The Court of Appeals affirms denial of benefits to an employee injured performing an agility test required for transfer to another position; although an employee’s self-improvement activity may be covered, employee here presented no evidence where or when he took the test so as to establish a work-related time or place.
Employee works as a night security guard and general cleanup person. On August 20, 2010, he was injured performing an agility test his employer required for him to transfer to a field worker job. A deputy commissioner held the injury did not arise in the course of employment because employee initiated his return to field work and voluntarily performed the test to further his personal desire to earn more wages. The commission affirmed.
On appeal, employee challenges the sufficiency of evidence to support the commission finding his injury did not arise in the course of employment. We affirm. Contrary to employer’s argument, employee satisfied Rule 5A:18 by clearly presenting and arguing his course of employment issue to the commission; he is not required to do so in his notice of appeal which cannot alert the commission to avoid error. Credible evidence supports the commission finding that employee’s injury did not arise in the course of employment. The evidence supports that employee was acting on his own initiative for his own advancement when taking the agility test and not fulfilling an employment duty or incidental activity. We agree with a commentator that an employee’s self-improvement activity that takes the form of a specific action addressed to getting a more desirable job or location may be covered if within the time and space boundaries of employment. Here, employee presented no evidence of where or when he took the agility test so as to establish a work related time or place.
Whitt v. Halliburton Energy Servs. Inc. (Petty) No. 2281-11-3, May 15, 2012; Workers’ Comp. Comm’n; Kerry S. Hay for appellant; E. Albion Armfield for appellee. VLW 012-7-148(UP), 6 pp.