GQ Corner
Q. The claimant is a flight attendant who sustained injuries in her hotel room while on layover between flights. Would these injuries be compensable?
A. Under these circumstances, yes.
The “continuous coverage” doctrine dictates that “an employee whose work entails travel away from the employer’s premises [is] in the course of his employment when the injury has its origin in a risk created by the necessity of sleeping or eating away from home, except when a distinct departure on a personal errand is shown.” Shelton v. Standard Ins. Co., 389 S.W.2d 290, 293 (Tex. 1965). Since the evidence in this case does not establish a “distinct departure on a personal errand” and the claimant was instead simply injured in her hotel room while on layover, she would be deemed to be in the course and scope of her employment and the injuries at issue would be compensable. The Appeals Panel has previously held that injuries sustained by a flight attendant in her hotel room while on layover between flights were compensable because the job necessitated staying in the hotel room and the claimant had to make herself available to the employer in the event of a schedule change. APD 980924.
Q. The claimant, a police officer, sustained injuries while working out in the gym on his employer’s premises before his shift was scheduled to begin. The employer does not have a formal policy requiring its employees to exercise on-site or otherwise, but it highly encourages them to do so for purposes of achieving optimal job performance. Furthermore, the employer affords each employee one hour of paid workout time per 24-hour shift. Based on the above, would the claimed injuries be compensable?
A. Under these circumstances, yes.
Generally, an injury is not compensable if it arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the claimant’s work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employer. See Texas Labor Code Section 406.032(1)(D).
Such an injury is compensable if any or all of the following criteria are satisfied:
(1) participation in the activity is expressly or impliedly required by the employer; or
(2) the employer derives some benefit from the activity, other than the health or morale of the IW; or
(3) where the injury takes place at the place or immediate vicinity of employment while the claimant is required to hold himself or herself in readiness for work, and the activity takes place with the employer’s express or implied permission.
Mersch v. Zurich Insurance Co., 781 S.W.2d 447 (Tex. App.-Fort Worth 1989, writ den’d).
As noted above, if the claimant establishes that any one of the above three factors was present at the time of the injury, the injury is compensable. APD 000062. Whether the claimed injury is compensable under one of the three factors is a question of fact for the Hearing Officer to resolve. APD 971330.
Based on the information provided above, it appears that some or all of the Mersch criteria are satisfied. Specifically, even if not expressly or even impliedly required by formal policy or otherwise, the employer derives a benefit from the exercise of its employees beyond their mere health or morale. Furthermore, the injury occurred on the employer’s premises with its express or implied permission, as evidenced by the allowance of one paid hour of workout time per shift. For these reasons, the injury would likely be deemed compensable under these facts.