Heirs of Employee Who Died While on Travel May Be Eligible for Workers' Comp

​In Nevada, for an employee to be eligible for benefits under the state's traveling employee rule, there is no foreseeability requirement. As such, a deceased employee's widow and daughter did not need to show that the employer should have foreseen that the employee would engage in the specific activity that caused his injury in order to make a workers' compensation claim. The Nevada Supreme Court thus held that the workers' comp appeals officer wrongly imposed such a requirement in denying benefits to the claimants.

The employee in this case traveled from Nevada to Texas to attend a work conference in 2015. While in Texas, he stayed at a friend and co-worker's ranch, where he suffered a fatal injury while riding an all-terrain vehicle. His widow and child requested workers' compensation benefits from the individual's employer at the time of his death. The employer, Providence Corp. Development, d/b/a Miller Heiman Inc., and its workers' compensation administrator, Gallagher Basset Services Inc., denied the request. The denial was upheld by a workers' compensation appeals officer, and the widow and child's subsequent petition for judicial review was denied by a district court.

On appeal to the Nevada Supreme Court, the high court held that the appeals officer failed to apply the traveling employee rule, which, according to the court, recognizes that "when travel is an essential part of employment, the risks associated with the necessity of eating, sleeping and ministering to personal needs away from home are an incident of the employment even though the employee is not actually working at the time of injury."

The high court told the appeals officer to evaluate on remand whether the plaintiff's situation fell within the traveling employee rule, thereby triggering payable benefits, or whether the former employee's situation represented a "distinct departure exception," under which the widow and child would not be entitled to benefits.

On remand, the appeals officer again denied the request for benefits, maintaining that the situation fell within the distinct departure exception, in that it was not foreseeable to the plaintiff's employer that he would be riding an ATV.

The widow and daughter again petitioned for judicial review, which the district court granted, reasoning that the court need not impose a foreseeability requirement. Miller Heiman then filed an appeal.

In its latest opinion, the Nevada Supreme Court said the appeal presents a pure question of law and concluded that the appeals officer's decision "was legally erroneous." In particular, the appeals officer misinterpreted the individual's distinct departure exception to the general traveling employee rule.

The court said that in its earlier decision, it highlighted that distinct departures "tend to involve a personally motivated activity that takes the traveling employee on a material deviation in time or space" from their employment-related activities.

The court noted that the appeals officer found that the individual's ATV ride was not a "material deviation in time or space from the place where the individual was staying." The appeals officer also acknowledged that the individual "was tending 'reasonably' to his personal comfort needs while riding the ATV because he was staying at his co-worker's ranch and because transportation via ATV was an ideal means of traversing the 'sprawling' ranch," the court said.

However, in denying benefits, the appeals officer apparently found that the distinct departure exception to the general traveling employee rule applied because it was not foreseeable to the individual's employer that he would be riding an ATV.

The high court disagreed, noting that in its earlier ruling, it "did not impose a requirement that an employee's activities need be foreseeable to his employer in order for the employee to recover workers' compensation benefits." Therefore, the workers' compensation appeals officer erred in denying benefits to the individual's widow and child. Accordingly, the Nevada Supreme Court affirmed the district court's order.

Providence v. Buma, Supreme Court of Nevada, No. 84111 (July 13, 2023).

D.M. Fera is a freelance writer in the Washington, D.C., area.