Taking Break for Personal Comfort Does Not Take Employee Out of Scope and Course of Work

A topic we frequently address, since it often becomes the subject of appellate decisions, is whether a worker is injured while in the scope and course of his or her job.  Generally (outside the commuting issue), either the employee took a small, momentary departure from the job, or completely left the scope and course of the job by some action.  These cases often succeed or fail depending on the precise facts involved, though appellate decisions do help provide us with necessary parameters.

For example, the Commonwealth Court of Pennsylvania recently made a decision in the case of Starr Aviation v. Workers’ Compensation Appeal Board (Colquitt).  Here, the employee worked at Pittsburgh International Airport, driving a cart to transport bags to and from the airplanes.  One day, during her menstrual cycle (a phrase never before used on this blog!), the employee forgot to bring the necessary feminine products, and her wallet, with her to the job.  Her mother agreed to bring the products and money to her.  After obtaining permission from her supervisor, the employee took the cart to meet her mother (at a terminal that she did often have to travel to).  In addition to the feminine products, her mother also brought her lunch money, TV dinners, and cigarettes.  On the way to meet her mother, there was an accident, which led to the lower left leg of the employee being amputated.

The claim was denied by the workers’ compensation insurance carrier, on the basis that the employee was not in the scope and course of her job duties at the time of the injury.  A Claim Petition was litigated before the Workers’ Compensation Judge (WCJ).  In the litigation, the Employer presented testimony from fact witnesses that the employee was offered food and money by co-workers and that feminine products were available in the ladies’ room.

After considering the evidence, the WCJ granted the Claim Petition, finding that she had permission to meet her mother, that her job performance would be adversely affected if she did not have the feminine products, and that the injury took place on the Employer’s premises.  In short, the WCJ concluded  that her temporary departure from performing work to administer to her personal needs did not take her out of the course of her employment.  The testimony of the fact witnesses was found by the WCJ to be immaterial or inconsequential.  This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed.  The Court explained that the test in this case is “whether the employee was actually engaged in the furtherance of the employer’s business or affairs, regardless of whether the employee was upon the employer’s premises.”

When we analyze this issue, the Court reminded us that existing case law has found, “an employee is considered to have sustained an injury while actually engaged in the furtherance of an employer’s business interests and affairs, where the injury occurred during inconsequential or innocent departure from work within the regular working hours.”  This is known as the “personal comfort doctrine.”

Since the meeting with her mother should not have taken more than 10 minutes under ordinary circumstances, the Court found this situation analogous to simply making a trip to the rest room.  The Court noted that, “The common thread in these instances is that the employee, upon request and permission, is administering to his or her own health and comfort, taking measures that are reasonably necessary to alleviate a condition that could potentially interfere with an employee’s ability to work and make the employee more effective in resuming and/or completing work duties.”  The fact that other things were being delivered besides the feminine products did not change “the urgency of and need for the feminine care product.”