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Covered by WC on lunch break? New Jersey

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  • Covered by WC on lunch break? New Jersey

    I know that when an employee uses his/her own vehicle to drive from one work site to another, and they are in an accident, it is covered by our Worker's Comp. And I think (yet not completely sure, since I'm not in HR) that if they are in an accident on their lunch break, they are not covered by Worker's Comp.

    However, our company provides paid lunch breaks. So employee was on the clock, but not doing anything work-related, and was in a motor vehicle accident.

    Is he covered by WC?

    My role is tracking and reporting all our risk mgmt data, and this came up under my list of employee injuries. But this one was not work-related. EE is trying to make a WC claim, HR assistant is saying it's not covered by WC because he was on lunch. There's no doubt that he was on lunch, because his collision was with a stationary object--the actual restaurant! Yep, crashed into the actual building, just missing people dining at a table, but they were hit by broken glass from the restaurant window. Employee is reporting neck pain but is okay.

  • #2
    Here's one article I found:
    http://www.shebell.com/tag/workers-c...ttorney-in-nj/
    "...Lunch breaks — Usually, injuries or illnesses that occur during an employee’s lunch break are not covered by workers’ compensation. So, if you tripped and fell while walking into a restaurant to pick up lunch, you probably cannot recover workers’ compensation for that injury. However, if you were injured while picking up lunch for your boss or injured at the company cafeteria, then you might be covered...."

    And this is from the viewpoint of a WC attorney in NJ.

    But it is not always a cut and dried answer. You might check with your carrier. But from a personal perspective, I would expect his car insurance to take care of any accidents and injuries stemming from it.

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    • #3
      Thanks. I just wanted to make sure the ee wouldn't have grounds to later complain about the HR person who would not categorize it as WC.
      Definitely at lunch, and the lunch was not a work related event and he was not picking up lunch for a supervisor.

      This is out of the realm of WC, but I also wanted to make sure the people who were cut by broken glass would not have grounds to sue my company. They could sue the employee, but since he was not acting as an agent of our company at the time, I wanted to be assured that they couldn't sue us. I know anyone can sue for anything, but I hope we will successfully fight such a suit if it should happen.
      I guess their injuries would first be covered by the restaurant's insurance, which would then go through subrogation after the ee's car insurance. I just don't want my company to be in that line.

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      • #4
        I honestly don't think you would have any liability unless he was there fulfilling some part of his employment duties. And I am usually one who can pick out the smallest liability, but I don't see any here.

        But you are correct, anyone can file a lawsuit for just about any reason.

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        • #5
          A personal injury lawyer working on contingent fee is not likely to take that case against you. I would not worry about that.
          Bob Bollinger, Attorney
          Board Certified Specialist in NC Workers' Compensation Law
          Charlotte, NC

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          • #6
            I agree it shouldn't be covered but a similar claim in my state was. Our WCC is divided as to whether the job was the reason the person was at increased risk. I don't see how this one could be covered even under the most liberal standard but I'd always file it and let the carrier deny. The cost of those high premiums is that they sometimes have to be the bad guy.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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            • #7
              At my last job I had an employee injure himself while on the clock. However he was messing around driving his personal motorcycle on the lot (his boss was on vacation). He was seriously injured and had to be med flighted to Boston. I reported it to worker's comp and it was denied. The denial was based on the fact that while he was punched in, he was not doing anything to benefit the company.

              So we won the claim but ended up having to pay a lot to repair the 2 luxury cars he hit.

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              • #8
                Our lunch policy is that they are paid provided the ee stays on company premises. If they choose to leave the premises for lunch, they punch out.

                It was put into place for precisely this scenario.

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                • #9
                  Horseplay is a reason to deny in every single state. It doesn't matter if they are on or off the clock. It is like deliberate acts.

                  One case in my state where the off the clock accident was covered, an employee on break and walked across the non-employer owned parking lot of the business park, to get to a fast food restaurant. She tripped on the curb or a crack in the asphalt and fell. The very liberal Commissioner bought the argument that she would not have been in that parking lot, but for her employment, even though she was doing nothing work related and it wasn't the employer's property. Same state, different Commissioner, I had a claim denied where an employee was in a minor single car accident doing the exact same thing. Take away: file it in case the employee later challenges the denial so your bases are covered.
                  I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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