GQ Corner

Q: The claimant alleges that he sustained an injury while eating lunch. He was off the clock at a restaurant of his own choosing several miles away from the premises of the employer when the claimed injury occurred. Would this be compensable under the “personal comfort and convenience” doctrine?

A: While compensability issues of this type are very fact-intensive and are to be decided on a case-by-case basis considering the totality of the relevant circumstances, the Appeals Panel has held that the personal comfort and convenience doctrine does not apply to the situation described above. Specifically, it emphasized in APD 110263 as follows:

The personal comfort doctrine is a narrowly drawn exception to the general rule that the accomplishment of personal work or objectives is not within course and scope . . . Larson discussed the lunch time on the premises exception and notes that generally special or exceptional circumstances are needed to bring an off premises lunch period within course and scope. The personal comfort doctrine would not normally apply if the claimant was involved during a normal lunch break where he chose to leave the premises and have lunch where he pleased.

Q: The claimant completed his work day and clocked out before sustaining an injury while ascending stairs en route to the on-premises parking garage maintained by the employer. Would the claimant be considered within the course and scope of employment even though he was done for the day and simply walking toward his car to go home?

A: Yes, the “access doctrine” places the claimant in the course and scope of employment under the above circumstances. The access doctrine is an exception to the general coming and going rule that injuries occurring while traveling to or from work are not compensable. The Texas Supreme Court set out two criteria for determining whether the access doctrine applies: (1) whether the employer has evidenced an intention that the particular access route area be used by the employee in going to and from work; and (2) whether such access route or area is so closely related to the employer’s premises as to be fairly treated as a part of the premises. Thus, where the employer contemplates that a certain “access route” will be utilized by employees in arriving to and leaving from the workplace and that pathway may be appropriately characterized as a part of the employer premises, a claimant passing through that route will be deemed within the course and scope of employment absent other facts dictating a different result.