Are They Coming or Going? Employee Travel Can Trigger Workers’ Compensation Liability

by McNees Wallace & Nurick LLC
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As a general rule, an employee who is injured while commuting to or from work is not entitled to workers’ compensation benefits, as the injuries are not deemed to be “in the course and scope of employment” by virtue of the longstanding “going and coming rule.”  There are exceptions to the rule, including: (1) situations where there is no fixed place of employment and the employee is therefore deemed to be a “traveling,” as opposed to “stationary” employee; (2) the employee is on a special assignment for the employer; (3) the employment contract includes transportation to and from work; or (4) special circumstances exist, such that the employee was furthering the interests of the employer when injured.

In an interesting recent case, the Commonwealth Court awarded compensation under the special circumstances exception, despite the fact that Claimant was commuting to work at the time of his motor vehicle accident.

The employee, Miller, was a salaried director of maintenance services, exempt from the overtime requirements of the Fair Labor Standards Act. His regular work hours were from 7:00 a.m. to 3:30 p.m., Monday through Friday.  The employer maintained a four building campus as a facility for senior residents.  The campus had a system of security cameras, whose maintenance was an important priority for the employer.

Miller testified that in addition to his regular hours, he would be called in while off-site two to three times monthly.  In such instances, he received “comp time,” in lieu of additional pay.  The comp time accrued from the time he answered the phone, until he arrived back at home.  On the morning in question, Miller was “feeling very poor and weak.”  He stayed home past his usual 7:00 a.m. start time, with the intention of taking a sick day.  However, the employer called and requested that he stop in to reset the security cameras, after which he could return home for the rest of the day.  En route to the facility, Miller became nauseous and veered off the road, hitting a telephone pole.  He sustained multiple injuries, including a broken eye socket, broken pelvis, ruptured bladder and multiple scars and disfigurements.

The key issue before the WC Judge was whether Miller was commuting to a fixed place of employment, such that the “going and coming rule” barred his claim, or whether special circumstances existed, such that an exception to the rule applied.

Since “but for” the security camera emergency, Miller would not have made the trip to work, the Judge, and subsequently the Commonwealth Court, concluded that this factor brought the case within the “special circumstances” exception to the going and coming rule, and awarded benefits.

The key takeaway is that commuting cases are often fact sensitive and need to be analyzed carefully, to determine whether workers’ compensation benefits are appropriate.  For example, construction workers who might at first glance appear to be “traveling” as opposed to “stationary” employees, are frequently deemed to be “stationary,” if they are working at only one job site at a time.  As such, the “going and coming” rule might preclude compensation in such cases, absent special circumstances.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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