GQ Corner

Q:  I have a claimant who clocked out for the day but sustained injuries while traversing the hallway en route to meet up with a co-worker on her way out so that the two could leave together. Would these injuries be compensable?

A:  Yes, the claimed injuries are probably compensable under these circumstances. The “access doctrine” provides that injuries that occur while going to or coming from the place of employment are not compensable. The test for determining whether the access doctrine applies is set out in Texas Workers’ Compensation Insurance Company v. Matthews, 519 S.W.2d 630 (Tex. 1974). The test has two parts:

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.

The courts and the Appeals Panel have held that an injury occurs within the course and scope of employment where the claimant is injured while passing to or from work by a way over the employer’s premises with the express or implied consent of the employer. See Standard Fire Ins. Co. v. Rodriguez, 645 S.W.2d 534 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.); see also APD 950156, 021369. Ultimately, these inquiries are ones of fact for the Hearing Officer to resolve. APD 040159. However, it would appear in your case that (1) the employer evidence an intention that the particular access route area be used by employees in coming to and leaving from work; and (2) the access route or area at issue is on the employer’s premises. Consequently, the claimed injuries would likely be deemed compensable.

Q: The claimant was receiving partial temporary income benefits (TIBS) while working decreased hours and earning decreased wages under work restrictions imposed by the treating doctor when she voluntarily resigned from her employment and ceased earning wages altogether. May I suspend all TIBS due to her voluntary termination of the employment relationship?

A. No. The claimant would still be presumed disabled and entitled to TIBS (as she was prior to her resignation) absent a material change in her condition as to warrant a change in disability status. However, there is support for the proposition that you may continue to pay only partial TIBS (as before) absent such a change or attainment of MMI. This is based on the argument that the claimant voluntarily forfeited pre-injury wages available to her for reasons unrelated to the compensable injury, and therefore she is not entitled to TIBS attributable to that loss of wages.