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Workers' Compensation

Kangaroo Court: How Would Delaware Handle the Australian Hotel Sex Romp Case?

Today we are going to talk about the goings on elsewhere in the wacky world of comp. It is oddly appropriate that the week I joined the Linked In Work Comp Analysis Group, I stepped into the midst of a case that has garnered national attention.  I would also direct you also to Robert Wilson's Workers Compensation Roundtable Group on Linked In.  Bob has a spirited wit that gives Sassy Cassy a real run for her money.  These two Linked In comp groups provide a wonderful forum for varying perspectives on issues of concern to us all.  Which brings us to what Bob Wilson has referred to as "The Blunder down Under".......

What exactly am I talking about?  Coincidentally this case was brought to my attention by local comp defense attorney Cheryl Ward.  Here is what Cheryl had to say:

"A worker's romp has turned into workers' comp for an Aussie government employee who got frisky -- and then injured -- during an overnight business trip. The woman and her male companion were apparently "going hard"[think head bumping into the wall] when a glass light fixture fell off the motel wall, causing her injuries. The claim was initially rejected but has been overruled by Australia's Federal Court, which says the injury happened "in the course of her employment." Justice John Nicholas said she'd be entitled to workers' comp if she'd been hurt playing cards in her room and that her in flagrante delicto injury deserved the same treatment."

Tim Lengkeek (who initially thought the injured worker was a prostitute) also weighed in:

"Looks like she actually won--- gives new meaning to the portal to portal rule!"

And that brings me to the meat of our discussion - if this happened in Delaware, would it be compensable?  I have located two Delaware IAB rulings loosely on point, although neither one involves injury sustained during sexual escapades.  One of them I have blogged about before [When Irish Eyes are Smiling, dated 5/3/10].

Case #1 Bernadette Montgomery v. Aventis Pharmaceuticals, IAB# 1194543 (12/26/01) The issue was whether the injured worker was in course and scope at the time of injury or running a personal errand, as argued by the employer.  Claimant was attending a three-day conference in Puerto Rico.  Following a dinner with co-employees during which work concerns were discussed, Claimant stopped off in the hotel gift shop to purchase Advil and a pair of sandals.  There was a collateral issue as to whether the need for the sandals was related to a certain dress code for this trip, given that Claimant was in the presence of several Aventis clients.  Claimant purchased the sandals, brought them back to her hotel room, discovered one sandal was missing from the box and injured herself by running into a glass partition on her way back to the gift shop.

The Board applied the "going and coming rule" but then referred to the exception for special errands, on-call employees, and employees who are paid for their time while travelling.  The Board also cited the "personal comfort doctrine."  Here is what our IAB (which awarded benefits) stated in resolving the issue:

"The Board finds Claimant's purchase of the sandals in the gift shop was not such a deviation from her work activities to be considered a temporary abandonment of her employment......The evidence showed Claimant was working practically 100% of the time she was in Puerto Rico....Clearly, Aventis benefitted from Claimant's working in her room after hours. Although Claimant's trip to the gift shop was not in furtherance of Aventis' business, she purchased the sandals so she would be dressed appropriately under Aventis' dress code."

Of note, there is no discussion of the "portal to portal rule."

Case #2 Felicia Morinelli v. Blue Cross Blue Shield of DE, IAB# 1335306 (4/13/10) In this case Claimant attended a four-day sales conference in Ireland arranged by a third-party vendor of her employer, Blue Cross Blue Shield of Delaware.  She was injured when she fell down a flight of stairs alighting from the airplane.  Employer argues that this injury was not in course and scope given that the conference was arranged by a third party.  Significant, the Board stated that

"Had Claimant participated in any personal or pleasure activities, the Board believes that the doctrine of dual purpose, as set forth in Karl-Mil, Inc. v. Frances Storm, Del. Super., CA #81A-De-11, Christie, J., (October 14, 1982 ) affirmed Storm v. Karl-Mil, Inc. 460 A. 2d 519 (Del. 1983) would the apply to determine the legal result under such changed circumstances.  In the alternative, even if the travel to Ireland itself is construed as constituting a pleasure purpose in this case, when applying the "dual purpose" doctrine to the evidence presented, the Board can reach no other conclusion than that the trip was entirely for business purposes relating to the marketing of insurance products as BCBS."

I learned a little something preparing this post. I had thought that the First State followed the "portal to portal rule". And was concerned that if the events of the Australia case had occurred here, it might be compensable. What I take from these two cases above is the following.

   Rough and ready sexual activity would likely not be embraced by the Delaware IAB as an act of "personal comfort"
   It appears we follow "the dual purpose doctrine" in terms of whether the trip itself is in course and scope
   Based on the Montgomery v. Aventis Pharmaceuticals , one would assume the employer would have a "deviation" defense with the further observation that it would be tough to argue that any aspect of the events leading to injury were in furtherance of the employer's business"

Should there be any question that sexual intercourse constitutes "job abandonment".....unless you are a prostitute?

Parting thought-- We are all born naked and screaming and if you are lucky that sort of thing won't stop there.  Hopefully without producing a closed head injury.

Sassy Cassy

Delaware Detour & Frolic   Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

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