Workers’ compensation for sex injury: Could it happen in Ontario?
Christine Davies considers whether an injury sustained while having sex on a business trip might be compensable
Recently, an Australian court found that a woman was entitled to workers’ compensation after she was injured while having sex on a business trip.
The woman was a government employee on an overnight trip, and stayed at a motel arranged by her employer for the night. While staying at the motel, the woman met up with a friend and they had sex in the motel room. While they were engaged in sex, a light fixture fell off the wall above the bed and hit the worker in the face, injuring her nose, mouth and tooth. She later filed a claim for workers’ compensation for these injuries, as well as for a psychological injury secondary to the physical injuries.
The Australian workers’ compensation authority denied her claim, but the decision was reversed by the Australian Federal Court, which held that the nature of the activity was irrelevant to the determination of whether the worker was entitled to compensation. The Court found that the key factor was her presence in the motel room when she was hurt, and not the activity she was engaged in, reasoning, “If the (employee) had been injured while playing a game of cards in her motel room she would be entitled to compensation even though it could not be said that her employer induced or encouraged her to engage in such an activity.”
If this occurred in Ontario, would the worker be entitled to workers’ compensation? The likely answer is “yes”.
The Workplace Safety and Insurance Board (WSIB) provides compensation for Ontario workers who sustain “a personal injury by accident arising out of and in the course of his or her employment”. The term “accident” is defined to include “a chance event occasioned by a physical or natural cause”. WSIB Policy #15-02-02 directs the WSIB, in determining whether there has been an accident in the course of employment, to consider whether the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related.
Generally speaking, accidents that take place on company property and during working hours are more likely to be considered work-related. The WSIB also considers whether the worker was injured while performing an activity that is a work-related duty, or reasonably incidental to the worker’s employment. However, engaging in an activity to satisfy a personal need does not always mean that the worker was not in the course of employment.
WSIB Policy #15-03-05 deals with the situation of workers who travel on the employer’s business, and provides that the worker is generally considered to be continuously in the course of employment except where a distinct departure on a personal errand is shown. In particular, coverage extends to places such as hotels when the employer is paying the worker’s expenses. With respect to activities in a hotel, the Policy states:
The worker is covered should he suffer injury by accident at any time while in the hotel engaged in reasonable acts such as dining in the restaurant and using washroom facilities. If the worker chooses to dine in a restaurant other than in the hotel but within a reasonable distance of it, coverage is extended during this activity. There is no entitlement if the worker is injured while visiting a movie theatre or cocktail lounge or engaging in some other personal activity.
The test set out in the Policy essentially reflects early decisions of the Workplace Safety and Insurance Tribunal (WSIAT) (see, for example, Decision No. 44(1986)). In those cases, the WSIAT has considered the meaning of “distinct departure”, and has found a “distinct departure” from work where a worker has left the premises of the hotel for the purpose of engaging in personal activities for their own entertainment.
For instance, in Decision No. 1503/10, the worker’s visit to Wal-Mart to buy snacks to eat at the hotel pool following the conclusion of the work day was considered a “distinct departure” that was not reasonably incidental to the work. Similarly, going out drinking away from the hotel was a distinct departure from work (see Decision No. 845/10).
However, the WSIB policy covers workers “while in the hotel engaged in reasonable acts”. Therefore, unlike in the Australian case, there would likely be some consideration of the nature of the worker’s activity and whether it fell within the parameters of the Policy. The question would likely be whether having sex in the hotel room is analogous to the other “reasonable” activities listed in the Policy, such as using the restaurant and washroom facilities. The WSIB could very well conclude that having sex is a reasonable and expected activity for a person using a hotel room – something that is related, like eating and using the washroom, to a worker’s legitimate biological needs. Seen in this light, such an accident accident may well be covered.
So in Ontario at least, it is possible that a worker injured while having sex in these circumstances might be entitled to workers’ compensation benefits.
But could the worker could sue another party – for example, the hotel – for her injuries? That question, and a discussion of when workers can sue third parties for injuries sustained in the course of employment, will be dealt with in a subsequent article.
Update: The government’s insurer appealed the Australian Federal Court’s decision in this case to a full panel of the Court, but its appeal was dismissed on December 13, 2012. The full panel agreed that the government’s views on the woman having sex in her motel room were irrelevant, holding that “No approval, express or implied, of the respondent’s conduct was required.” The CBC reports on the case here.