Employee injured getting lunch at a festival: She gets comp
March 7, 2011 by Fred HosierPosted in: Healthcare industry, Injuries, Special Report, What do you think?, Workers' comp, new court decision
They call it workers’ comp, right? Then why did this employee get comp benefits for an injury that occurred when she wasn’t working?
Margaret Fischer was a visiting nurse and visited several patients daily.
One day, after completing a 1:30 p.m. appointment, she checked in with her supervisor and was told she could get lunch because her next appointment wasn’t until 3:30.
Fischer got lunch at an outdoor festival. As she was returning to her car after lunch, she fell and broke her arm. She applied for workers’ compensation benefits.
She was awarded benefits, and her employer and its insurance carrier appealed. The New York Workers’ Compensation Board agreed that she should get comp, and the company took the case to a state appeals court.
The employer agreed that Fischer was an “outside employee” who was entitled to expanded, portal-to-portal workers’ comp coverage and that it was “reasonable and customary for her to have obtained a meal” between assignments.
After agreeing to that, the only avenue of appeal is to claim that her travel to the festival for lunch was so unreasonable that it constituted a disqualifying deviation from her employment.
The court found that the festival wasn’t a significant departure from Fischer’s route to her next appointment. The judges noted she was paid after her lunch break even if she had no scheduled appointments since she carried a beeper to respond to her employer.
The court said Fischer’s lunch break at the festival didn’t constitute a disqualifying deviation from her employment and she should get comp benefits.
Workers’ comp laws vary from state to state, but some do give extended coverage to employees who travel as part of their jobs.
(Fischer v. Kaleida Health, Appellate Div. of Supreme Crt. of NY, No. 510511, 2/10/11)
Do you think the court made the right call? You can share your opinion in the Comments Box below.
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Tags: disqualifying deviation from employment, employees who travel, lunch break, nurse, Workers' comp
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March 7th, 2011 at 11:38 am
I want work comp if I get in an accident on my way to work. I wouldn’t be on the road if it weren’t for that pesky job. Why shouldn’t I then receive W/C for an auto injury coming to work? How about if I am going to the store to purchase clothing for work? I wouldn’t need to make that run to the store for clothing if I didn’t have that job, W/C should cover it.
March 7th, 2011 at 11:14 pm
These types of stories always make me smile, there is such a fine line we walk with the finite laws and regulations that govern us. Despite the fact that it may seem insane that a trip to the festival was an acceptable establishment to eat and considered on route, it’s quite feasible that the courts made the right call. We don’t know the exact specifics and let’s consider ourselves for a moment. We are on our way to an appointment, passing by a festival we may see every day knowing the local vendor serves up the best hot dog in town we decide to stop off and grab one of these delicious dogs on our way to work. Suddenly it starts to sound like a lot more normal of a work lunch activity.
March 8th, 2011 at 6:53 am
The key here is she is was an outside employee that is on call. Her normal work place is a car or people’s houses. We run maintenance crews and if they get hurt any time they are on call or in a company vehicle it is consider a covered event.
Driving to work as a regular employee is normally not covered because the car is not part of your normal work routine. Your work starts when you get to your facility.
March 8th, 2011 at 8:55 am
This is just wrong. Workers’s Compensation, like most government programs, is a good idea that has gone extremely bad. So sad that you got hurt, but you were on lunch and not working or in transit therefore not a W/C claim. Pay your deductible and file it through your health insurance. No health insurance, so sad, but still a not W/C claim.
March 8th, 2011 at 9:03 am
How about W C coverage for getting shot by someone robbing the bank while you are in there depositing your paycheck that you wouldn’t have earned had it not been for that pesky job you had?
March 8th, 2011 at 9:32 am
Seems to me that it would be easier for everyone if the WC system would develop a list of what IS NOT covered by WC in New York - it would be a very short list…She was not even working! She was eating…
March 8th, 2011 at 10:09 am
We should continue to punish the employers more, as we all know it is cradle to grave no exceptions.
March 8th, 2011 at 10:26 am
If she were at Taco Bell getting lunch and slipped on the floor, she should have Taco Bell pay her for the unsafe conditions that caused the fall. If she were at Walmart getting something to eat, she would have them cover the expenses. Why should the employer pay for this. If there were an unsafe condition that lead her to fall at the festival, they should be held accountable. She was not in her car, which is part of her working enviromant. An employer can not control the actions of other places outside there own property. If someone comes to my house and has an accident because I left an unsafe condition for them, my homeowners insurance would end up paying the bill.
March 8th, 2011 at 10:49 am
This is so rediculous that a “professional” would even think to apply for w/c when, in fact, “professionals” do not go to festivals for lunch!! Going to lunch would constitute making a stop en route to the next appointment. I do not know how far out of her way she went to get to the festival, but it is judgements like this that are causing the decay of the whole system. GUEST says that he/she would expect w/c for going to get uniforms, would you also state that you would like your health insurance to pay for an auto accident and injury if that were to happen when you were en route to a pharmacy because they called in a prescription for you and you had to travel to get that prescription filled there? Would you file a suit against the Department of Motor Vehicles if you were injured on your way to register or renew your driver’s license because you had to? Think about it!!!!
It has become such a travesty that people don’t take responsibility for their own actions, and subsequently, if someone is on your property, in Wisconsin during the winter, slips on the sidewalk and breaks their arm, they can sue you, even thought the city wanted the sidewalk and it is considered city property, yet the homeowner is responsible to maintain it!!
Take responsibility for your actions and quit trying to blame others for your own bloopers and screw ups……………I hope someone video taped and it and puts that on YoutTube!!!!
March 8th, 2011 at 12:13 pm
Look at the bright side…at least she didn’t choke on the hot dawg! Almost surprised the company wasn’t cited for not supplying lunch.
March 8th, 2011 at 3:36 pm
The fact that she went to a festival of some kind for lunch is not relevant. What we do know is that she was not clocked out. Unfortunately, this means that the she is on the payroll and still covered by Workers’ Compensation. I agree it is pretty weak. My guess is that when you have an employee that is commonly off site that there needs to be a Memorandum of Understanding written stating something to the effect that during the period that the employee is off for lunch that they are free to pursue other interest and they are not under the control of the employer. Therefore, they are not covered by Workers’ Compensation during that period.
Now if she successfully sues the responsible parties at the festival for whatever, her award or at least part of it should be snatched up by the State and that amount should be credited to her employer’s Workers’ Compensation Insurance policy.
March 9th, 2011 at 6:42 pm
Chuck C
After reading all these comments, finally, you got it right. We all may not like the situation, but facts are facts. Did anyone catch it when the article said she carried a beeper to respond to her employer? That means “on call” people. “On call” means w/c…sorry, but that’s the way it is.
March 10th, 2011 at 9:54 am
The point is that she was at work! If a sales man fell in an airport bar while on a Company trip he would get comp, and this is no different.
March 10th, 2011 at 10:13 am
It might be the way it is, but it doesn’t make it right.
I am on call every weekend. I carry a company issued cellphone. 2 years ago I was playing a basketball game on a Saturday and broke my ankle. Guess I should have filed it as work-related since I was on call. Give me a break. Literally.