The state where a traveling employee such a flight attendant, truck driver or salesperson is based has more to do with a potential workers compensation claim than the circumstances of an injury itself, according to experts who say employers need to know the rules of their states and make clear to employees the risks of getting injured while traveling.
“It’s the way of the world now; employees are working in all parts of the country,” said Paul Braun, Los Angeles-based managing director for Aon Risk Solutions. “It’s challenging when there’s the question of are you on the clock?”
Experts say the scenarios vary, but the key question remains when it comes to comp: Was it work-related? A car accident while staying in another city. Getting attacked in a parking lot of a hotel or restaurant. Injuring oneself in a hotel room. Or, as illustrated in a recent court case in Ohio, an Ohio-based flight attendant falling when returning to her hotel near New York’s LaGuardia Airport after going out for a bite to eat with co-workers.
“We have 50 sovereign states with 50 different workers comp systems… this same scenario will be considered (work-related) in some states and some states won’t see it as such,” said Nikki Mehrpoo Jacobson, an attorney with Rose, Klein & Marias L.L.P. in Los Angeles and workers compensation professor at West Los Angeles College. “In some states, you have to look at (whether) your action benefits you or your employer.”
Ms. Jacobson said the outcome of the Ohio case was a surprise. “A flight attendant benefits the company by staying overnight; it’s for the company’s convenience,” she said. “She wasn’t there for her own sake. She was there for the company.”
But Ohio’s Court of Appeals in Ohio’s Second District saw it differently. A Dayton, Ohio, judge ruled in the case of Aysha Osten v. (Ohio) Bureau of Workers Compensation that the flight attendant for Vandalia, Ohio-based PSA Airlines Inc. was not eligible for workers compensation after her fall during her New York layover.
Ms. Osten had been on a “personal errand at the time of her injury,” according to the Dec. 29 ruling, which leaned on case law that found “even if one assumes that traveling employees are ‘in the course of’ their employment during travel, they are not entitled to coverage unless the injury also arises out of their employment. As has been indicated in various cases, personal errands do not meet this standard.”
The ruling upheld a judgment by the Ohio Bureau of Workers’ Compensation, which dismissed Ms. Osten’s appeal that she was eligible for benefits after the bureau initially covered the costs for the injuries to her wrists and knees, according to court documents.
On Jan. 18, Ms. Osten’s attorney, Gary Plunkett of Hochman & Plunkett Co. L.P.A. in Dayton, Ohio, filed a notice of appeal to the Supreme Court of Ohio. He told Business Insurance he hopes Ohio’s highest court will address an issue affecting traveling employees who get injured while away from home and, as he sees it, on the job. “The state of Ohio has never addressed the traveling employee doctrine,” Mr. Plunkett said. “Most jurisdictions have addressed this issue.”
The Ohio Bureau of Workers’ Compensation was aware of the appeal as of late January, said a bureau spokeswoman.
“This would have had a different outcome in another state,” said Ms. Jacobson. “In California, this decision would have been for the employee.”
The same could be said for Illinois, said Jennifer J.C. Kelly, a partner with Anesi, Ozmon, Rodin, Novak & Kohen Ltd. in Chicago. “Flight attendant cases are the quintessential traveling-employee case. We see a lot of them because of all the airline hubs in Chicago,” Ms. Kelly said.
“The rule in Illinois is if someone is considered a traveling employee, they are given broader protections for what is considered an on-the-job injury. It’s from the time you leave home to the time you return.” The coming-and-going rule, which says an injury that arises during a worker’s commute to and from work does not qualify for workers comp, is also more loosely interpreted in Illinois compared with other states, Ms. Kelly said.
The specific facts themselves are critical in determining whether there is comp coverage, according to Jeffrey M. Adelson, a Santa Ana, California-based managing partner for the law firm Adelson, Testan, Brundo, Novell & Jimenez. Even in California, which often rules in favor of the traveling employee, circumstances can throw a claim outside of the boundaries of workers comp, he said.
“It all comes down to arising out of employment, course of employment, and analysis,” he said, adding that such cases are likely to be appealed because so much depends on “how well the facts are argued.”
An injured flight attendant who had gone to dinner with his or her co-workers and is found to have discussed the next day’s flight or even commute to the airport would be compensable, he added.
Often considered is the “personal convenience doctrine,” he said. “Personal convenience permitted that (a worker) be required to eat,” he said, adding that even that presents issues: What if the worker had been drinking with dinner? Did that contribute to an injury?
Employers can better protect themselves by establishing rules of conduct for traveling employees, said Cora Lee, Orange, California-based director of compliance for Gallagher Bassett Services Inc. Written policies could include examples of what the employer's state considers a work-related injury while traveling so employees understand how their state views injuries while traveling. “I think (employers) need to have some measures in place where it is written and it is completely understood by the employee upon hire,” she said.