Nevada requires most employers to carry workers’ compensation insurance. To receive workers’ compensation benefits, an injured employee must show that his or her injuries “arose out of and in the course of his or her employment.” NRS 616C.150(1). Insurers closely examine the facts of an injury to determine if it meets this standard. As a practical matter, it can be difficult to define the borders between an employee’s job and personal life. Injuries suffered during breaks often fall into this grey area.
The Rio case offers an example
In Rio All Suite Hotel & Casino v. Phillips
, 126 Nev. 346 (2010), a poker and blackjack dealer was on a 20-minute break when she fell walking down stairs to her employer’s break room. Id.
at 348. The casino’s third-party workers’ compensation administrator denied Ms. Phillips’s claim, arguing that her injury did not arise out of the course of her employment. Id.
The case made its way through the workers’ compensation appeals process and eventually ended up at the Nevada Supreme Court.
To determine if an injury “arises from” employment, the Court in Rio
looked at whether the employee showed “a causal connection between the injury and the employee’s work in which the origin of the injury is related to some risk involved within the scope of employment.” Id.
at 350-51, citing Mitchell v. Clark County School District
, 121 Nev. 179, 182 (2005) (internal quotation marks omitted). The Court went on to distinguish between three types of risk an employee can face at work: employment-related risk, personal risk, and neutral risk. Id
. at 351, citing K-Mart Corp. v. Herring
, 188 P.3d 140, 146 (Okla. 2008).
Injuries suffered as a result of employment-related risk generally are covered by workers’ compensation benefits. Injuries from dangerous equipment, uneven ground at a work site, or other clearly work-related dangers are clearly within the scope of employment-related risk. But injuries arising from personal risks, even if they happen at work, are not covered. Personal risks are those that “could not possibly be attributed to the employment,” such as injuries arising from an employee’s personal health condition, like a fall caused by a bad knee or epilepsy. Id.
“Neutral” risk and the increased-risk test
The Court’s third category of risk, so-called “neutral” risk, encompasses dangers that aren’t readily assigned to either of the other two types of risk. Neutral risks include a fall like the one Ms. Phillips suffered, which happened without a clear work-related explanation (such as a badly maintained staircase) or a clear personal cause (such as an illness). To determine if an employee is entitled to benefits in a neutral risk situation, the Court in Rio
adopted the so-called “increased-risk test.” Under this test, benefits should be given to an employee who is exposed “to a risk greater than that to which the general public is exposed.” Id.
at 353, citing Herring
, 188 P.3d at 146. An employee can face greater risk than the public simply by being exposed to a dangerous situation more often than a member of the general public—that is, the quantity of the risk may matter more than its inherent quality. Id.
The Court ultimately held that Ms. Phillips was entitled to workers’ compensation benefits for her injury because she had to go up and down the stairs leading to the employee break room more often than the public, and therefore the risk of climbing the stairs was quantitatively greater for her than for the general public. Id.
In its analysis, the court focused on two important facts about Ms. Phillips’s situation: she was required to take periodic breaks, and had to use the stairs to access to the employee break room. Id.
An experienced attorney can sort through the confusion
Applying the rules of the Rio
case to situations involving significantly different facts can be difficult. That is why break-time injuries can be difficult to evaluate without the help of an experienced personal injury lawyer. If you have been injured while on break and you’re having trouble getting workers’ compensation coverage, be sure to talk to an attorney right away. The attorneys at the law firm of Greenman Goldberg Raby Martinez have deep experience with challenging cases. For a free attorney consultation, reach out to us today at 702-388-4476, or send us a request through our site