By: Kevin L. Connors, Esquire


Universal throughout workers’ compensation statutes, the personal comfort doctrine is a real, and sometimes amusingly interesting, result-oriented principle ubiquitous in workers’ compensation decisions and rulings, at times testing the boundaries of compensability, as employees attending to personal needs, for comfort or sustenance, to include work-time breaks for eating, drinking, using the restroom, smoking, or otherwise seeking relief from discomfort, sustain injuries for which compensation is then sought.

It is necessity’s offspring, recognizing the need for both rest and refreshment, with its genesis spawned by the policy consideration that “the real reason (for the personal comfort doctrine) is that a working man must live and recognizing this, the employer has provided both physical conveniences and their opportunity for their use.  Modern industry conditions provide the real basis for compensation and should be recognized.  The Personal Comfort Doctrine, (1960 Wis. L. Rev. 91, 92).

Simply stated, the personal comfort doctrine judicially justifies that certain on-the-job acts of personal comfort are “necessarily contemplated” to be incidental to the employment itself, blanketing any inevitably attendant danger with compensability.  This doctrine, by its very definition, incorporates a certain element of foreseeability as to compensability, as it marries an accidental work injury with a necessary personal comfort.

In the eloquently-sculpted analysis of Professor Larson, the general rule concerning the personal comfort doctrine can be thought of as follows:

“Employees, who within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or, unless, in some jurisdictions, the method is so unusual and unreasonable that the conduct cannot be considered an incident of the employment”.

See 2 A. and L. Larson, Larson’s Workers’ Compensation Law § 21 (2002).

And the most common personal comfort situations involve work breaks around food, drinking, smoking, hygiene and toiletry functions, and fashion statements involving clothing. 

            A.        General Rule:

The general rule, almost universally applicable, subject to distinct jurisdictional relevance, is that injuries occurring in the course and scope of employment, while furthering the interests of the employer, are considered to be work-related and, therefore, compensable, with workers’ compensation statutes providing for compensation benefits that will include lost wages, and payment of reasonable, necessary and related medical care expenses. 

No less true, courts analyzing personal comfort cases are oftentimes forced to distinguish between a brief, or minor detour or deviation, as opposed to situations where the activity resulting in injury is one that must be characterized as having broken or severed the chain of what is considered to be the course and scope of employment, necessitating a factual/legal analysis as to whether the injury occurred during an activity incidental to employment, being one that benefits the employer by improving employee efficiency, as opposed to one where the converse was true. 

            B.        Personal Comfort Awards in Pennsylvania:

The following are Pennsylvania personal comfort cases where benefits were awarded, with compensability being established:

Employee injured in motor vehicle accident after stopping for dinner with co-employees while traveling from a construction site to obtain supplies and drop off a co-worker was found to be a compensable injury under the Pennsylvania Workers’ Compensation Act (Employer’s Mutual v. Boiler Correction and Repair, 964 A.2d 381 (Pa. Super. 2008).

Employee working from an employer-approved home office, was awarded workers’ compensation benefits, when she fell down the stairs, in route to the bathroom, for personal comfort (Verizon Pennsylvania v. WCAB, 900 A.2d 440 (Pa.  Cmwlth. 2006).

Workers’ compensation benefits were awarded when an employee, while completing a furniture delivery to a residence, sustained a traumatic brain injury, while attempting to jump up and touch a basketball rim on the property, with the Pennsylvania Commonwealth Court finding that “intervals of leisure activity during the work day are deemed inconsequential departures from the act of delivering furniture for the employer” (Baby’s Room v. WCAB, 860 A.2d 200 (Pa. Cmwlth. 2004).

A momentary departure from working, to use a bathroom facility, did not remove the employee from the course of employment.  (Montgomery Hospital v. WCAB, 793 A.2d 182 (Pa. Cmwlth. 2002).

In Carroll v. WCAB, 750 A.2d 938 (Pa.  Cmwlth. 2000), the employee was awarded workers’ compensation benefits for loss of use of an eye, resulting from a detached retina caused by the employee attempting to suppress a sneeze, to avoid spreading germs to co-employees during a business meeting.

In City of Harrisburg v. WCAB, 616 A.2d 1369 (Pa. 1992), the Pennsylvania Supreme Court found that a police officer who shot himself while cleaning his weapon at home was in the course and scope of employment, as the police officer had no place to store his weapon at work, and the Court ruled that a work activity performed at home is not per se outside the course and scope of employment.

In Kovalchik Salvage v. WCAB, 519 A.2d 543 (Pa. Cmwlth. 1986), an employee, killed in a head-on collision driving a company car, in route to his home, after stopping for drinks and then taking co-employees home, was found to have sustained compensable fatal injuries, with workers’ compensation benefits being awarded.

In De’Agata National v. WCAB, 479 A.2d 98 (Pa. 1984), an employee entering a luncheonette, to purchase a cup of coffee, was found to have sustained compensable injuries, when shot in the head and abdomen.

Shockingly, an employee, who was shot and killed, after stopping his truck along a roadway in order to relieve himself, was found to have sustained work-related injuries, in the course and scope of employment, by the Pennsylvania Commonwealth Court in WCAB v. Borough of Plum, 340 A.2d 637 (Pa. Cmwlth. 1975).

            C.        Personal Comfort Awards in Other Jurisdictions:

In Utah, its Court of Appeals affirmed an award of workers’ compensation benefits to an injured worker, notwithstanding the fact that the worker had been terminated, after the worker had returned-to-work in a light-duty position, following the employee’s work injury, with the employee having been terminated by the employer for sending pornographic images to other employee’s cell phones, over a company e-mail account. 

Bizarrely, the Utah Court rejected the employer’s argument that light-duty work    continued to be available to the employee, and that the employee’s termination for cause should have been characterized as a constructive refusal of available light-duty work, due to the employee’s improper activities.

An Illinois “smoke break” case is illustrative of break-time accidents, as this case involved an employee taking a break to smoke a cigarette, with the employer having a designated smoking area on the floor below where the employee worked, and there was only one stairway connecting where the employee worked to the employer’s designated smoking area; in route to the smoking area, the employee fell, and was injured, with the Illinois Court finding that the injury was compensable, as it fell within the personal comfort doctrine, as the employee’s injury was connected to their employment, the employee was not doing anything unreasonable or dangerous when injured, with the employer being in control of the premises, through designation of the smoking area.

In Levine v. People’s Broadcasting, decided in 1965, the West Virginia Supreme Court held that an employee who was attempting to raise himself from a toilet seat by leaning on a wash basin, who was injured when a pipe broke, was found to have been acting within the course and scope of his employment, with workers’ compensation benefits awarded, as the Court held “that an employee is within the scope of his employment as provided by the Act when he is administering to his own health and comfort if that be reasonably necessary to his employment, citing to Archibald v. Workmen’s Compensation Commissioner (decided in 1916). 

Moreover, the West Virginia Court noted that an employee is “acting within the    course of his employment when he is engaged in doing, for his master, either the act consciously and specifically directed or any act which can fairly and reasonable be deemed to be an ordinary and natural incident or attribute of that act or a natural, direct, or logical result of it.  If in doing such act, the servant acts negligently, that is negligence within the course of the employment”.

Most employers might think that this was a pretty crappy result!

In Illinois, an employee who was injured attempting to dislodge a bag of Fritos stuck in a vending machine on the employer’s premises was found to have sustained a compensable and work-related injury, notwithstanding the chips having been purchased by a co-worker, such that the employee seeking to retrieve the bag of chips was not doing so for his own consumption. 

The Illinois Commission applied the personal comfort doctrine, in awarding workers’ compensation benefits. 

This ruling survived appeal, with the Illinois Appellate Court affirming the lower commission’s award of workers’ compensation benefits, as the Court found that the employee’s actions tracked a line of “scope of employment” cases, expanding coverage to employees acting to aid others in emergency situations, although the Court impolitely noted that “what the instant case lacks in urgency, it makes up for in familiarity and collegiality”. 

Essentially, the workers’ compensation award survived the employer’s appeal, as the appellate court concluded that the Commission could have reasonably concluded that the employee’s manner of assisting the Frito-purchasing employee did not necessarily cross the line of employment, potentially barring the award of benefits for the Frito-saving employee.

See Circuit City Stores v. Illinois Workers’ Comp. (7/9/09).

The Washington Supreme Court, in Ball Foster Glass v. Giovanelli, upheld an award of workers’ compensation benefits to an traveling employee, who regularly traveled around the country rebuilding and fixing furnaces for his employer, when he, on assignment to a company plant in Seattle, was injured on his day off, as he was headed to a park with his supervisor to go to a concert; on crossing a street in front of the hotel, he was struck by a motor vehicle, and was seriously injured. 

The employer appealed the award of workers’ compensation benefits, on grounds that the employee had not been engaged in a recreational activity that had any business purpose behind it. 

Upholding the compensability of the employee’s injuries, the Court relied upon the “commercial traveler rule” or the “continuous coverage rule”, which is a rule that holds that a traveling employee is considered to be in the course of employment during his or her entire trip, except for a “distinct departure on a personal errand”. 

Holding that distinguishing between reasonable personal administrations and purely personal amusement adventures can be difficult, the Washington Supreme Court nevertheless found that compensation courts have routinely had little difficulty denying compensation benefits for unusual or unreasonable activity, such as the denial of compensation benefits for a Florida employee injured during a skiing trip, at a resort 50 miles away from the hotel that the employee had been staying in. 

Although the employer in Foster argued that the employee’s activity was a deviation from his employment, and that his actions in crossing a highway without a right of way was an “inherently dangerous” activity, the Washington Supreme Court rebuked that argument, citing to the personal comfort doctrine as follows:

“The scope of activities covered by the personal comfort doctrine depends on the particular circumstances of employment.  A traveling employee is entitled to broader coverage than a non-traveling employee because a traveling employee is in a significantly different position of risk than a non-traveling employee.  The non-traveling employee may satisfy his personal needs without leaving the comfort of home.  In contrast, the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise”.

In Vermont, workers’ compensation benefits were awarded to an employee who was injured during lunch, while shooting off bottle rockets, with the Vermont Court finding that the injury did fall within the scope of the personal comfort doctrine.  See, Notte v. Rutland, 112 Vt. 498 (1942).

In Georgia, a Claimant was awarded workers’ compensation benefits, when she injured her knee, as she bent over to pick up a pill off the floor.  The Claimant was 300 lbs., and her knee buckled, causing her to fall, when she bent over to get the pill.  The employer presented evidence that the employee’s knee buckled because of an idiopathic condition.  However, the Georgia Court awarded workers’ compensation benefits, finding the claim to have been compensable based on the personal comfort doctrine, as the employee’s job was that of a custodian, sometimes requiring her to pick items off the floor.

In granting compensation benefits, the Court compared this fact scenario with cases where employees were injured when getting food and drink, or using a restroom, while working.

See Harris v. Peach County Board, 674 S.E. 2ND 36 (2/11/09).

In Liberty Northwest Insurance v. Nichols, when a 6 Or App 664 (2003), an employee who broke his tooth while eating an employer-supplied piece of candy was awarded workers’ compensation benefits, overcoming the employer’s defense that the Claimant’s injury had not occurred within the course and scope of employment, as the Oregon Board found that the employee’s injury occurred as he was “eating while working”, and that the employee had not been engaged in personal recreational or social activities.

In Thompson v. Keller Foundations, benefits were awarded to a Florida employee, a construction worker, who was injured in an accident that occurred as he was driving home from work, after stopping at a bar to shoot pool with co-workers.  The claim was initially denied by the insurance carrier, as well as by the workers’ compensation judge, but the appeals court reversed the denial of compensation benefits, finding that the employee’s injuries were indeed incidental to employment.

This case is illustrative, as the injured employee was traveling for business.  Although travel to and from work is typically not compensable under the “coming and going” rule, Courts take a more inclusive approach in evaluating injuries, when an employee is traveling overnight for business.

In reversing the lower court decision, the Florida Court stated:

“A traveling employee is deemed to be in the continuous conduct of his employer’s business including those times when he is not actually at work but is engaged in … normal and necessary activities.  Thus, so long as a traveling employee’s injury arises out of a risk which is reasonably incidental to the conditions of employment, the injury will be compensable.  Although the appellant may have been engaged in amusement activities immediately prior to the accident, the JCC did not make any findings sufficient to conclude that the traveling construction worker was not attending to a normal creature comfort and a reasonable necessity – driving to dinner – when his injuries were sustained.”

This case illustrates the inclusive 24/7 nature of overnight business travel, in terms of compensability.

In Washington, workers’ compensation benefits were awarded to an employee, in Dial v. Taplett Fruit Co., when the employee was injured, as she was walking to her car, during a morning rest break, to smoke a cigarette.  As a result of falling, she sustained a low back injury, with the employer denying the claim, on grounds that the employee was not furthering the employer’s business interests when she was injured.  Telling, the employer did allow its employees to smoke in their cars during their rest breaks.

The Washington Court concluded that the employee had not left the course of her employment, as she was engaged in a “personal comfort that was reasonably incidental to her employment”.  So concluding, compensation benefits were awarded to the employee.

In Cooper v. Barnickel Enterprises, the New Jersey Superior Court awarded workers’ compensation benefits to an employee, who was injured while using a company vehicle, that he was using to drive to get coffee.  The employee was a master plumber and foreman.  He had driven to a job location, to discuss the job details.  Arriving at the jobsite, the person that he needed to talk was not available, and would not be so for almost 45 minutes.   The employee decided to drive to a deli about 5 miles away, to get some coffee.

In route to the deli, the employee was injured in a motor vehicle accident, sustaining several injuries, resulting in the New Jersey Division of Workers’ Compensation awarding workers’ compensation benefits to the employee.  In awarding benefits, the Court found that the employee had been “engaged in exactly the kind of brief activity which if embarked on by an inside employee working under set time and place limitations, would be compensable under the personal comfort doctrine”.

And now, a pregnant pause worthy of the Australian personal comfort case that “went viral” on the Internet, being the case of the Australian public servant, who sought, was denied, and has now been awarded workers’ compensation benefits, as a result of her being injured while having sexual intercourse on a work-related business trip.

Initially, her claim was denied before the Australian Administrative Appeals Tribunal (AAAT), which denied her claim for workers’ compensation benefits, over the passionately poignant plea of her salaciously libidinous lawyer, who argued that she had sustained her injuries in the “ordinary prevue of human life”, and that she was not injured while engaged in performing any activity of gross misconduct or self-harm, her injury being no different than that of a traveling employee who might be injured while bathing or seeking sustenance, an argument countered by the employer arguing that her injuries were sustained in the course of “frolic of the applicant’s own”, during the course of a “quintessentially private activity”.

The employer argument being that “having sex is a different kettle of fish”, clearly distinguishing the “catching” from “caught”.

While the AAAT denied the Claimant’s lascivious claim, the Claimant pressed onward, appealing to the Federal Court of Australia, which, on April 19, 2012, overturned the AAAT, setting aside the Tribunal’s lecherous denial, in the course of which the Australian Court rendered 26 Findings, akin to what we refer to as Findings of Fact, followed by an additional 29 Considerations, akin to our Conclusions of Law.

In reliance upon personal comfort precedence in Australian compensation law, the Court found in favor of the employee seeking compensation for her sexual misfortune, holding as follows:

“Accordingly, it shall now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or incurs the employee to spend that interval or interlude at a particular place or in a particular way.  Furthermore, the injuries sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of misconduct taking him or outside the course of employment.”

Well, that certainly settles it!

Exactly, where do we go next?  The simple rule being, that you need not be working, to be considered “employed”.

Although true, the Australian Court went to great lengths to diffuse the splatter effect of a case like this, given that media and Internet buzz created by it, and its infinitely special ability to replicate its affect across multiple jurisdictions, as it twies to avoid being tantalized by tweetfulness.

And what might have happened, with altered facts, if the Claimant, in fact, became pregnant and/or contracted a sexually-transmitted disease, are compensation benefits actually owed to the Claimant?

The answer is, of course, “it depends”.

            D.        Denied Personal Comfort Cases in Pennsylvania

What follows are illustrations of Pennsylvania personal comfort cases where benefits were denied:

In the Department of Labor & Industry v. WCAB, 977 A.2d 585 (Pa. Cmwlth. 2009), a state employee on a paid break off of the employer’s premises, who was attending to her own personal comfort, was not awarded workers’ compensation benefits, as she was not injured in furtherance of the employer’s business or affairs.

In Graves v. WCAB, 983 A.2d 241 (Pa. Cmwlth. 2009), an off-duty Philadelphia Housing Authority patrolman who was shot in an altercation with an armed bar patron was not found to have been engaged in police action in furtherance of the employer’s business when injured.

In Brookhaven Baptist Church v. WCAB, 912 A.2d 770 (Pa.  Cmwlth. 2006), a church member and trustee, who was also paid to cut grass on the church grounds, was found to be outside the course and scope of his employment, when he was fatally burned while destroying lawn trimmings that he had gathered from pruning the shrubs.

In Wright v. WCAB, 871 A.2d 281 (Pa. Cmwlth. 2005), an employee who was struck while crossing a highway, as he attempted to retrieve personal items from his own vehicle, was denied compensation benefits, as the Court found that the employee was not required by his employment to be crossing a highway at the time of the incident. 


In Schrif v. WCAB, 658 A.2d 2 (Pa. Cmwlth. 1995), an employee who was dismantling a hoist that the employer was permitting the employee to take home to use on a personal home project, was denied workers’ compensation benefits, when he was injured while dismantling the hoist, as the employer had given the hoist to the employee as a courtesy, and the Court found that the injury had not occurred in the scope of employment, nor did it further the employer’s interests.

In Pesta v. WCAB, 621 A.2d 1221 (Pa. Cmwlth. 1993), an employee was collecting cans from the employer’s premises, intending to sell them, was not awarded fatal claim benefits, when he was fatally injured, as he crossed the street, to put the cans in a parked car.

In Habib v. WCAB, 29 A.3d 409 (Pa. Cmwlth. 2011), the Pennsylvania Commonwealth Court held that an employee, who sustained an injury to his eye, as he and other employees, all laborers, were attempting to smash a bowling ball found near the parking lot where they were working, with several employees having used the bowling ball in a shot-put challenge, after which the employees took turns trying to smash the bowling ball with a sledgehammer, with the injured employee being injured when shattering the bowling ball as a piece of the shattered ball flew into his eye. 

The workers’ compensation judge, awarded workers’ compensation benefits to the employee, finding that his actions, while careless, had not taken him outside the course and scope of employment, although the judge’s compensation award was vacated and reversed by the Pennsylvania Workers’ Compensation Appeal Board, which found that the employee had acted in violation of a positive work order, as his supervisor had told him to “knock it off”, further telling the employee that he would not take the employee to the hospital, if the employee was injured hitting the ball. 

On further appeal to the Pennsylvania Commonwealth Court, the Court held that the employee’s injury was not compensable, as it occurred while the employee was violating a positive work order, further holding that 3 requirements are necessary to bar an injury for violation of an employer work order, including:

            a)         that the injury must be caused by the violation of the work injury;

            b)         that the employee must know about the positive work order; and,

            c)         that the Order must implicate an activity not connected with the      employee’s work duties.

            E.        Personal Comfort Denials in Other Jurisdictions:

The following claims involve Courts denying personal comfort claims, finding that the injuries had not occurred within the course and scope of employment, and that the injured employees had deviated from their normal work activities:

In Indiana, a morbidly obese long-term employee, weighing over 360 lbs. was not found to have been engaged in an “activity of daily living”, when she suffered a cracked femur as she tried to get herself out of a booth in a university cafeteria, during an employee appreciation dinner.  Although she was successful in securing an award of workers’ compensation benefits from the first level factfinder, on appeal, the appellate court held that her injury was personal to her, and that there had been no increased risk created by her work environment, with the Court further observing that her pre-existing physical condition probably contributed to her injuries, and undoubtedly hampered her recovery, resulting in her injuries being found to be personal, and not work-related.

In a Florida case, in Galaida v. AutoZone (9/27/04), an employee was denied workers’ compensation benefits, when he was injured on a smoke break in the company parking lot.  Although the employer allowed employees to take smoke breaks, the employee was getting cigarettes out of his car, when a gun fell out of his car, as he opened the car door, the gun discharged, and shot him in the foot.  The employee was denied workers’ compensation benefits on a deviation from course of employment theorem, which is an extension of the violation of positive work order rule, as the employer had a policy against possessing firearms on company premises.

On appeal, the appellate court held:

“The personal comfort doctrine incorporates a foreseeability element to the cause of injury.  Thus, in Holly Hill Fruit Products, 473 So. 2nd A29 (1985), an employee was injured while crossing a street to purchase cigarettes was held to have sustained a compensable injury because the “trip was a foreseeable and non-prohibited refreshment break activity, and the employer’s authority over Claimant was not significantly dissipated during the course of the trip”.

“Being exposed to a firearm, however, is not a foreseeable consequence of an authorized cigarette break, especially when the possession of a firearm is strictly prohibited by the employer.  Moreover, Galaida’s possession of a firearm, in violation of his employer’s policy, was not conducive to the employer’s interests.  Thus, he should not benefit from the doctrine.”

The Oregon Supreme Court in  Roberts v. SAIF, 341 Or 48 (2006) denied workers’ compensation benefits to an employee who was injured while riding a motorcycle around the lot of his employer’s car dealership, with the Oregon Court finding that the employee’s injury was not compensable or work-related, applying the following analysis:

“Texturally ORS 656.005(7)(b)(B) raises three questions.  The first is whether the worker was engaged in or performing a “recreational or social activity”.  The second is whether the worker incurred the injury “while engaging in or performing, or as a result of engaging in or performing,” that activity. The final question is whether the work engaged in or performed the activity “primarily for the worker’s personal pleasure” if the answer to all of these questions is “yes”, then the worker cannot recover”.

The Oregon Supreme Court distinguished between activities performed for personal pleasure as opposed to activities performed for personal comfort.

            F.         The Smoking Duck:

That’s right, a smoking duck is a loaded fowl.

So, you as the benevolent employer, must balance stockholder demands against employee retention and productivity.

So what are you looking for, when a claim is reported to you, that seems to fall along the fault lines of personal comfort?

Well, from a practical and pragmatic perspective, it is axiomatic that the doctrine of common sense, not always applicable in a no-fault compensation system, be applied, as otherwise logic and reason fall prey to the collusive dark ages of intellectual chaos.  The relevant analytical template begins with a description of the activity in question, to include lunch breaks, on and off premises, supplied or not by the employer, drinking, smoking, use of toilet facilities, washing hands, changing clothes, and seeking relief from heat, cold, or discomfort, not to include the supervisor’s baneful eye. 

Garnish the described activity in question with its time, location and purpose, to determine if, during work hours, after work hours, on your premises, off your premises, during some type of employment-related trip or travel, considering its purpose, the catch all being, was the activity under the compensation microscope advancing your business interests.

Then grab your trusty employee handbook, check the described activity in question against permissive and non-permissive stuff.  Did you give permission for the activity, or does it violate a work or safety order?

II.        LOOSE ENDS:

Compensability is in the eye of the judge;

It is a doctrine as ancient as workers’ compensation law;

Universally, it is a doctrine based on decisional authority, untethered to any statutory provisions;

Telecommunications expand the scope of both personal comfort and personal discomfort, requiring an intense analysis by the employer as to whether the injury occurred within the course and scope of employment, whether the injury fell within the employee’s job description, whether it occurred in furtherance of the employer’s business interests;

This doctrine is intended to balance the personal needs of the employee against the business interests of the employer, so plan accordingly.

ConnorsO’Dell LLC

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