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By Nancy Grover

Legal experts have varying opinions but share one sentiment about a similar claim here: "I don't think the answer's all that clear cut," said Cassandra Roberts, senior workers' compensation partner at Young Conaway Stargatt & Taylor LLP in Wilmington, Del. "You want to say, 'no way'; but look at the laws of your state closer and say, 'wait a minute, Australia may not be that crazy.'"

Following dinner, the two went back to the woman's motel room and were, as the male friend later said, "going hard" at sex when a light fixture came away from the wall above the bed, causing her facial and psychiatric injuries. Her claim for workers' comp benefits was initially rejected but later granted by a federal court.

The claimant's attorney said the injury should be compensable, just as if the claimant had slipped in the shower. The federal judge concurred, saying if the woman had been injured playing cards in her motel room she would be entitled to compensation.

Some legal experts here have expressed a similar view.

"When you sort of forget about the semi-salacious nature, the case isn't nearly as crazy and wild as some folks think it is," said Thomas A. Robinson, legal author from Durham, N.C. "We seem to be introducing or reintroducing an element into the workers' comp setting that she was at fault when, in fact, that whole basic notion of fault is supposed to be foreign to the workers' comp arena."

Portal-to-portal. U.S. experts say employees are generally covered for injuries sustained while traveling on company business from the time they leave their homes to the conclusion of their trips. Portal-to-portal coverage exists in many jurisdictions.

"While that might not be the absolute majority view, certainly the plurality of states would do it that way," Robinson said, "unless there is an absolute clear deviation from the employment."

There is no litmus test to define "deviation."

The "deviation" criteria would likely differ among states and possibly even within a single jurisdiction. In reviewing recent Delaware cases, Roberts said there's a question as to whether the Australian claim would be upheld in her state.

Nevertheless, Roberts believes there may be a stronger argument to be made against such a claim.

"In trying to look at this with a sense of balance, it still gets down to the fact that there are certain risks that an employer should not have to bear because they have no reasonable relationship to work," she said. "Once you get into the mechanism of injury, you don't think ... sex is a risk that should be assumed by the employer."

Whether the claimant's actions could be considered enough of a deviation to warrant rejecting workers' comp benefits is only part of the issue.

Advice for employers. The experts say there is little employers can do to prevent such claims by traveling employees.

"The issue of compensability isn't whether the employer can control the circumstances such that it can prevent injuries or reduce the risk," Robinson said. "So comments that the employer can control the conditions of the hotel, that's a red herring because they can control whether they use employees who have to travel. That's the whole rationale for the portal-to-portal rule is that the employer can't control all conditions."

Employers who believe they won't be liable for many of the incidents that might happen to their traveling employees would be wise to think otherwise, Roberts suggests. "I always tell employers, when you have a business trip you basically have some semblance of the portal-to-portal rule," she said.

But that does not necessarily mean employers should accept all such claims. "If the facts are bizarre enough, you think you have a defense -- under horseplay, deviation, forfeiture -- you advance that defense."

Cassandra Roberts and Thomas A. Robinson will be featured speakers at the National Workers' Compensation and Disability ConferenceŽ & Expo, produced by LRP Publications.

Read more at the WorkersComp Forum homepage.

June 4, 2012

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