To be work-related, an injury must occur while the employee is “performing service growing out of and incidental to his or her employment,” Wis. Stat. § 102.03(1)(c)1., or, as more commonly phrased, while the employee is in the course of his or her employment. The employee, not the injury, must be in the course of the employment. The Wisconsin Supreme Court favored a liberal construction of this statute so most employees at work are covered. Brienen v. Public Serv. Co., 166 Wis. 24 (1917).
The Wisconsin Supreme Court has long held that “when it is established that employees have entered upon the performance of their duties and are found at a place where they might properly be in the discharge of those duties, nothing appearing to the contrary, the presumption of continuity obtains.” Tewes v. Industrial Comm’n, 194 Wis. 489, 494 , 215 N.W. 898 (1927). So an employee who is on a coffee break or lunch break, smoking, going to the washroom, getting a drink of water or fresh air, and so forth is probably covered if he or she is on the employer’s premises. A business-related lunch off the employer’s premises was in the course of employment, however, an injury that occurred while the employee was driving to get a personal lunch off the premises was not covered as work-related, same for going to an unrelated doctor appointment.
Horseplay or fighting between co-employees may depend on the circumstances, and intoxication may still be covered but subject to a reduction in workers’ compensation benefits.
Going or coming to work is not work-related until the employee is on the employer’s premises as a general rule. So a slip and fall in the employer’s parking lot is work-related but driving on the highway to work in the morning is not, but some narrow exceptions apply.
Certain off-premises recreational events may be found to be in the course of employment if authorized or directed by the employer. However, a benefit accruing to the employer because of an activity that is anticipated to improve employee morale (e.g., a company party or picnic) is not by itself sufficient to bring the activity within the course of employment.
Injured while working at home is rare since home office types are usually sedentary jobs not lending themselves to physical injury. Nevertheless, there is case law to address this and the results are mixed but decidedly against compensability.
McCormick Law Office in Milwaukee, Wisconsin is experienced in cases determining whether an employee is in the scope of his or her employment at the time of a traumatic injury. Note, the question of occupational or job duties over time injuries are not an issue.
