Is off-duty swimming pool injury eligible for workers' comp?

Is off-duty swimming pool injury eligible for workers’ comp?

October 15, 2012 by Fred Hosier

Posted in: Bizarre Accident of the Week, In this week's e-newsletter, Injuries, Special Report, Workers' comp

Imagine this: You send an employee to a job away from home and put him up in a hotel. While not working, your employee injures himself in the hotel swimming pool. Will the injury be covered by workers’ comp?

Antonio Parvool traveled to Hawaii for Tony’s Food Service of California to furnish catering services to movie production crews.

While there, he stayed at a hotel provided by his employer.

One day while he wasn’t working, he dove head-first into the shallow part of the hotel’s pool.

He suffered injuries to his neck, upper extremities, lower extremities and digestive system.

Parvool’s employer wanted to deny him workers’ comp coverage. The employer pointed out he wasn’t on the clock when he was injured.

A California workers’ comp judge ruled Parvool’s injury arose out of voluntary participation of an off-duty recreational activity and wasn’t part of his work-related duties.

An exception to the rule

But Parvool’s attorney argued this was a case of the “commercial traveler” exception.

A commercial traveler is someone on a trip for business purposes, such as a conference or special project. When an employee is a commercial traveler, it’s usually considered that he is always on the clock.

The California Worker’s Compensation Appeals Board reversed the judge’s opinion. It agreed with Parvool’s attorney that this was a commercial traveler case and that it would be unreasonable to expect an employee to remain in a hotel room while far away from home on business travel.

The commercial traveler is just one type of exception to the usual workers’ comp coming and going rule, which says an employee isn’t covered for injuries suffered on the way to or from work. Other exceptions include:

if a worker has to use his personal vehicle to travel to multiple work sites
if a worker is asked to perform “a special mission” for the employer while on his way to or from work, and
when travel is part of their job, such as a delivery truck driver.

What do you think of the appeals board’s decision? Let us know in the comments below.

(Antonio Parvool v. Tony’s Food Services, CA W.C.A.B.)

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Tags: commercial traveler exception, Workers' comp

Aida

Oh great. Next time I travel on business, my bosses will have me stay at one of those hotels that have nothing fun to do there.
Randy L

All of my training states that once an employee reaches his/her motel /hotel that the motel/hotel is considered there temporary residence and any accident would not be considered work comp.
Another thing not mentioned, had the employee consumed any adult beverages (alcohol)? Was the employee subject to a post-accident drug/alcohol screen? Would a positive drug/alcohol test have any bearing on the case? Just wondering.
alecfinn

So (just to be clear) if you are a “commercial traveler” and you get VD in a hotel from someone you just met or who was a working person………..The treatment would be covered?

That is too silly……..I do understand some of the reasoning but if you are on your own time it should not be WC “commercial traveler” or not.

If you are a “commercial traveler” and can collect WC for stuff when you are off duty ……………… Then what about the rest of the rules we all have to work with?
http://tax-payroll.com Sherry

This is not only another SAD commentary of how Calif. is running businesses into the ground and out of state, it also highlites how out of control our government is. People who bring this sort of scam lawsuit should get nothing and the lawyer should be disbarred. If, as an employer, I sent people on a trip that fell into this loophole, I would require the employee to engage in no activity other than the work purpose they were there for. If the employee is considered on the clock 24/7, then I would have that right just as I would if they were at my principle place of business. Anything else is a double standard designed to penalize the employer.
http://pctonline.net Dave B.

This is utterly ridiculous. At some point the government is going to have to realize that people need to take responsibility for their actions. At the risk of sounding inhumane, if you are are dumb enough to dive into the shallow end of a swimming pool you deserve what you get. I don’t like to see anybody get injured but the employer should not have to foot the bill for an employee’s ignorance, especially when not engaged in work related activities.
Tim

The problem is not with the board or the second judge. It’s with the misguided and short-sighted legislators. If there is a “commercial traveler” clause in the law then of course the judge is going to find the way he did. He is not at liberty to use common sense as the first judge did. He has to split hairs and uphold the law. Common sense is the role of the legislature. It is, apparently, in short supply.

I don’t know how any business on the left coast survives.
Tanya

If people spent as much time working at honest jobs as they did trying to scr*w the system over, we would all be better. I have dealt with a work related injury for over 4 years now. I can not say specifically when it started, but I know it was due to my activites on the job. Now that I have to have surgery, I can’t get workers comp, since I never reported an “extreme” incident that would prove I did the injury on the clock.
Jeff H.

Unfortunate as it is – this type of law reflects our general society in a complete lack of personal accountability/responsibility regarding choices, decisions, actions, etc.
Robert Inouye

Is it any wonder why businesses are leaving CA for friendlier areas? I agree wholeheartedly with Jason B. just plain ridiculous.
Janet

And they wonder why unemployment is so high…..No reason to work. People work harder trying to find a quick, easy dollar!
Tim Jamison

If the activity had anything to do with the employee’s job duties, I would agree with the ruling. There was no indication that Mr. Parvool was entertaining prospective clients or serving drinks at the pool, so the assumption is that his presence at the pool served no interests of the employer. To put it another way, if I am an employer and I know that I am responsible for any irresponsible acts by my employee, he will be sent to Hawaii with very specific instructions: “You are not to go to a pool. You are no to go sight-seeing. No trips to the beach. No hula dancing. In fact, do not leave your hotel room except to serve the required meals and return immediately. Eat via room service only-no restaurants. No guests of any kind in your room.” This is just a partial list; the real set of restrictions would be much longer. If the law says I responsible, I’m going to protect myself against frivolous lawsuits. Mr. Parvool wouldn’t like it, but he can’t have it both ways.
Chris

So…..there is no responsibility for one’s own safety???
Steve

This is another example of why California is in the mess it is in. An injury due to stupidity on the part of an individual compounded by stupidity on the part of a board or court that awards stupidity with entitlement. With a more tragic outcome, this guy could have won a Darwin award.
DMac

Bluntly stated the decision was B.S. – #1 The signs surrounding the pool suggest no diving – I almost guarnentee that sign is in place as a business traveler myself. #2 He was not in a working status at the time of his incident. As Jason states above, another rediculous decision. Heck, what is not considered WC this day and age – let’s just do away with the court and consider any injury whether at home, on vacation, or in your personal time, whether being on a payroll or not as a workers comp case. Let’s just pay everyone that is injured out of that bucket. No rules, no lawyers, no doctors reports – anyone who has an injury, lets just give them money, as long as they can provide even a hint that it possibly could have happened in a work situation. Let’s build another 47% who get money for nothing….It is so sad that even as sarcastic as it sounds were a headed thata way….
alecfinn

So I guess now the Australian injury from motel sex should be covered……..Just silly
Jason B

Yet another ridiculous decision…
Willy

With the “commercial traveler” exception in place does that mean that any injury done in that time frame he is staying at the hotel off the clock is covered? For example: he goes to a carnival and falls off a ride, he rents a motorcycle or ATV and he gets injured because he dumped it, an earthquake hits and he gets injured by falling debris, he visits the aquarium and sees a trainer get attacked by a whale which causes mental stress, or he purchases services from a prostitute and while having sex in his room a light detaches from the wall above the bed and falls and hits him in the head. That’s just silly to have all that covered. The fact that he was stupid enough to dive into a pool into the shallow side is his own fault, not the employers.