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Monday, October 3, 2011

Work Injury During Sex: Ridiculous?

Guest Blog by Thomas M. Domer  

Not really. From time to time lurid headlines raise eyebrows about employees who claim workers' compensation for injuries occurred during sex. The most common response is “How ridiculous . . . The employee is not being paid to have sex (unless she is a hooker).”

A most recent headline notes an Australian woman who had hotel sex with an acquaintance and was injured when a wall-mounted light fell on her during the encounter. She sought workers' compensation because the incident occurred during a business trip and she claimed having sex on a business trip is “an ordinary incident of life” that entitles her to payment under workers' compensation law.

Traveling employees receive broad workers' compensation coverage in Wisconsin under a 3-step analysis:
  1. Traveling employees are deemed to be in the course of employment at all times while on a trip (portal to portal);
  2. Except when engaged in deviation for a private or personal purpose;
  3. Acts reasonably necessary for or incidental to living are not deviations.
Skeptics may note that sex may or may not be reasonably necessary for living, but the last clause provides that acts merely incidental to living are not deviations and therefore coverage should be provided.

The traveling employee provision was created to remedy situations in which employees, whose work required them to live away from home for periods of time, were not compensated for injuries sustained during normal activities of daily living on a business trip. Wisconsin Supreme Court has issued a presumption that a traveling employee performs services incidental to employment at all times on a trip, with the burden of proving deviation falling to the employer.

Such widely varied activities as skiing, shopping, drinking, and swimming have been found compensable under the traveling employee statute. Recent court cases confirm that traveling employees may participate in reasonable recreational activities without deviating from their employment.

Many employee trips have a “dual purpose,” both personal and business. The Court’s criteria for coverage: If the business purpose could necessitate the trip even if the personal trip were cancelled, compensation is awarded.

Thomas M. Domer practices in Milwaukee, Wisconsin ( He has authored and edited several publications including the legal treatise Wisconsin Workers' Compensation Law (West) and he is the Editor of the national publication, Workers' First Watch. Tom is past chair of the Workers' Compensation Section of the American Association for Justice. He is a charter Fellow in the College of Workers' Compensation Lawyers. He co-authors the nationally recognized Wisconsin Workers' Compensation Experts Blog.