Injuries Sustained While Retrieving Personal Items After-Hours Held Non-Compensable
“Injuries taking place when a worker has reentered the job site for a personal motive after his or her workday has ended have been held to be outside the scope of employment.”
The Court of Appeal recently denied applicant’s petition for a writ of review in the matter of M.C. v. University of Southern California, wherein the WCAB held that applicant’s injuries sustained in the form of an assault by a co-worker when she returned to work several hours after the end of her shift to retrieve some personal effects was non-compensable.
The reasoning relied heavily on an analysis of the meaning of Arising out of Employment and in the Course of Employment, which we of the workers’ compensation community refer to as “AOE/COE.” The analysis has two prongs – whether the injury occurred when and where employment takes place, and also during the work being performed.
In this case, the majority of the panel held that, even though the injury occurred where work usually takes place, it did no occur when work usually takes place, and not while the applicant was performing any work for the employer.
By contrast, the dissent would have found the injury compensable, noting that the employee was provided with an access card for after-hours entry, and a place to keep her personal items. She took advantage of both, as provided by her employer, and it placed her in the position where she sustained the injury in question.
What do you think, dear readers – should the employer/insurer be on the hook for all injuries sustained on its premises? Should an amusement park employee have a compensable claim for injuries sustained while enjoying the rides at the amusement park? What about a bar tender having a drink in the bar where he works?
Given the sensitive nature of the case, your humble blogger has not placed the full name of the applicant in this blog post. For a copy of the panel decision, please shoot me an e-mail.
The employer might, of course, be liable in tort. Which might be more expensive than compensation – especially in terms of the deductible. Whether this would work in this particular case is one thing. Whether it would never work is another. And once a precedent is set, it is set.
Think carefully before you act, since mistakes cannot afterwards be rectified!
Hello Greg.
This seems to be a work comp permutation of the zone of danger that confronted Mrs Palsgraf, isn’t it? Was “M.C.” placed in greater peril because of her employment than a non-employee in the same time and place would have faced? On the brief facts presented, it appears “M.C.” had, but wasn’t required to use, after hours access. Tough call, but drawing a fluid line between compensable AOE/COE events and really, really bad luck is required. It seems the Court of Appeal judged the instant case to be in the latter category. If “M.C.” went back to get a work file instead of her sweater, there probably would have been a different result.
Hi Laurel.
I think you’re 100% right. Wrong place wrong time does not a compensable injury make. There’s a body of case law on the issue of injuries sustained during store robberies, with the general rule being that if it is a personal vendetta against the employee, then it’s not compensable, but if it is just a store robbery, it is. The history detailed in the case which I did not mention in the blog post (that the injured worker had complained about harassment from the perpetrator) doesn’t help though – is it strictly personal? Or does the job-caused proximity that facilitated the prior harassment make it industrial?
A sad case either way.