Andrea Cicero Rock

Key Points:

• If an employee is furthering the business interests of the employer when injured, even an injury sustained off the employer’s property can be considered compensable.
• The burden of proving that an injury was sustained in the course and scope of employment is very fact specific. 
• Cases where the employee was injured off the employer’s property should only be accepted if convinced that the employee was in the course and scope of employment.

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Determining whether an injured worker was within the scope and course of employment at the time of an injury is often a difficult decision to make. These cases are based on the specific set of facts involved. However, a case recently issued by the Commonwealth Court does provide additional explanation of what activities may be considered within the course and scope of employment. 

In the setting of a claim petition, the claimant must meet his burden of proof that the injury occurred in the course and scope of his employment, which, at the most basic level, means that the claimant must be furthering the interests of the employer at the time the injury occurred. However, the court, through case law, has developed an exception called the Personal Comfort Doctrine, which permits employees to take brief intervals of time for leisure within the regular hours of the work day without departing from being engaged in the furtherance of the business or affairs of the employer. 

In Henderson v. WP Ventures, Inc. (Workers’ Compensation Appeal Board), 2022 WL 126853 (Pa. Cmwlth. Jan. 14, 2022), the claimant took a break from his job duties and went outside for a cigarette. While outside, he decided to grab a sandwich from a nearby store and was injured when he fell as he was walking to the store. As a result, he filed a claim petition. 

During the litigation, the claimant testified that, if requested, his employer would give him permission to take smoke breaks, or, if his supervisor was unavailable, he would simply take breaks on his own. On the date of injury, a supervisor was not available, so the claimant took the break on his own. While he was outside, he decided to get a sandwich from a nearby store and fell, injuring his head. The Workers’ Compensation Judge granted the claim petition, finding, “Claimant was taking a cigarette break when he slipped and fell on the walkway outside of the building in which he was working, and this was a minor deviation from employment that would fall under the Personal Comfort Doctrine.” 

The employer filed an appeal to the Workers’ Compensation Appeal Board. The Board reversed this decision, specifying that, since the claimant was tending to “personal needs” and “not directly furthering the employer’s business,” he had left the course and scope of his employment and was not entitled to workers’ compensation benefits for this injury. The claimant appealed to the Commonwealth Court of Pennsylvania, which reversed the Board. The court concluded that the claimant’s actions were simply “personal comforts” that did not take him out of the course and scope of his employment.

Here, the court seemed to be persuaded by the fact that this was not a formal or scheduled break and that the claimant was coming right back with his sandwich, in case he was needed for work. As the court noted:

Remaining aware that this is a case-by-case inquiry and that each matter will depend on its evidence, the foregoing cases suggest that the Personal Comfort Doctrine may apply when the claimant’s time away from the work premises is informal in nature, purely devoted to personal comfort of a physical nature, such as a cigarette break or to procure food, and brief enough that the course of employment is not broken. The doctrine may not apply, however, if the worker is on a formalized break or lunch period during which an employee is likely to enjoy a degree of autonomy, however brief, and may engage in other activities in addition to immediate personal needs.

It would be interesting to see what the court would have decided had the supervisor been present that day and had the claimant received “official permission” to take his smoke break. However, that issue is for another day. 

The ruling by the court does provide guidance to carriers and employers in that a thorough review and investigation must be undertaken when a claim is reported. Furthermore, since these cases are driven by their specific facts, it is frequently the best practice to deny the claim and force the claimant to meet his burden of proving that the injury occurred in the course and scope of employment. 

*Andrea is a shareholder and works in our Philadelphia office. She can be reached at acrock@mdwcg.com or 215.575.2756.
 

_{Defense Digest, Vol. 28, No. 1, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}