Nebraska Workers’ Compensation Refresher: “Arising Out Of and In the Course Of Employment.”

If an employment relationship exits and there is an accident, it must be determined if the accident occurred within the scope of the employment relationship. Under Neb. Rev. Stat. § 48-101 in order to receive compensation an employee must establish that the accident (1) arose out of and (2) was in the course of his or her employment. The phrase arising out of, as used in § 48-101, describes the accident and its origin, cause and character, i.e. whether it resulted from the risks arising within the scope of the employee’s job. Parks v. Marsden Bldg. Maint., L.L.C., 19 Neb. App. 762, 773, 811 N.W.2d 306, 316 (2012). The phrase in the course of, as used in §48-101 refers to the time, place and circumstances surrounding the accident, i.e. it demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment. Id. at 275-76.

While injuries on an employer’s premises during work are generally considered to arise out of and be in the course of employment, questions arise with regard to injuries that occur while an employee is away from the employer’s premises or is driving to or from work.

In Misek v. CNG Financial the Nebraska Supreme Court was faced with such a question, where an employee was injured while walking to a convenience store to purchase soft drinks for herself as well as her co-workers and supervisors. 265 Neb. 837, 660 N.W.2d 495 (2003). The Nebraska Supreme Court found that even though the incident did not occur on the employer’s premises, the employee was entitled to workers’ compensation benefits. Since soft drinks were not available on site, the Court found that the employee was indulging in a matter of personal convenience and comfort that she would be expected to indulge in, and since she obtained permission from her supervisor, the accident and injury arose out of and was in the course of her employment. The exception created by the Supreme Court is referred to as the personal convenience exception and has been applied to situations where the employee has left the employer’s premises to obtain food or drink so long as the employee is not acting in conflict with specific instructions from the employer.

Another exception for injuries occurring away from an employer’s premises is provided for commercial travelers. Where an employee, in the performance of his or her duties, is required to travel and an accident occurs while he or she is so engaged, the accident arises out of and in the course of his or her employment and is within the scope of the Nebraska Workers’ Compensation Act. Torres v. Aulick Leasing, Inc., 261 Neb. 1016, 1024, 628 N.W.2d 212, 219 (2001). A commercial traveler is regarded as acting in the course of his or her employment during the entire period of travel on the employer’s business. Id. The mission of the employer must be the major factor in the journey or movement and not merely incidental. Id. As a result, where an employee is injured during business travel, even when they are eating or sleeping in a hotel, the injury is found to arise out of and be in the course of his or her employment under the commercial traveler doctrine.

While these two cases provide examples of situations where an employee’s accident away from his or hers employer’s premises can be found to arise out of and be in the course of their employment, they are not the only situations where an offsite injury will be found compensable. For information regarding additional exceptions or questions regarding whether an accident arises out of and in the course of employment, please contact Nebraska Workers’ Compensation attorney Thomas Shires at TShiresbaylorevnen.com at 402.475.1075.