In what Professor Larson would have referred to as an “upside-down” exclusivity case—where the employee tries to prove that her injuries were not covered by the applicable workers’ compensation law in order that she might instead pursue a tort action against the employer—a federal judge, applying Virgin Islands law, recently held that injuries the employee allegedly suffered when she slipped and fell on a puddle of liquid on her employer’s premises floor, after she had clocked out for a scheduled lunch break, nevertheless arose out of and in the course of her employment, barring her civil action against the employer [see Harris v. Kmart Corp., 2015 U.S. Dist. LEXIS 49473 (Apr. 15, 2015)]. The employee offered a novel, although unsuccessful, argument: that since she did not intend to eat lunch on her authorized break, but rather to run errands with her daughter, the going and coming rule’s “on premises, off premises” distinction did not apply. She contended she had abandoned her employment as soon as she clocked out. While she was still on the employer’s premises at the time she was injured, she argued her injuries did not arise out of and in the course of her employment.
Indeed, the employee’s argument seemed to be consistent with the literal wording of the Virgin Islands going and coming rule, codified in 24 V.I. C.ode § 252(a). Under that provision, injuries resulting “from travel to and from an eating place during an authorized break period shall be considered as arising out of and in the course of employment, provided that such travel is by a reasonably direct route.” She contended that at the time of her injury she was not traveling to nor away from “an eating place.” Accordingly, she argued that her injuries occurred outside the course and scope of her employment. The federal judge disagreed. Close, but no cigar.