Worker Injured During Sex Entitled to Workers’ Comp Benefits

Granted, the decision is not from a Court in Pennsylvania, but, instead, one in Australia. At the same time though, a Court finding that a worker injured while having sex is entitled to workers’ compensation benefits, is one which cries out to be explored. And, the result is not as bizarre as one might think.

As we have previously addressed, employees in PA are either “stationary” or “travelling,” depending on whether they have a fixed place of employment. A travelling employee, one who is without a fixed place of employment, has greater latitude for a finding that an injury is within the scope and course of his or her employment.

In the Australian case, according to the article, the unidentified female employee was on a business trip in 2007. While engaged in sexual relations in her hotel room, “a glass light fitting was torn from its mount above the bed and landed on her face.” The injury resulted in her being disabled from performing her job.

The workers’ comp claim was initially approved, but then rejected upon appeal, finding the injury was not suffered in the scope and course of her employment. As the article noted, the appellate level Court found, “the government had not induced or encouraged the woman’s sexual conduct . . . the sex was ‘not an ordinary incident of an overnight stay’ such as showering, sleeping and eating.”

Upon further appeal, however, this determination was reversed, and the injury was found to be within the scope and course of the travelling employee’s employment, such that she is entitled to workers’ compensation benefits. As noted in the decision, “‘If the applicant had been injured while playing a game of cards in her motel room, she would be entitled to compensation even though it could not be said that her employer induced her to engage in such activity.'”

The decision was then affirmed upon appeal, with the Court finding that the views, and approval, of the employer with regard to the activity at issue were irrelevant. The award of workers’ compensation benefits were upheld.

In law, we sometimes refer to a “frolic” as something being done outside the scope and course of employment. This case gives a new twist to our use of this term.