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What Do You Think: Did Ill-Fated Moped Ride to Bagel Shop Arise Out of UPS Driver’s Employment? 

29 Oct, 2023 Chris Parker

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Washington, DC ( -- In many states, and in the District of Columbia, an employee may be entitled to workers’ compensation benefits if he’s injured during a paid lunch break. But to what extent do the employee’s personal choices concerning where to eat and how to get there affect the compensability of the claim? 

A case involving a UPS driver who rented a moped to get a bagel answers that question. The driver had plans to meet a friend for lunch at the shop. The driver could have gone to a nearby 7-11 but he hated going there and the bagel shop was pescatarian-friendly. But there was a catch: it was a mile and half away from the parking spot.  

So, the driver rented an electric moped scooter and on the way to the bagel place he crashed and injured his leg.  

The Compensation Review Board awarded the driver workers’ compensation benefits and the company appealed. 

The appellate court noted that to be compensable, an accidental injury must arise out of and in the course of employment. 

Was the leg injury compensable? 
A. No. It did not arise out of employment. 
B. Yes. It arose out of and in the course of employment. 

If you selected A, you agreed with the court in UPS v. Brodgon, No. 21-AA-0560 (D.C. App. Ct. 07/20/23), which held that the injury was too attenuated from the driver’s employment to arise out of it. 

First, the court conceded that the trip to the bagel shop was not purely personal. The court noted that the worker was being paid for his lunch break. Further, the transient nature of his work placed him in a position where one might expect him to travel for lunch. At the same time, the trip wasn’t clearly work-related, given that he was meeting a friend, and he could have eaten closer to his truck. 

The court therefore applied the compensability standard for neutral risks: it asked whether the employee's injuries would not have happened but for the fact that conditions and obligations of the employment placed him in a position where he was injured. 

The court answered that question in the negative, finding the trip was too far afield to be work-connected, and was closer to being personal. The employee had other, closer options for lunch, even if he didn’t like them. He chose the bagel shop because he preferred it and because he had prior plans to meet a friend there. He chose to rent a moped because the shop was too far away. 

“[The driver] brought the risk upon himself; it did not just happen to befall him while in a position caused by his employment,” the court wrote.   

The court reversed the Board’s decision. 

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