You’ve got a beautiful office in a commercially zoned area. It’s located on the corner of a block atop a slight hill. You have your own parking lot at the side of the building. To prevent others from parking in it overnight or on weekends, you have a small roll-away gate at the top of the short driveway leading to the parking lot entrance. Your office policy is that the employee who arrives first unlocks and opens the gate, and the last one to leave closes the gate and locks it (all of your employees who drive have a key to the gate). It’s winter, it’s cold, it’s raining, it’s early morning, and it’s still somewhat dark outside. Shirley Early gets to work first. She pulls up to the top of the driveway and dutifully gets out of her car to unlock and open the gate. While she is fiddling with the lock, her car starts to roll backward. She instinctively rushes to try to stop the car and slips on the wet pavement, and her foot gets run over by her car. It ultimately must be amputated. She files a Worker’s Compensation claim. Was she working at the time? We all feel for her, but she actually hadn’t started working yet. Does she have a claim?
Stokes v Coweta County Bd. of Educ., 722 S.E.2d 118 (2012) , provides some enlightenment. In Stokes, an administrative law judge granted “Shirley’s” claim. The state worker’s board reversed that decision. “Shirley” appealed. The claim was ultimately reinstated in “Shirley’s” favor for the following reasons. Our facts, as noted in the court’s decision, as they relate to our Shirley, are virtually identical to those in Stokes. The court first noted that to be a compensable claim, the injury must “arise out of” and be “in the course of” the claimant’s employment. Regarding the “arising out of” part, the court stated that this means that there must be a direct or causal connection between the working conditions and the injury suffered. In other words, the causative danger must directly relate to the character of the employment. To put it another way, the event leading to the claim must result from a risk that is related to activities inherent in the scope of the employment. Citing 2 other cases, the court stated that a viable injury is compensable “if after the event it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was performed and the resulting injury.” In addition, a compensable injury “may arise out of the employment, even if the employee is injured while doing something that is beyond the scope of the employee’s specific duties, where the employee has some discretionary authority and the employer has not instructed the employee that the act is forbidden.” (Cits. Omit.)
The phrase “within the course of employment” has to do with the time, the place, and the circumstances surrounding the accident. This occurs when “it occurs within the period of employment at a place where the employee may reasonably be in the performance of [her] duties and while [she] is fulfilling those duties or engaged in something incidental thereto.” (Cit. Omit.)
The court then elaborated on the deviation rule. Deviations allow the chain of causation to be broken, making the employer no longer liable to compensate the injured employee. The court noted that “where an employee breaks the continuity of [her] employment for purposes of [her] own and is injured before [she] brings [herself] back into the line of employment, [her] injury does not arise out of or in the course of [her] employment.” (Cit. Omit.) Examples of this might be leaving the workplace to go out for a meal, running a personal errand during lunch break, going to a personally scheduled entertainment event while traveling for business, and so on. In other words, if the injury occurs when the employee is “off duty” and is free to do as she pleases, as long as no job duties are being performed or related to the employee’s activities, that injury is probably not compensable under a Workman’s Compensation claim.
Turning back to Stokes, the worker’s board determined that the claimant was not working at the time of the accident because her job duties included “opening the gate, unlocking the building, emptying trash cans, sweeping, and so on, but did not include going after a moving vehicle.” The board decided that after she “turned away from the gate, after putting her key in the lock, and pursued her car, …she undertook a personal mission, in pursuit of [her] personal property, not connected to her duties with the employer.” In addition, the board also opined that the claimant “did not pursue the car in an attempt to prevent injury to herself or another employee or damage to the employer’s property.” The appellate court, in reversing the board’s decision, stated that the board’s finding was based on an erroneous interpretation of what constituted a deviation of employment by noting the following.
It is undisputed that, at the instant Stokes’ car began to roll, she was on duty (not on break); she was physically located precisely where her job duties required her to be at that time, that is, at the driveway gate; and, she was unlocking the gate, a task required by her job duties and of benefit to the employer. Indeed, but for the necessity that she stop her car on the sloped driveway and exit the car to open the gate, the accident would not have occurred. This is not a case where an employee consciously decided to take advantage of a break in her work day, when she was free to do as she pleased, to run a personal errand. Rather, Stokes responded instinctively and instantaneously to an unexpected and dangerous situation that arose directly out of the performance of her job duties. Although it appears that, as luck would have it, no one would have been hurt, and no school property would have been damaged, if Stokes had had the presence of mind to simply stand and let the car roll away, it contravenes the humanitarian purpose of the Workers’ Compensation Act and distorts the definition of a deviation from employment to say that her attempt to stop the rolling car was a purely personal mission.
In a number of the many footnotes in this case, the court cited the following definitions and examples to support its decision. All citations have been omitted. Regarding the concept of deviation from employment, the court noted the following.
When an employee steps aside from his employer’s business to do some act of his own, not connected with his employer’s business, the relationship of employer and employee, or master and servant, is, as to that act, completely suspended, and an accident occurring at that time, resulting in injury to the employee, does not arise out of the employment within the meaning of the Workers’ Compensation Act.
An employee’s injury from falling at a restaurant did not arise out of her employment because it occurred during a scheduled lunch break when the employee was free to use her time in any manner she wished and while the employer exercised no control over her activities.
A watchman deviated from his employment when he left his employer’s premises and walked to a fruit stand to drink coffee.
An operations manager deviated from his employment when he was driving home for lunch in his personal car. The employee testified that he was not on an errand for his employer at the time and that he would take up his employment duties again after lunch.
An employee deviated from her employment when she drove to an auto repair shop to pick up a fellow employee, who was the son of the company president and who had left his personal car there for repairs.
Where an employee was free to go where and do what she pleased during her lunch hour, she deviated from her employment when, at the beginning of her lunch hour, she departed her work station on her way to a hairdresser.
However, as examples of nondeviations, the court noted the following.
An unscheduled break to use the restroom out of necessity is not time that is released to an employee “as free time during which he may do as he will,” and, therefore, “it cannot be construed as an altogether personal pursuit” that does not arise out of and in the course of his employment.
An employee does not deviate from “his employment if, when confronted with a sudden emergency, he steps beyond his regularly designated duties in an attempt to save himself from injury, to rescue another employee from danger, or to save his employer’s property.
A 24-hour on-call field nurse did not deviate from her employment when, after completing her patient visits and while still on call, she picked up a pizza for her family’s dinner and went home, with the intention of completing time-sensitive paperwork for her employer there.
An employee did not deviate from his employment when he attempted to repair a drill press which had been used by a fellow employee but which the claimant was not authorized to use. The repair would have benefitted the employer, and “the gap between the claimant’s regular work and the repair of the drill press was narrow enough to conclude that the attempted repair was an incident of the claimant’s regular work.
A tow truck operator did not deviate from his employment when, after delivering a disabled vehicle to its appointed place and while en route back to the garage, he stopped at the place where he had picked up the car to see whether a ring he had lost during the service call was lying there.
Okay, so what’s the real deal? The way I see it is that it comes down to whether it can be construed that the employee was acting for the benefit of the employer and was within the scope of her employment, in any manner, at the time of the incident. If on the other hand, the employee was engaging in an “independent frolic” at the time of the accident, the employer will be on terra firma regarding responsibility for compensation. How might this apply in orthodontics?
At your morning huddle, you realize that Gotta Gettemoff is coming in for removal of her appliances and an assistant, Gloria Gofer, who is in charge of the appliance log, tells you that the case is not back from the laboratory yet. She calls the lab, they say they had a problem, the case is done but they couldn’t deliver it for the requested time and date. The lab is a 15- to 20-minute drive from the office. You ask Gloria to run over to pick up the retainer for this afternoon’s appointment. She does as requested, but during the errand swerves her car to avoid running over a little old lady pushing a baby carriage. She suffers nonlife threatening injuries in the resulting accident. Is she engaged in work-related activities? Of course she was. On the other hand, unbeknownst to you, she meets her boyfriend at wherever for whatever during her pick-up run. She suffers a pulled something during her whatever. Was she engaged in work-related activities at the time of the injury? I doubt it. On the other hand, she stops to pick up lunch for you and slips on the floor at the deli, injuring herself. Work-related? Probably. However, on the other hand (I know I have lots of hands), she goes out for a bite to eat before actually getting into the car to make the lab run and suffers the same slip and fall accident. How about now: work-related? A much closer call.
You take your staff to an American Association of Orthodontists meeting or a constituent meeting. You have a staff dinner. A staff member slipped on the recently waxed floor on the way to the restaurant. Work-related, right? However, now that dinner is over, it’s free time for the staff. They decide to go to a night spot. Same slip and fall. Work-related? Change it a bit. They are going to an event sponsored by a vendor with whom you do business. I know, you don’t want to think this hard. But, hey, understanding this is what it’s all about. You need to be able to recognize whether the injury “arose out of” and was “in the course of” your employee’s employment activities.
As a business owner, one of your many jobs is that of risk manager. The more astute you become to the intricacies associated with the potentials for risk events to happen, the better risk manager you become and the better employer you become. One of my former mentors told me, when I was just a pup, that “understanding was the booby prize.” What he meant, I came to learn, was that it’s hard work recognizing all this stuff and realizing the consequences of the various scenarios that might occur. The worry, the stress, the brainpower exerted to understand it all may indeed be for many of us the booby prize. Imagine for a moment that you’re Alfred E. Newman, “what, me worry?” No way, you say. Well, if you want that, be an employee instead of an employer.