Terrorist Acts-Are Employees Covered When Terror Strikes?

A recent NJ appellate court was called upon to decide Claim of an Airline Stewardess for a traumatically induced psychiatric injury.

New Jersey’s workers’compensation law on injuries occurring off the employer’s premises is extremely fact sensitive and the need for expert legal counsel is therefore even greater than usual. Generally, when an employee travels overnight to perform some task it is considered to be a “special mission” and compensable. However, not every aspect of everything the employee does when away from home is compensable. Accordingly, it is not accurate to say that coverage is for travel abroad is “wing to wing”. The court will continue to look at exactly what the employee is doing when the injury occurs and determine whether he or she was in the direct performance of the employee’s duty while doing it. Therefore, NJ’s coverage for these types of injuries follows the “in the course of and in the scope of approach” utilized for other work related claims. The best case on point to illustrate this is the Walsh v. Ultimate Corp., 231 N.J. Super. 383 (App.Div. 1990). In Walsh, the employee was given a temporary assignment in Australia and encouraged to enjoy the location and bring his family there so as to convince him to take a 1-year job at that location. All his expenses were paid for while there, including travel, food and hotel expenses. Mr. Walsh died as a result of a motor vehicle accident in Australia while going to a resort for his own enjoyment. The Appellate Division found his death not to be compensable. In the court’s ruling they said “decedent was not in the course of his employment at the time of his accident as he was not undertaking any obligatory task for his employer at the time”.

Regarding terrorist acts, the courts will apply the same test as above. An injury will not be excluded because it resulted from a terrorist act and it will not be arbitrarily included for the same reason. Rather, if the petitioner was “in the course of and scope of his/her employment and as a result was injured by a terrorist act it will be compensable. The best case to illustrate this point is Stoka v. United Airlines, CP# 2001-32491, 11/26/03. In Stoka, an airline stewardess filed a claim for PTSD as a result of hearing of the demise of her fellow employees on Flight 93 from Newark. She was supposed to be on Flight 93 from Newark which crashed in Shanksville, PA but had asked for leave and received it. In denying the petitioner benefits the Appellate Division affirmed that the test is that the injuries must “arise out of and in the course of her employment”. The court concluded that the PTSD arose out of her employment as a stewardess but not in the course of said employment. In so doing, the court affirmed that whether the employee was “engaged in the direct performance of his or her duties” when the injury occurred remains part of determining compensability even if the injury is terrorist related.

In sum, in NJ, employees who sustain injuries while traveling are covered by Workers’ Compensation benefits if they can show a causal connection between the employment and the injury and that he/she was actually performing a job duty when the injury occurred. The same can be said for employees who sustain injuries due to some terrorist act.