The Nevada Supreme Court has not previously clarified how to treat an employee who travels for work and is injured while away. The question in Buma v. Providence Corp. Development is whether employees that travel for work are covered by workers’ compensation insurance and to what degree.
The analysis starts with NRS 616C.150(1) that states in order to receive workers’ compensation benefits the employee must show the injury arose out of and in the course of her employment. Is traveling for work within the course of employment? NRS 616B.612(3) states that “travel for which an employee receives wages shall,…, be deemed in the course of employment.” This means that when an employer pays for an employee to travel for work the employee is entitled workers’ compensation benefits.
The next question to be answered is for how long and what purposes are employees covered by workers’ compensation. This is where the Supreme Court in Buma start their clarification of the law. They held that “traveling employees are in the course of employment continuously during their business trips, except during distinct departures on personal errands.”
What classifies as a “distinct departure on personal errands?” The Supreme Court agrees that when travel is an essential part of employment, the risks associated with the necessity of eating, sleeping and ministering to personal needs away from home are an incident of the employment even though the employee is not actually working at the time of the injury. In Buma, the Court says, “to determine whether a traveling employee left the course of employment by distinctly departing on a personal errand, the inquiry focuses on whether the employee was (a) tending reasonably to the needs of personal comfort, or encountering hazards necessarily incidental to the travel or work; or, alternatively, (b) ‘pursuing… strictly personal amusement ventures.’” In other words, does the distinct departure on personal errands involve a personally motivated activity that takes the traveling employee on a material deviation in time or space from carrying out the trip’s employment-related objectives?
The Court said that a traveling employee is entitled to broader coverage than a nontraveling employee and agrees that traveling employees may generally tend to their reasonable recreational needs during downtime without leaving the course of employment. However, the Court does note that recreational activity that is unreasonable in light of the total circumstances of the trip may constitute a distinct departure on a personal errand.
Personal risks generally do not arise out of the employment, so the injury to the employee must be must still show the injury has its origin in a travel related risk. To assess this the Court holds that the category-based approach (is the risk an employment risk, neutral risk, or personal risk) applies to traveling employees. Remember, the Court clearly states that “risks necessitated by travel—such as those associated with eating in an airport, sleeping in a hotel, and reasonably tending to personal comforts—are deemed employment risks for traveling employees.”
In summary, this is a great case that helps clarify how to determine if an injury to a traveling employee is compensable, but it still leaves open the room for argument whether an employee was on a “distinct personal departure on a personal errand.”
The facts in Buma are interesting, the claimant in the case was required to travel to Houston for work. While in Houston, the claimant stayed at a co-workers ranch and died in an ATV accident the night before their conference. The Appeals Officer affirmed the Hearing Officer’s denial of the claim and the District Court refused the hear the Petition for Judicial Review. The Nevada Supreme Court in this case remanded the case back to the Appeals Officer to make a decision on whether the claimant in this case was on a distinct personal departure or not.