Employment risk and travelling legally intertwined for the purposes of workers’ compensation. For a workers’ compensation lawyer in Nebraska, they are also intertwined on a personal level.
Back on Friday January 12th, I drove 40 minutes south to Beatrice, Nebraska for a workers’ compensation trial where the main issue of the case was whether an employee who injured herself going out to roll up her car windows during a rain storm had an injury that related to her employment.
After that trial, I drove about an hour west for a client meeting in Thayer County and returned to Lincoln. I stayed up late the night before and woke up early that morning getting ready for a difficult trial. It was a long drive home.
Four weeks later, on Friday February 9th, I filed my final brief in the Beatrice case from a truck stop in Grand Island after a deposition and client meeting in Grand Island. I probably could have driven back to Lincoln and filed my brief, but I wanted to get my brief filed so I didn’t have to worry about it and potentially severe winter weather on the drive home.
Earlier this week, I negotiated a settlement in another case while traveling from Pierce County in northeast Nebraska back to Lincoln. I finalized the settlement with the opposing attorney while they were travelling.
Fatigue, weather and the temptation of using mobile devices while driving are risks for a workers’ compensation lawyer in Nebraska or anyone who must drive long distances for work in Nebraska or anywhere else. For white collar employees like me, driving is by far the biggest occupational hazard that would be covered under the Nebraska Workers’ Compensation Act.
Nebraska law holds that employees injured while travelling for work are covered by workers’ compensation so long as they are engaged in the employer’s business. This is referred to as the commercial traveler rule. The question becomes what exactly is the employer’s business? This question can arise for all employees, not just travelling employees. In my case involving the employee who hurt herself going outside to roll up her car windows in a rainstorm, the court found that employee’s injury was covered by workers’ compensation because she was taking a break for personal convenience. Injuries that take place during breaks for personal comfort or convenience are generally held to be compensable or covered by workers’ compensation.
In the context of a travelling employee, if I had injured myself last Tuesday afternoon while getting lunch at a Subway in York, that injury probably would have been covered by workers’ compensation.
But not all injuries on a job site or while travelling for work are compensable. If an employee is injured while doing something strictly for a personal reason not connected to work, then that injury is not compensable. For example, an injury while travelling to an extra-marital rendezvous during a business trip would likely not be covered by workers’ compensation.
While injuries incurred during personal comfort breaks such as bathroom or meal breaks tend to be covered, injuries while an employee engages in an act of personal convenience are more controversial. They are what we call in the lawyer trade “fact intensive inquiries.” In layman’s terms, it depends on the circumstances. Is the break paid? What are the break policies? How does the break benefit the employer? How much did the errand or break deviate from employment duties? What are the exact employment duties? Injuries involving breaks for personal convenience present difficult factual and legal questions to which there are no easy one-size-fits-all answers.
*Yes, I am paraphrasing “Turn the Page” by Bob Seger and The Silver Bullet Band. For the record, the original “Turn the Page” is far superior to the Metallica cover.