There is a fundamental question which has influenced the history and present position of work claims: can the preferential treatment given to workers compared to other injury victims be justified? The industrial injuries scheme privileges workers by making available benefit which cannot be claimed by those not injured in the course of employment.
Position in India:
The principal behind compensation to the injured worker under the Employee™s State Insurance Act 1948 and Workmen™s Compensation Act, 1923 is considered according to the Doctrine of Notional Extension.
Section 3(1) Workmen™s Compensation Act, 1923 provides that the injury must be caused to workman by an accident arising out of and in the course of employment. Employment does not necessarily ends when the tool down signal is given or when the workman leaves the actual workshop. There is a notional extension at both the entry and exit time and space. As employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and egress to and from the place of employment.
As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. It is now well-settled, however, that this is subject to the theory of notional extension of the employer™s premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer™s premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension.[1]
Various judgments of Supreme court and different high Courts have considered the concept of notional employment and said that if the employee dies due to accident while going to work place from residence or while returning from work place to residence, as an accident arising out of and during the course of employment and as such entitled for compensation in accordance with provisions of the Workmen™s Compensation Act, 1923.
The concept of notional extension under the Workmen’s Compensation Act for granting compensation will be applicable when there has been unrebutted evidence to show that the death of the deceased has occurred due to stress and strain resulting in cardiac arrest on his way while he was returning after duty.[2]
Although this doctrine is not specifically enshrined under the Employees™ State Insurance Act 1948 or Workmen™s Compensation Act. Notional extension is yet to be amended either in ESI Act orWorkmen™s Compensation Act. Under ESI, if any accident happens outside the premises within one kilometer radius from the work premises during reasonable office related hours it will be considered as employment injury. Same logic will be applicable forWorkmen™s Compensation Act also.
If accident happens in the company provided vehicle, irrespective of the location and time it is employment injury for consideration under ESI and WC.
The employee cannot claim wages for the loss of pay period. The employee can claim (or company can give) compensation under Workmen™s Compensation Act registering a case with Labor Commissioner. Any payment made by the employer directly to the employee under any outside settlement will not be considered as a legal compensation. The payment has to be made before the labor commissioner and its mandatory. If the employee is covered under ESI, the employee has to approach ESI for benefit employer should have given accident notification to ESI. However, there is no proper test for application of this doctrine. The scope of such extension depends on the facts and circumstances of each case.
Position in U.S: The Premises Rule:
An injured worker is entitled to workers’ compensation benefits only if the injury arose out of and in the course of employment. The first part of this requirement, “arising out of employment,” ensures that there is a causal connection between the work and the injury. Usually the employee has the burden of proving that the injury was caused by exposure to an increased risk from employment.
The requirement that an injury arise out of employment, the employee seeking workers’ compensation also must show that the injury arose “in the course of employment.” To arise in the course of employment, the injury must take place within the employment period, in a location where it is reasonable for the employee to be, and while the employee is fulfilling work duties. This does not mean that the employee must actually be doing his job, or doing it within the precise work hours, when the injury occurs for it to be compensable. Distinguishing between injuries that do or do not arise out of the course of employment is often a difficult and confusing task.[3]
One common issue arises when an employee is injured going to or from work. Clearly, employment necessitates that an employee travel to work and home again. Yet it is not the purpose of workers’ compensation to protect the employee from the risk of travel. Courts have, through the years, reached a compromise: an employee with fixed hours and work locale going to or coming from work generally is covered by workers’ compensation if the injury occurs on the employer’s premises.
This rule can lead to rather harsh results, as in Heim v. Longview Fibre Co.[4] There, the claimant was driving his motorcycle through the usual exit from his employer’s premises when a coworker turning into the premises hit the claimant, killing him. The precise location of the crash was fewer than five feet from the employer’s property, on a public access road to the plant used by company personnel. Nevertheless, the court held that the injury did not arise in the course of employment and denied death benefits. Employees injured off work premises may still recover damages in tort against any persons whose negligence caused them harm.
Some courts, recognizing the harshness of the premises rule, have attempted to extend the premises rule to include injuries that occur within a reasonable distance of the employer’s premises. And most courts recognize the compensability of an injury that occurs off the employer’s premises when an employee is going to or coming from work, where the trip itself is a substantial part of the employee’s service to the employer. In Urban v. Industrial Commission[5], , the employee, a traveling salesperson, was killed in a car accident while driving in the direction of his home, although the evidence was not clear that he was actually returning home. The court ruled the death to be compensable.
Position in U.K
Workers compensation in the United Kingdom helps workers and their families to claim for compensation in the case of injuries, illness or death that occurs due to carelessness, negligence or inadequate training in any workplace. In the workplace, accidents can occur very unexpectedly and consequently, they can affect the life of the workers and disrupt the work. Carelessness is the prime cause of accidents, which could result in injury or even death.
There are many rules and regulations that are put in place at work to protect and ensure the safety of their employees, especially in hazardous and accident prone areas. In the case of an accident or injury at the workplace, a solicitor will assess and review the extent of the injury in terms of out-of-work-pay and compensation will be provided accordingly.
There are two basic routes to gaining entitlement to benefit. A claimant must show that the injury is either a prescribed disease or a ˜personal injury caused by accident arising out of and in the course of employment. These last words, first used in the Workmen™s Compensation Act 1897, have been adopted by English speaking jurisdictions throughout the world. It has been suggested that the phrase has given rise to more litigation than any other in the English language. It™s uncertain scope is not the result of poor legislative drafting, but is inherent in the phrase; it is caused by the very attempt to distinguish work injuries from others.[6]
Usually the relationship between the accident and the work is obvious. However, difficulties can arise in a significant number of cases because of the varied nature of employment; there may be uncertainty as to what exactly the claimant was employed to do, or the discretion that he may have had to do it. The boundaries of when work begins and ends, or is interrupted, can be difficult to draw. The scheme attempts to do so by requiring that accidents arise ˜in the course of employment™.
There are almost as many deaths caused by the daily journey to and from work as there are at work itself. As an exception to the rules in almost all European countries, the UK does not include travelling to and from work as within employment. ˜Normally a person™s employment begins when he arrives at his place of work and ends when the person leaves .The general approach is subject to a number of wide-ranging exceptions. Clearly, for example, those with occupations requiring them to travel, such as bus or delivery drivers will be in the course of employment. Other exceptions involve those[7]
- Travelling in transport arranged by the employer. This is a statutory
- exception. The use of ordinary public transport will not suffice
- Travelling on a specific journey as instructed by the employer
- Travelling on the employer™s property or in areas where the public are
- denied access
- Travelling in the course of a peripatetic occupation. Those who are door
- to door agents or home helps are therefore usually covered except when
- travelling to their first call of the day, or when on the way home, or if they deviate from their route for their own purposes
- Employees who are still on duty because their responsibilities continue whilst travelling. Relevant although not conclusive factors in determining whether the claimant is only travelling ˜to™ duty as opposed to ˜on ˜duty include:
- Was the claimant being paid for time spent travelling?
- Were travel expenses to be reimbursed?
- Was the claimant carrying equipment or tools related to the job?
- Was the claimant on call or required to report at intervals to his employer?
- Was the claimant travelling by a direct route?
Conclusion:
The doctrine of notional extension throws light on the course of employment, the employment doesn™t end once you are out of the work premises include an area which the workman passes and repasses in going to and in leaving the actual place of work. This is the position that has been adopted by Indian judgments and also in the Workmen Compensation Act 1923 and Employees™ State Insurance Act. The U.S follows the premises rule which means to arise in the course of employment; the injury must take place within the employment period, in a location where it is reasonable for the employee to be, and while the employee is fulfilling work duties. This does not mean that the employee must actually be doing his job, or doing it within the precise work hours, when the injury occurs for it to be compensable. But the position of premises rule is still unclear as some courts, recognizing the harshness of the premises rule, have attempted to extend the premises rule to include injuries that occur within a reasonable distance of the employer’s premises. And most courts recognize the compensability of an injury that occurs off the employer’s premises when an employee is going to or coming from work, where the trip itself is a substantial part of the employee’s service to the employer. The position in U.K also covers injury that has been caused in the course of employment but employment begins when he arrives at his place of work and ends when the person and the workmen can claim compensation for injuring caused while travelling or commuting only under the exceptions.
——————————————————–
[1]Sadgunaben Amrutlal And Ors. vs The Employees’ State Insurance (1981) 22 GLR 773; Rajappa vs Employees State Insurance ILR 1992 KAR 284.
[2] United India Insurance Company Ltd. v. Susheela, 2004 LLR 425 (Kam He).
[3] Gregory P Guyton, A Brief History of Workers™ Compensation, (1999), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1888620/.
[4] 41 Wash. App. 745, 707 P.2d 689 (1985).
[5] 34 Ill. 2d 159, 214 N.E.2d 737 (Ill. App. Ct. 1966).
[6] Richard Lewis, Employers™ Liability and Workers™ Compensation: England and Wales, (Oct. 20, 2010), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1695088.
[7] Supra note.6.
