Kentucky: Divided Supreme Court Draws Distinction Between Deviations in Work Performance and Those During Personal Comfort Activity

A divided Supreme Court of Kentucky held that injuries sustained during a paid break by an office worker, when she was hit by a car as she crossed a street in front of her employer’s premises did not arise out of and in the course of her employment because she failed to use an available cross-walk and instead crossed the street in the middle of the block. The majority quoted extensively from Larson’s Workers’ Compensation Law, which stresses that in a number of jurisdictions, employment-related activities are divided into two groups: (1) actual performance of the direct duties of the job, and (2) incidental activities such as seeking personal comfort, going and coming, engaging in recreation, and the like. According to Larson, the former are always within the course of employment, regardless of method chosen—even, in fact, if the method is a prohibited one. These acts simply cannot help being part of the employment, no matter how they are done, because they are the very essence of the work to be accomplished. On the other hand, the incidental acts have no such necessary status as part of the employment. “They have to fight for their position and be prepared to prove themselves incidents of the work.” Adopting that argument, the majority of the Court held that in jaywalking and failing to yield to an oncoming vehicle, the bank employee “voluntarily exposed herself to a hazard so completely outside those normally encountered” as to negate any authority the bank had over her.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

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See US Bank Home Mortgage v. Schrecker, 2014 Ky. LEXIS 617 (Dec. 18, 2014) [2014 Ky. LEXIS 617 (Dec. 18, 2014)]

See generally Larson’s Workers’ Compensation Law, § 21.08 [21.08]

For a more detailed discussion of the case, see http://www.workcompwriter.com/kentucky-high-court-splits-in-case-involving-personal-comfort-doctrine/

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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