WHEN IS AN EMPLOYEE WITHIN THE COURSE AND SCOPE OF EMPLOYMENT

This is an issue which comes up almost every day in my practice. Insurance companies will look at any way to find that an injured worker was not in the “course and scope of employment” when the accident occurred.

When looking at whether an injury occurred in the course of employment, we look at whether the accident occurred when the employee is actively involved in an employment task at a particular time. Did the injury occur at work, during working hours, and while the employee is reasonably performing the work 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. 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).

There are three general categories of risk associated to all employee injuries. They are employment risks, personal risks and neutral risks. Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, 351-53, 240 P.3d 2, 5-7 (2010). Employment risks 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. 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. 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. Neutral risks are those risks that are neither distinctly employment nor distinctly personal.

The increased risk test is used for neutral risks and allows an employee to recover if the employee proves the injury resulted from a risk greater than that to which the general public is exposed. An injury resulting from a neutral risk may be compensable if the employee was exposed to the risk more frequently than the general public. It does not matter whether the accident is explained or unexplained as long as the employee can show that he faced a greater risk than the general public.

If your claim is denied because the Insurer states that your injury did not occur within the course and scope of your employment, you need a detailed analysis by a qualified workers’ compensation attorney to evaluate whether the evidence supports a finding that the injury meets the requirements of NRS 616C.250.

Herb Santos, Jr., Esq.
Herb is a NJA Board Certified Workers’ Compensation Specialist. He is recognized by the National Workers’ Injury Law & Advocacy Group as one of America’s leading attorneys representing injured workers. Herb was also selected as the 2018 Trial Lawyer of the Year in Nevada.