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Extended-premises doctrine may pose risk for employers

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What if an employee suffers an injury while driving to work, while walking on a public sidewalk or during an unpaid lunch break in a common area shared with other businesses located in a large office complex?

Most employers realize that if an employee is injured from a risk related to the employment while the employee is on the employer's premises, it results in a compensable workers' compensation case. However, are these other situations compensable?

To be compensable under workers' compensation, an employee's injury must be due to an accident arising out of and in the course of employment.

Generally, accidents occurring on the trip to or from work are not deemed to arise out of and in the course of employment. However, the extended-premises doctrine is an exception to this general rule and allows recovery of workers' compensation benefits if:

a. The accident occurs on premises which have been appropriated by the employer and used by the employer and its employees incidental to their work so as to make them, for all practical intents and purposes, a part and parcel of the employer's premises and operations; and

b. If that portion of such premises is a part of the usual and acceptable route or means employed by workers to get to and depart from their places of labor and is being used for such purpose at the time of the injury.

By amendment in 1993, the Missouri legislature more explicitly defined whether an injury should be deemed to "arise out of and in the course of employment."

The fourth element of the four-part test provides that the injury must not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life. Consequently, a court reviewing an alleged work-related injury involving the extended-premises doctrine must determine first whether the location of the accident was on an extension of the employer's premises and second whether it arose out of and in the course of employment.

In the case of Frye vs. Viacom Inc. the Missouri Court of Appeals, Eastern District, analyzed a case where an employee parked his automobile in a public parking garage two blocks from his place of employment and was walking on a public sidewalk when he slipped and fell due to ice and was injured.

The court concluded that since the employer had played an active role in creating a parking program for its employees which involved collecting parking fees and obtaining reduced rates for its employees at the public garage, and since the injury occurred within the customary route taken by employees as they walk to work, the parking garage and the public sidewalk were so used by the employer and its employees incidental to their work as to make them, for all practical purposes, a part of the employer's premises.

In summary, the court then concluded the employee suffered an injury arising out of and in the course of employment when he slipped and fell on ice. The court did not analyze whether the employee would have been equally exposed to slipping and falling on ice outside of and unrelated to his employment in his normal non-employment life.

Earlier this year, the Missouri Supreme Court decided the case of Drewes vs. Trans World Airlines Inc., which involved an employee who worked as a TWA reservation agent. The employee's workday included a regularly scheduled unpaid lunch break.

On the day of the injury, the employee purchased food from a vending machine in the TWA-leased break room on the second floor, but she went downstairs to use a break room on the first floor, intending to eat in the adjacent cafeteria, smoke a cigarette and return to work on time.

While she carried her lunch in the first floor break room toward the cafeteria door, she fell and injured her ankle. TWA leased space on the first floor and second floor of the building, but did not lease the first floor break room, which was open to all tenants of the building.

Regarding the employer's premises, the court admitted that injuries to an hourly employee on an unpaid lunch break away from the premises are not compensable, although accidents in or about the premises during a scheduled unpaid lunch break occur in the "course of employment."

The court concluded that in this case, the worker was injured on an unpaid lunch break in a room that was not owned, rented or controlled by TWA, however the first floor break room was common and open to all tenants of the building and adjoined TWA's premises on the first floor.

Therefore, the common break room was "in or about" TWA's premises and, therefore, the employee's accident occurred in the course of her employment.

As to whether the employee suffered an injury from a hazard she would have been equally exposed to in her normal non-employment life, the court concluded she was not equally exposed outside of her employment to the risk of falling during her lunch break.

The court gave no further explanation. It appears the court was focusing solely on where the employee would be during lunch as opposed to her activities in her normal non-employment life when preparing meals. Such a conclusion should be of great concern to all employers.

Judge Ann Covington wrote a dissenting opinion wherein she states that even assuming, arguendo, that the break room was part of the TWA premises, there is no evidence that the employee's fall was caused by any characteristic or condition of the break room. The employee inexplicably fell. She was no more likely to fall in the break room during her lunch break than in her normal non-employment life.

Missouri employers need to be very conscious of the extended-premises doctrine and ensure that all areas which are appropriated or used by them and their employees, even though not owned by them, are as safe as possible.

Additionally, an employer needs to realize that every effort made to assist and accommodate its employees outside of the normal place of employment, such as negotiating reduced rates for public parking, may extend the employer's premises and expose the employer to additional workers' compensation liability.

Finally, when an employee provides notice of a work-related injury, regardless of the location, an employer should conduct immediate and complete investigation by obtaining a statement from the injured employee, statements from witnesses, and obtaining photographs. This ensures there is sufficient information to analyze whether the injury resulted from a risk directly related to the employment or whether the risk is unrelated to the employment and the employee would have been equally exposed in normal non-employment life.

(Jerry Harmison is a shareholder in the Springfield law firm of Miller & Sanford PC. In his 12 years of practice he has specialized in the area of workers' compensation. Information and opinions expressed in the "Letter of the Law" column should not be construed as legal advice. For counseling on specific legal situations, please consult an attorney.)

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