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Limited accident protection when going for a walk while on call


LSG Essen: Accidents at work must have an official cause
Essen (jur). If employees take their dog for a walk while on call, they are only under the protection of the statutory accident insurance under strict conditions. After that, the accident must have an official cause, the regional social court (LSG) North Rhine-Westphalia decided in a judgment published on July 12, 2016 (file number: L 15 U 547/14 ZVW). In this specific case, the Essen judges refused to recognize an elderly care worker as an accident at work. The court implemented a judgment of the Federal Social Court (BSG).

The geriatric nurse employed by Johanniter Unfallhilfe in the Rhineland suffered an accident in January 2010 while on call when she went for a walk with her dog. When she took a business call on her emergency cell phone as she crossed the street, she overlooked the snow-covered curb and fell. She broke her ankle in the process.

The Accident Insurance Fund of North Rhine-Westphalia declined to be recognized as an accident at work and thus compensation for accidents. The risk of accidents arose primarily from the private winter walk. In contrast, the phone call was only a side job. The woman replied that what mattered was whether she would have fallen without the call. In the first round, the LSG agreed with the geriatric nurse, but allowed the revision to the BSG.

On June 26, 2014, the judges in Kassel (Az .: B 2 U 4/13 R; JurAgentur report from the day of the judgment) emphasized that the woman was contractually obliged to answer the phone call. There was a so-called mixed activity here. In addition to the private activity - going for a walk - the business activity - telephoning - was added. In the case of such a mixed activity, there is also accident protection, but only if the official activity was the cause of the accident. This applies to every work accident, including on-call duty.

According to these legal requirements, the LSG Essen should re-examine the dispute. In the second round, it now refused to be recognized as an accident at work. The crucial question was whether the insured action - in the specific case the service interview - had realized a risk that the insurance cover must take. Here the fall and the health damage caused by it did not occur “as a result of” the insured activity. Telephoning was not the cause of the fall, but rather walking the dog.

There is no evidence that the geriatric nurse was distracted by the call and therefore overlooked the snow-covered curb. "It is also not possible to ascertain that the telephone call influenced the applicant's locomotion in any other way and was objectively involved in the fall," said the LSG in its final judgment of March 29, 2016.

Finally, there is no evidence that the geriatric nurse wanted to cross the street particularly quickly because of the answer to the official call. There was therefore no official cause for the fall, so that recognition as an accident at work should be rejected. fle / mwo

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