Deviation Injuries: A 60-Second Seminar in Workers’ Compensation Claims Handling

It is common for employees to be injured when commuting on company business, and transportation injuries are typically deemed to be within the course and scope of employment.  However, an exception exists if the accident occurs during what’s known under the law as a “deviation,” but many claims’ professionals may be surprised to learn that not every deviation results in non-compensability.  Only “material” deviations trigger the exception. 

By way of example, presume an employee is walking to a nearby business appointment.  While proceeding down a sidewalk the worker decides to continue their journey on the opposite side of the street, perhaps to observe a display window along the route.  Should the worker be injured while crossing the street, such deviation would not be regarded as material.  It is only an incidental deviation, and the injury is still compensable.  On the other hand, should the employee deviate several blocks to visit a friend, an injury occurring during such deviation would most likely be construed as material in nature, and thus, non-compensable.  Now to add a twist: once an employee completes a material deviation and returns to their regular route then any injury occurring thereafter is now once again compensable.  It certainly can get confusing.

Sometimes accidents occur while enroute to/from a medical appointment as an injured worker obtains treatment for an existing industrial injury.  Any injury from a subsequent accident is a consequence of the original work injury, and thus compensable.  However, the claims administrator must first analyze the situation and investigate two issues before making a compensability determination.  The two issues to be examined are location and time:

Location:  Is the accident scene located on a reasonable route to/from the medical appointment?  It need not necessarily be located on the most direct route as traffic patterns, street congestion, lane closures and construction work may result in an alternate route being preferable.  However, if the accident location is several blocks or miles from a reasonable route, chances are that a material deviation has occurred.

Time:  Is the time of accident reasonably associated with the medical appointment?  If for example the medical appointment is scheduled for 2:30 p.m., and located only a mile from the employee’s residence, an accident occurring at 9:30 a.m., most likely is unrelated to the appointment, even if it occurred along the route to the doctor’s office.  Because the time element is unreasonable, the injury most likely is unrelated to the medical appointment and therefore, non-compensable.

If either of the two criteria (location and time) indicate non-compensability, the employer should raise AOE/COE as a defense.  Produce evidence of the unreasonableness of either the location or time in support of the non-compensability decision.  The burden of proof then shifts to the injured worker to prove otherwise.

These matters can get rather complicated and expensive if not handled correctly.  Should you need assistance please feel free to reach out to the experts at F+B.