by Vincent A. Toreno, Esq.

The Supreme Court of Kentucky recently ruled that an injury sustained by a claimant during a pre-employment physical was not compensable. The Kentucky claimant underwent the exam after being given a tentative job offer. However, the offer was contingent upon passing the physical. In other words, the pre-employment physical was a condition precedent to the job offer. The employee actually passed the physical and began working for her employer. Several weeks later, she had to have neck surgery, allegedly because of an injury sustained while lifting during the pre-employment physical.

The Kentucky Supreme Court noted the worker could only prevail if she could show she was either employed at the time of the examination or if the examination conferred some sort of benefit to the employer. The court noted that Kentucky’s Workers’ Compensation Act defines “employee” as one who is “performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury.” The court further noted that nothing in the record supported the claimant’s position that she was employed when she participated in the examination. Clearly, the offer of employment was contingent upon passing the physical examination, and therefore, she was not employed during the physical examination. Further, the physical examination itself did not provide any “service” in the course of the employer’s business. The examination offered no material benefit to the employer, nor did the claimant expect payment for the physical examination itself. Accordingly, the Kentucky court held no employment relationship existed when the injury occurred.

Would the result be the same in Georgia? It does not appear that this exact issue has been decided by our Court of Appeals or Supreme Court. However, the Georgia Workers’ Compensation Act defines “employee” in a somewhat similar manner as the Kentucky Act. In Georgia, “employee” means a person “in the service of another under any contract of hire or apprenticeship, written or implied…” We would argue that at the time of a pre-employment physical, the injured claimant is not an employee, and therefore, the injury would not be compensable because the claimant is not providing a service, nor benefiting the employer in any way. Of course, every case is different, and each is decided on its own set of facts. Although Kentucky law would not be binding in Georgia, the case could be persuasive and based on the facts in the Kentucky case, a strong argument could be made that the claimant would not be an employee in Georgia at the time of the injury and, therefore, the injury would not be compensable.