Workers Compensation Newsletters


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Course of Employment and the Personal Comfort Doctrine

An employee injured in the course of employment is entitled to workers’ compensation benefits. However, compensability may remain unaffected even if the injury occurred when the employee deviated from his specific job duties to engage in an activity that was purely personal in nature and solely for his own comfort. The personal comfort doctrine allows employees to slightly deviate from their job duties, within the usual time and space parameters of their employment, without losing workers’ compensation protection. It is generally understood that employees should be able to tend to their physical needs, such as using the restroom, getting a drink of water, or even taking a break to smoke, during the course of their employment.

Implementation of Workers’ Compensation Policies and Procedures

The escalation of workers’ compensation claims and, by correlation, premiums, makes it vital that employers create and implement policies and procedures to effectively address disability management and comply with state and federal law. These policies and procedures should be reduced to writing for reference and to ensure their consistent application.

“Substantial Gainful Activity” for Social Security Disability Determination

To be declared "disabled" for social security disability purposes, the individual must not be able to engage in any substantial gainful activity. "Substantial gainful activity" is a term of art used by the Social Security Administration (SSA) to mean doing significant physical or mental activity for pay or profit. An individual’s work can still be substantial even though it is engaged in less than full-time. The SSA does not normally consider activities such as household chores, hobbies, school attendance, or participation in social programs or clubs to be substantial gainful activity.

Third Party Defenses to Action

When a third party is sued for his role in causing an employee’s injury, he may present various defenses. One such defense is the contributory negligence of the employee or his employer. If the employee shared in causing his injury, the contributory negligence defense could be wielded by the third party and be just as viable as with any other negligence action. When the employer is the employee’s subrogee, the defense is as powerful against the employer. Further, in those jurisdictions adhering to the comparative negligence rule, the employer’s recovery would be reduced by the amount of fault allocated to the employee. When an employer negligently contributes to the employee’s recovery, it is generally held that the contributory negligent defense is ineffectual; as the employer is stepping into the shoes of the employees, its own negligence has no bearing on the "employee’s" cause of action.