury resulted from permissible employment activities. He had not deviated from his employment to engage in some activity of a purely personal nature. Moreover, the court found that the employer benefited from the rest break because it was for the employee's personal comfort and renewed and re-energized him for work.

This case serves as a reminder to employers that they should be careful when requiring employees to perform off-site work duties or permitting employees to take unregulated breaks. It is advisable to exercise control over the manner and means in which employees perform off-site work and the circumstance under which they are permitted to take breaks.

The information in this Client Alert is a summary of often complex legal issues and may not cover all of the "fine points" of a specific situation or court jurisdiction. Accordingly, it is not intended to be legal advice, which should always be obtained in consultation with an attorney. The lawyers in Walter & Haverfield's Labor and Employment Law Group will be pleased to assist with any questions about this new law.