February 2019: WHEN IS AN EMPLOYEE WITHIN THE COURSE AND SCOPE OF EMPLOYMENT?

I just wrote an article for the ADVOCATE, the official publication of the Nevada Justice Association. The focus of the article centers on the issues surrounding the required analysis for determining whether an injured employee’s injury is within the course and scope of employment. Here is the article.

WHEN IS AN EMPLOYEE WITHIN THE COURSE AND SCOPE OF EMPLOYMENT?
By Herb Santos, Jr., Esq.

Generally speaking, employers and co-employees of a person injured in the course of employment are immune from liability for the injury under the exclusive remedy provision of the workers’ compensation statutes. Additionally, some subcontractors and independent contractors are accorded the same status as employers or co-employees of the injured employee and are thus immune from liability. Determining whether a potential client was injured while engaged in an activity which is within the course and scope of employment is crucial to determine whether the exclusive remedy of industrial benefits applies to your client. Although a particular injury may not seem to be “work related,” the thorough practitioner will explore the work setting to determine whether there is a viable industrial claim. If the employer is the potential negligent party, this analysis is crucial. If in the civil case it is later determined that the client’s injury was industrially related, it may be too late to then file a workers’ compensation claim and your client could be left with no remedy.

The injured worker has the burden to establish that the injury was work related and that burden is to the preponderance of evidence standard. SIIS v. Hicks, 100 Nev. 567, 688 P.2d 324 (1984). The evidence needed to meet the burden is that amount of evidence which will reasonably support a conclusion. State Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). NRS 616B.612(1) requires an employer to provide compensation in accordance with the terms of the Nevada Industrial Insurance Act for any employee injuries “arising out of and in the course of the employment.” NRS 616C.150 imposes the burden on the claimant to show, by a preponderance of the evidence, that the injury arose out of and in the course of the employment. Mitchel v. Clark County School District, 121 Nev. 179, 111 P.3d. 1104 (2005).

The Nevada Supreme Court has interpreted the phrase “arising out of employment” as requiring “a causal connection between the injury and the employee’s work,” in which “the origin of the injury is related to some risk involved within the scope of employment.” Rio Suite Hotel & Casino v. Gorsky, 113 Nev. 600, 939 P.2d 1043 (1997). The Court emphasized that the inquiry is two-fold. If an employee establishes that an injury occurred in the course of employment, the employee must also show that the injury “arose out of” the employment.

As to the first prong, an injury occurs in the course of employment if the injury occurs when the employee is actively involved in an employment task at a particular time. In Wood v. Safeway, the Court explained that “whether an injury occurs within the course of the employment refers merely to the time and place of employment, i.e., whether the injury occurs at work, during working hours, and while the employee is reasonably performing his or her duties.” Wood v. Safeway, 121 Nev. 724, 733 (2005). The activity at the time of the injury has been expanded to include situations where the employee is proceeding to or from work, if it occurs in a place where the employee is subject to the inherent hazards arising from the employment or if the employee is required to remain on the employer’s premises to take care of some other duty incidental to termination. See MGM Mirage v. Cotton, 121 Nev. 396, 400 (2005); Fanders v. Riverside Resort & Casino, 126 Nev. 543, 548 (2010).

Next, an accident or injury is said to “arise out of employment” when there is a causal connection between the injury and the employee’s work. Rio Suite Hotel & Casino v. Gorsky, 113 Nev. 600, 604, 939 P.2d 1043 (1997), citing Murphy v. Industrial Comm’n of Ariz., 774 P.2d 221, 224 (Ariz. 1989). In other words, the injured party must establish a link between the workplace conditions and how those conditions caused the injury. Rio Suite Hotel & Casino v. Gorsky, 113 Nev. at 604, citing County of Chesterfield v. Johnson, 376 S.E.2d 73, 75 (Va. 1989). Further, a claimant must demonstrate that the origin of the injury is related to some risk involved within the scope of employment. Id, 113 Nev. 604, citing Smith v. Albuquerque, 729 P.2d 1379, 1383 (N.M. Ct. App. 1986). However, if an accident is not fairly traceable to the nature of employment or the workplace environment, then the injury cannot be said to arise out of the claimant’s employment. Id., citing O’Laughlin v. Circle A Constr., 739 P.2d 347, 350 (Idaho 1987). Finally, resolving whether an injury arose out of employment is examined by a totality of the circumstances. Id., citing Triad Painting Co. v. Blair, 812 P.2d 638, 643 (Colo. 1991).

Our Nevada Supreme Court has clarified that determining the type of risk faced by the employee is an important first step in analyzing whether the employee’s injury arose out of employment. In Rio All Suite Hotel & Casino v. Phillips, the Nevada Supreme Court described at length the analysis needed to determine whether an injury arises out of employment. Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, 351 (2010). The types of risks that an employee may encounter during employment are categorized as those that are solely employment related, those that are purely personal, those that are neutral and those that are both personal and employment, a mixed risk.

Employment risks are those that are “all the obvious kinds of injuries that one thinks of at once as industrial injur[ies]” and are generally compensable. 1 Larson & Larson, supra, § 4.01, at 4-2. Citing Professor Larson, the Court noted that injuries resulting from employment-related risks are The Court noted that slips and falls that are due to employment risks “include tripping on a defect at employer’s premises or falling on uneven or slippery ground at the work site.” Id. at 351. Injuries caused by employment-related risks are deemed to arise out of employment and are compensable.

Personal risks are those that are “so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment.” 1 Larson & Larson, supra, § 4.02, at 4-2. These types of risks are situations where falls at work are caused by epilepsy, or multiple sclerosis and unexplained falls to name a few. See Mitchell, 121 Nev. at 181; Gorsky, 113 Nev. at 604-05; 1 Larson & Larson, supra, at 4-1, ch. 4. An employee’s injury resulting from a personal risk is not compensable.

Neutral risks are those that are “of neither distinctly employment nor distinctly personal character.” 1 Larson & Larson, supra, § 4.03, at 4-2. To determine whether an injury caused by a neutral risk “arose out of employment,” in Nevada, the applicable test is the increased-risk test. The increased-risk test examines whether the employment exposed the claimant to a risk greater than that to which the general public was exposed. Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, 353 (2010). If the employee is exposed to a common risk more frequently than the general public, there may be an increased risk. If there is an increased risk, the Court reasoned that the employee is subject to an increased risk of injury. If the frequency with which the employee is faced with the risk subjects the employee to a significantly greater risk of injury than the risk faced by the general public, the employee’s injury resulting from the neutral risk is compensable. Id., at 353. As an important side note, the Court specifically stated that

“under the increased-risk test, whether a fall is explained or unexplained is irrelevant. The key inquiry is whether the risk faced by the employee was greater than the risk faced by the general public. Thus, if an employee suffers an inexplicable fall, she can recover if she makes the requisite showing. Accordingly, we clarify Mitchell to the extent that it holds that unexplained falls are never compensable.” Id., at 354.

Finally, the Court recently defined a fourth risk, the “mixed-risk.” Baiguen v. Harrah’s Las Vegas, LLC, 134 Nev., Advance Opinion 71 (2018). Baiguen presented a very interesting set of facts. Mr. Baiguen suffered a stroke when he arrived to work at Harrah’s and before he punched in for work. Based upon his stroke symptoms, his supervisor contacted the manager and the manager told Mr. Baiguen that could not work. The manager had some volunteer co-workers drive him home. Mr. Baiguen remained in his apartment for two days before he was discovered by his girlfriend. His girlfriend immediately took him to the hospital. Had Mr. Baiguen received timely medical treatment within the first three hours, he would have received a medication which would have drastically (30%) improved his chances of a full recovery. Mr. Baiguen sued Harrah’s for failure to provide aid to him during the three hour window. The district court granted Harrah’s summary judgment due to the exclusive remedy rule. Id., at 3. The Supreme Court vacated the decision of the Court of Appeals and affirmed the district court’s summary judgment order. Id., at 3. In finding that Mr. Baiguen’s alleged injury was caused by both his personal condition and an employment risk, the Court explained that a mixed risk is “a personal cause and an employment cause combining to produce the harm.” Id., at 7. The Court held that “a mixed risk arises out of the employment if the employment risk was a contributing factor in the injury. Id., at 7. An employee’s injury resulting from a mixed risk is compensable.

It is highly recommended that you go through a complete analysis of whether the injury occurred within the course and scope of employment before you focus on a civil claim. There are very short statute of limitations in workers’ compensation claims. I strongly urge you to read the Baiguen case as the mixed risk situation test provides numerous scenarios where an injury may be deemed industrial. The last thing you want to happen is that your civil claim is dismissed under the exclusive remedy rule and your client is faced with the potential of missing the boat to file a workers’ compensation claim. If there is a late filing, do not give up. NRS 616C.025 provides an excuse provision for late filing and one of the justifications is if the failure was caused by the injured worker’s mistake or ignorance of fact or of law. Law Offices of Barry Levinson v. Milko, 124 Nev. 355, 356 (2008). I recommend filing the workers’ compensation claim and also pursuing the civil action if it is a grey area. The workers’ compensation insurer will probably deny the claim and hopefully you will get a final decision through the administrative appeals process before the statute of limitation runs on the civil claim. If the employer takes the position that the injury is not within the course and scope of employment and the administrative court agrees, the employer may be prevented from taking the alternative position in a civil action under judicial estoppel. In re Frei Irrevocable Trust, 133 Nev., Advance Opinion 8 (2017).

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Herb Santos, Jr., Esq. is an AV Rated, sole practitioner in Reno and is a sustaining member of NJA. He is a former President of NJA (2014-15) and currently sits on the NJA Board of Governors. He practices primarily in the area of personal injury and worker’s compensation law and is certified as a Specialist of Workers’ Compensation Law in the State of Nevada.