July 28, 2011

Compensable Sex, Down Under?

When employees travel overnight for their employers, workers comp may expand into 24 hour coverage. Work put you on the road; comp covers you while you are working.

An unnamed (for soon to be evident reasons) woman in Australia has filed a workers comp claim for injuries incurred during sexual activity while on a business trip. She was having sex with a man (not that that matters) when a glass light fitting came away from the wall above the bed. The light struck her in the face, leaving her with injuries to her nose, mouth and a tooth, as well as "a consequent psychiatric injury". The relative positions of the man, the woman and the light are not detailed in either of two newspaper articles, one in the Sydney Morning Herald and the other in the Herald Sun.

The woman's lawyers argue that being injured while having sex "during an interval or interlude within an overall period or episode of work" was no different to being hurt while carrying out other recreational activities - some recreational activities evidently being "higher risk" than others.

Course and Scope
But Australia's ComCare, which says the woman was having sex with "an acquaintance, who had no connection with her work", will argue "neither legal authority nor common sense" could lead to a finding that the injury was sustained during the course of her employment. This implies, of course, that had the man been a work acquaintance, the injury might have been compensable. Hmmm. The devil, as always, is in the (salacious) details.

From the American litigation perspective, it might seem more logical to sue the hotel or the light manufacturer. But as Australia's comp law - unlike the American statutes - does allow compensation for pain and suffering, a liability claim might not add anything to the potential payout.

In the final analysis, this incident stands as a stark example of the dangers of mixing business and pleasure. In her expansive notion of the "course and scope of employment," the anonymous claimant has literally brought the workers comp system into the (hotel) bedroom, where it rarely resides. We await with great interest the final resolution of this intriguing case from down under.

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About this Entry

This page contains a single entry by Jon Coppelman published on July 28, 2011 10:14 AM.

Tools: video presentations on RTW, disability management & more was the previous entry in this blog.

Pennsylvania Death: Work Related, Not Compensable is the next entry in this blog.

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