Employers Should Consider ‘Increased Risk Test’ When Evaluating Workers’ Comp Benefits

The Nevada Supreme Court has ruled that although employers are not “absolutely liable” when employees are injured “on the job,” companies should apply the “increased risk test” to determine whether they are entitled to workers’ compensation benefits.

The justices explained the increased risk test in Rio All Suite Hotel & Casino v. Phillips. According to court documents, Kathryn Phillips was a poker and blackjack dealer at the Rio All Suite Hotel & Casino in Las Vegas. While taking her mandatory 20-minute break during her usual eight-hour shift, she walked down the stairs to the employee break room, slipped, and fractured her ankle.

Her treating physician determined her injury was work related, and Phillips had surgery to repair her ankle. But Rio’s third-party administrator, Sedgwick CMS, denied her claim saying Phillips did not prove the injury arose out of her employment.

“The types of risks that an employee may encounter during employment are categorized as “those that are solely employment related, those that are purely personal, and those that are neutral,” the high court said.

In Phillips’ case, the risk appeared to be neutral — “neither distinctly employment nor distinctly personal character.” However, the court said it was appropriate to apply the increased risk test, which “examines whether the employment exposed the claimant to a risk greater than that to which the general public was exposed.”

After evaluating the case, the state Supreme Court said, “that substantial evidence in the record supports the conclusion that under the increased-risk test, Phillips’ injury arose out of the course of her employment.”

Phillips was required to take six periodic breaks, and there was no evidence to suggest that employees had any other means of reaching the employee break room without the stairs.

“Because the employees’ periodic breaks were mandatory, Phillips was required to use the staircase six times during each shift. In fact, in its opening brief, Rio calculated that during the course of Phillips’ 17-year employment, she traversed the stairs approximately 25,000 times,’ the court said. Thus, the court concluded that the frequency with which Phillips was required to use the stairs subjected her to a significantly greater risk of injury than the risk faced by the general public. Consequently, Phillips should be awarded benefits, the high court wrote.