Workers' Comp Claims: When Not Working Is Part of The Job
by David Schneider, Esq.
A frequent issue in Arkansas workers’ compensation claims is the compensability of injuries occurring during breaks or while the employee is not directly engaged in employment activities. In 1993, the legislature added language to the workers’ compensation law providing that only injuries arising while employment services are being performed would entitle the injured worker to receive benefits. The proponents of that amendment were confident it would prevent accidents during breaks or before or after work from being compensable.
Ray v. University of Arkansas
At first, that confidence appeared justified when a number of claims were denied because the claimant was at lunch or on break. However, the pendulum swung the other way in a case involving a food service worker at the University of Arkansas. Gudrun Ray was on her lunch break in the cafeteria of the student union at the University of Arkansas. While getting an apple from the buffet line she fell, injuring herself. Her employer contested her workers’ compensation claim, arguing she was not performing an employment service at the time of her injury. Ms. Ray asserted she was entitled to benefits because she was on a paid break and her employer required her to eat at the cafeteria so she could assist customers. The Arkansas Workers’ Compensation Commission ruled in favor of the employer and denied the claim. But the Arkansas Court of Appeals reversed and held since the employer required Ms. Ray to be in the cafeteria, and required her to be on call to return to her job duties at a moment's notice, the employer was benefitting from her conduct and was therefore liable for providing her workers’ compensation benefits.
Additional Cases Follow New Trend
The trend continued when the subject turned to breaks of a more personal nature. In two cases nearly identical claims, an employee at an insurance office and another in a factory, were injured while returning from the restroom. The Commission denied each claim finding the claimants were not performing employment services when injured. But the Arkansas Court of Appeals and the Arkansas Supreme Court both ruled that restroom breaks were a necessity during the workday and were therefore job related activities. They concluded an employer could not deny benefits to workers injured while on restroom breaks.
In deciding theses and other cases, courts have held employment services are being performed when the employee does something that is generally required by the employer or the activity is within the time and space boundaries of the employment, or the employee was carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly. See Collins v. Excel Specialty Products, 347 Ark. 811, 69 S. W. 3rd 14 (2002). That definition has been used to award benefits to employees fixing their morning oatmeal, smoking cigarettes while waiting for their name to be called, or otherwise doing something besides working.
While it is going too far to say all injuries during breaks are compensable (many such claims are denied), it is fair to say many, if not most claimants, who get hurt while on a break may be entitled to receive workers’ compensation benefits. The connection between a break and a job related duty will, in most cases, arise when the break is being taken under conditions, or in a location, mandated by the employer, or is taken in such a manner to improve the workers’ job effectiveness. But considering the tenuous nature of the standard, this is an issue that will continue to be frequently litigated.
About the Author:
David L. Schneider is a mediator and legal advisor with the Arkansas Workers’ Compensation Commission. An attorney since 1983, Mr. Schneider was one of the first persons to be certified by the Arkansas Supreme Court as a civil mediator, and is also certified to mediate claims pending before the Arkansas appellate courts. Having been with the Commission since 1989, Mr. Schneider has been involved with all aspect of deciding workers’ compensation claims and frequently writes and speaks on workers’ compensation matters to employers, employees and claims professionals. He is now in his forth decade of dealing with workers’ compensation issues.
Join Mr. Schneider for the Advanced Workers' Compensation seminar in June