Monday, December 17, 2012

Are sex-injuries on a business trip compensable?

An Australian woman travelling on business and injured during sex, has finally won workers’ compensation benefits.  The interesting part of this is not the tawdry details (although I am as curious as the next guy how the light fixture got dislodged and landed on her face…), but rather the temporal and moral dimension of the case.

Workers’ compensation is designed to compensate injuries that arise out of and occur in the course of employment. Often the arises-and-occurs test is easy to apply: if you trip on a pallet at work, fall down and break your wrist, your injury clearly arose form and occurred during the course of employment.

Other times, this test is trickier to apply. Consider positional risk: if you are bitten by a cobra while walking through a park for a work purpose (maybe you empty garbage cans), the injury still arose and occurred even though everyone in the park was at risk of (the admittedly odd-ball) snake bite. Coverage occurs because, but for the employment, you would not have been in the park. 

Things get more interesting with travel. In Alberta, if you have an MVA on your way to work, it is unlikely you are covered under workers’ compensation. Unless you were performing a work-errand on your way to employment (and the, only for the duration of the errand), or travelling on an employer-controlled road or on employer-controlled transport. 

But if you are injured while “away” on an employer sanctioned trip (i.e., but for the trip, you would not have been in the hotel), are you covered? The rules in Alberta are a bit tighter than they appear to be Australia. In Alberta, you are covered during travel while fulfilling basic comfort needs, but not during recreational activities on an overnight trip. So sex injuries are likely to be deemed non-compensable.

I expect there will be a certain amount of ridicule of the Australian decision. We see similar reactions in Canada when an intoxicated worker is injured and gets compensation. This ridicule typically reflects a moral judgment (e.g., he was drunk and got what he deserved; she was loose—why should she get compensation?).

The purpose of workers’ compensation is not, however, to moralize. Rather, it is to award compensation within the rules set out by the WCB (whatever you may think of those rules). Should there be criminal activity (e.g., impaired driving), that is resolved via the criminal system, not via workers compensation. Otherwise, workers’ compensation should be blind to the moral dimensions of the injury.

-- Bob Barnetson

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