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Texas Workers' Compensation Defense: Employee Was Not Within Course and Scope of Employment

Despite Texas workers' comp being a supposed no fault system, meaning that employees don't have to prove negligence to collect benefits, a number of defenses built into the workers' comp system allow employers and insurers to dispute many otherwise deserving claims. Perhaps the most commonly employed defense is that the employee was Not in the Course and Scope of Employment at that time a workplace injury occurred.

Given the very broad nature of this defense, it, perhaps more than any other defense, is prone to abuse. The experienced work accident attorneys at Grossman Law Offices will explain the Not Within Course and Scope of Employment defense in this article and what it means for injured Texas workers.


Questions answered on this page:

  • What does Not Within the Course and Scope of Employment mean?
  • How does this defense apply for workers injured while commuting?
  • How do employers and insurers abuse the Not Within the Course and Scope of Employment defense?
  • How can an experienced workers' compensation attorney help safeguard your rights?

How Workers' Comp Defenses Work

Before we get started it is important to know that their are several defenses afforded to insurers and employers who wish to dispute an injured workers' compensation claim. These statutory workers' comp defenses, as used by subscribing employers, are an attempt to not pay any benefits to the injured employee. It's not as if using the defense lightens any of the benefits paid to the employee from the employer, but instead it's more cut and dry than that. If the defense convinces the administrative law judge (who handles workers' comp disputes) of the argument, then the injured employee gets nothing.

The defenses range in variety. The statutory defenses that can be used include:

  • Employee was intoxicated- This defense is pretty straight-forward, if a worker was intoxicated at the time of an accident or had intoxicants in their system, they are barred from collecting workers' compensation benefits.
  • Employee hurt themselves on purpose- This is another defense that makes a lot of sense. It would be rather silly for an employer's workers' comp insurance to cover someone who hurt themselves in the hopes of getting some paid time off.
  • Intentional tort inflicted by another employee- As it is a bit trickier than other defenses, this defense applies when an employee is injured by another co-worker for a reason that is not work related. If the cause of the conflict, which leads to one employee attacking another employee is work-related, then this defense does not apply.
  • Injury caused by a recreational activity- Often companies have "voluntary" social activities outside of work. If the event is truly voluntary, then this defense applies.
  • Act of God- Earthquakes, tornadoes, asteroid strikes, or any even that cannot possibly foreseen is considered an "act of God." In the event of one of these (and many more "acts of God" an employer's insurer does not have to pay workers' comp benefits.
  • Injury caused by horseplay- This generally applies to men, more than women, but sometimes co-workers just like to screw around, sometimes in a dangerous fashion. Any injuries that result are obviously not work-related and preclude workers' comp benefits from being paid.
  • Contributing injury- If an employee has a previous injury, for which workers' comp benefits have been paid, they cannot collect benefits on the old injury if they injure something else.

On this page specifically, we'll talk about the defense that the employee was not within course and scope of employment when the injury occurred. This can be confusing for employees and employers alike.

The Defense: Not Within Course and Scope of Employment

As we've established, this defense is an argument that the employer makes to avoid paying any workers' compensation benefits to the employee. Here, the argument is that the employee was not within the "course and scope of his or her employment." That essentially means that the employee was not technically at work and doing a work function, therefore the injury is not the employer's fault. Let's go through some examples:

  • A delivery driver gets into a car accident while making an order delivery. No matter what happened--which driver was at fault--that delivery driver was within the course and scope of employment. Therefore, his employer cannot use this defense against his workers' comp claim.
  • A delivery driver gets into a car accident while driving home after work. The driver was obviously not on the clock, therefore, he wasn't within the course and scope of employment. The employer's defense would hold up in this example.

Sometimes, these situations aren't very clear though. Let's look at a less cut and dry example:

  • A server is on her way to the restaurant and decides to be nice and pick up donuts for the whole crew. After she grabs the donuts, she is struck by a car while walking back to her vehicle in the grocery store parking lot. She tries to file a workers' comp claim, but since she was not clocked in at the time of the accident, the restaurant argues that she was "not in the course and scope of employment" and her workers' comp benefits are denied.
  • The night before, a manager asks a server to pick up donuts on her way into work for the crew. As the server comes out from the grocery store she is struck by a car and injured. She tries to file a workers' comp claim, but the restaurant argues that she was "not in the course and scope of employment" since she was not clocked in. In this situation the restaurant would most likely not be able to win that claim, because the manager had asked the girl to pick up the donuts. Due to the request from her employer, the server was furthering the interests of their business and in the "course and scope of employment" even though she was not on the clock.

Put most simply, this defense usually rests on two factors, either the employee wasn't doing work-related tasks at the time of the accident, or the employee wasn't clocked in at the time of an accident. Generally speaking, to be in the course and scope of employment, an employee has to be doing work stuff and on the clock at the time of the accident.

The Blurry Edges of the Not in the Course and Scope of Employment Defense

Many companies have automated systems in place that clock workers in at specific times, that is even if the employee clocks in a few minutes early, they do not actually start getting paid until a time designated by the company. While most of these companies honor the fact that their employees do not actually begin work until they time they start getting paid, there are quite a few managers out there who see someone ready to work, not doing anything, and immediately assign them a task.

Then when the employee gets injured performing the task, they point to the automated clock in system and try to claim that the employee was not on the clock, because the accident occurred before they started getting paid. In such an instance, even though the employee was technically not on the clock when the accident occurred, since they were carrying out tasks at the request of their supervisor, they are still clearly within the course and scope of employment.

A trickier case we came across recently involved a man who was in Dallas on business at his company's request. Generally, when people are traveling for work, they are within the course and scope of employment during the entire time they are traveling. For instance, had this man walked across the street to grab something to eat at a restaurant and been struck by a car, although eating wasn't part of his job description, he would still be covered by workers' comp.

For those who think that the law doesn't make sense, in this instance it recognizes that people who are traveling out of town, on company business, will at some point have to eat. Since the only reason they are in that town is to further their employer's interests, the employer is responsible for them.

However, this particular business traveler had a son in Dallas, who lived several miles from where the business travelers' hotel was located. The business traveler agreed to meet his son for dinner while in town near where his son lived. On his way to the restaurant, several miles away, the business traveler was struck and killed by another motorist. His wife ended up filing for workers' compensation benefits and was denied, because the man was not Within the course and scope of his employment.

This may be confusing, since we just said that if he had walked across the street to get dinner and was hit and killed by a car, he would have most likely been eligible for workers' comp benefits. The difference is that since the man was engaging in his own business, driving several miles out of the way, he was no longer within the course and scope of his employment.

In the instance of the worker who was helping before being officially on the clock, the employer's use of the not within the course and scope of Employment would have been completely out of bounds, but in the second instance it was absolutely a legitimate use of the defense. Since it is not always clear if the defense is being used correctly, and some employers will use it to intimidate and employee into not filing a workers' comp claim, the best course of action is that when in doubt, reach out to an experienced workers' comp attorney, like those at Grossman Law Offices. We're happy to help clarify the blurred lines.

Combating the Workers' Comp Defense of Course and Scope

Unfortunately, for many workers this defense is employed far more than it should be. From an employer's perspective it is at least worth a shot to make the argument if it can save them a few bucks on their workers' comp premiums. For over 25 years, the experienced workers' comp attorneys at Grossman Law Offices have been fighting for the rights of injured workers. In that time we have seen countless laughable attempts when employers tried to invoke the "not in the course and scope of employment" defense. Employers know that most employees know very little about the law and that few will actually speak with an attorney to find out what their rights actually are. That is why we educate our clients about their rights, then fight for them when employers attempt to cheap them out of workers' compensation expenses by using bogus defenses.

The main thing to remember about this particular defense is that it suggests the injury was not work-related, at least that's what the employer will argue. If this argument is used against you in your case for workers' compensation coverage, don't be afraid to seek legal help. Our lawyers know what the law states when it comes to your case and what it doesn't state too. Call us, at no cost to you unless we win, at (855) 326-0000.


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