By Thomas More Holland, Esquire
For most people, their workday begins when they arrive at their jobs and sign in. But for others, such as workers who do not have a fixed place of employment or who work at various locations, their workday may begin as soon as they turn on their cars and leave their driveways. Consequently, lawyers who represent individuals injured while going to work, or while coming home, must examine the circumstances to determine whether their clients’ injuries are work-related, thereby entitling them to workers’ compensation benefits.
Of course, the analysis of claims for workers coming to or going home from work raises a variety of issues. This article will focus on the “coming and going rule,” in particular, those situations in which your clients may be entitled to workers’ compensation benefits. While there are additional issues – such as the interplay between workers’ compensation and third party claims – this article primarily addresses the workers’ compensation aspects of those claims.
Generally, an individual is not entitled to workers’ compensation benefits (either wage losses or payment of medical bills) for injuries occurring while commuting to and from work. There are exceptions to this general rule, however, which apply when injuries occur that are not within the traditional commute to and from work. There are four general exceptions to the “coming and going rule” under which an injured worker may be entitled to benefits under the Pennsylvania Workers’ Compensation Act:
- When the employee has no fixed place of work;
- When the employment contract includes transportation to and from work;
- When the employee is on a “special mission” for the employer; or,
- When special circumstances exist demonstrating that the employee was furthering the business of the employer.
Courts have applied these exceptions liberally, awarding benefits under a wide range of circumstances. Consequently, lawyers should evaluate these cases to determine whether there is a viable workers’ compensation claim. In doing so, they should also consider the impact that the receipt of workers’ compensation benefits may have upon third party claims.
No Fixed Place of Work
The first exception applies when an employee does not have a fixed place of employment, i.e.,one location such as an office or factory. While this appears to be a straightforward question, the answer can quickly become clouded. For example:
- What if an employee has multiple fixed places of employment and is traveling from one to the other?
- Or, what about an employee who is injured while on a layover between two jobs?
Numerous scenarios that could apply. Regardless, the first step in answering the question of whether the employee has a fixed place of employment is to determine whether the employee is either a stationary or traveling employee. Examples of traveling employees include truck drivers, traveling salesmen, and site inspectors, among others. On the other hand, examples of stationary employees traditionally include factory workers, office workers, and others who spend their workday at the same location. Additionally, employees such as construction workers who do not have a fixed place of work in the traditional sense are still considered as stationary employees when working at a known work site.
The importance of distinguishing between traveling and stationary employees is to address the difference between their course of employment while traveling. Traveling employees can easily make claims related to their commute to and from work because they are constantly traveling to and from different locations in the furtherance of their employer’s business. Stationary employees, however, typically only travel during their commute to and from work, which is not considered to be time spent furthering the business of the employer.
The Commonwealth Court addressed the wide coverage provided to traveling employees in Roman v. WCAB (Pennsylvania Dep’t of Envtl. Resources), 616 A.2d 128 (1992), holding that when a traveling employee is injured after setting out on the business of his employer, it is presumed that he was furthering the employer’s business at the time of injury. A traveling employee who gets injured while driving from a work site to his hotel to sleep may fall under the exception and have the injury covered; however, a stationary employee who drives home to sleep and shower in between long shifts will fall under the general rule, and will not be protected if injured during the commute. Fonder v. WCAB (Fox Integrated), 842 A.2d 512 (Pa. Cmwlth. 2004).
Ultimately, even for traveling employees, you must look at the employee’s actions when the injury occurred and assess the scope of the employment. Thus, these cases often turn on very narrow facts. For example, in Roadway Express, Inc. v. WCAB (Seeley), 532 A.2d 1257 (Pa. Cmwlth. 1987), the Court ruled that a truck driver who was injured while crossing the road on his way from a restaurant to his hotel while on a layover between trips fell within the exception because the driver was on-call and a layover period was required by his employer. On the other hand, a traveling employee did not fall within the exception when he spent his time on layover wandering around town and venturing to an unauthorized hotel with a strange woman, where he was later found dead. Capitol International Airways, Inc. v. WCAB, 428 A.2d 295 (Pa. Cmwlth. 1981). In the truck driver’s case, the action of walking across the street from a restaurant to his hotel while on layover was deemed as reasonably within the course of employment; however, the man who ventured to an unauthorized hotel with a strange woman was not pursuing any activity within the scope of employment and therefore did not fall within the exception.
Employment Contract Includes Transportation to and from Work
The second exception to the coming and going rule exists when an employment contract includes transportation to and from work. To make a claim under this exception, two elements must be met: (1) the employee must prove that the travel allowance is related to the actual expense and time involved in the employee’s commute, and (2) the employee must prove that the employer provided or controlled the means of the commute. The first element essentially requires not only that there is an allowance paid to the employee for travel expenses, but also that the allowance is directly related to that employee’s actual expense in both cost and time while making the daily commute. The Commonwealth Court specifically addressed this distinction in Kear v. WCAB (B&W Construction), 503 A.2d 1096 (Pa. Cmwlth. 1986), holding that an employment agreement including carfare provided without consideration of the actual distance employees would travel is not sufficient. The fact that a company may provide some type of travel allowance is irrelevant unless the monetary amount is calculated based on the expense or distance of the individual employee’s commute.
The second requirement that the employer provides or controls the means of transportation is equally important. It should be understood, however, that simply because a company car is being used does not make the employer liable for harm that occurs involving the use of that car. Section 301(c)(1) of the Act, 77 P.S. § 411(1), states that injuries occurring while using a company car are not covered unless the employee is actually engaged in the course of employment. This is illustrated in Olszewski v. WCAB (Royal Chevrolet), 648 A.2d 1255 (Pa. Cmwlth. 1994), where the court held an employee was not in the course of employment when, while using a company car to commute to work, he got in an accident in front of the employer’s place of business, but not on the premises. Mere permission to use a company car does not create a contractual agreement to provide transportation. Adding a company car to an accident involving an employee is an easy way to distort an already complex issue, but staying mindful of the two elements that must be met for this exception to apply can simplify things.
There are times when an employee makes a special trip traveling out of the workplace to somehow further the employer’s business. This type of trip is considered a “special mission” and creates the third exception to the coming and going rule. This is not meant to be a means of encompassing “everything else” that should be covered – that is reserved for the “special circumstances” exception – but rather for specific instances when an employee is sent by the employer to do something unusual for the purpose of furthering business. For example, a restaurant employee was injured while taking a box of donuts to a radio-station on her way home, where it was expected the disc jockeys would eat the donuts on air and comment on how good they taste. In this case, the employee was covered because the trip was part of an advertising scheme designed to further the employer’s business and fell within the special mission exception.
Alternatively, in Action, Inc. v. WCAB (Talerico), 540 A.2d 1377 (Pa. Cmwlth. 1988), the Court held that a man who was fatally injured in his driveway after returning from a monthly meeting was not in the course of employment because the meeting could not be considered a special mission. The key to the special mission exception is that the objective of the travel must not be a regular part of the employee’s job, as was the case with the restaurant employee’s impromptu donut delivery. If the delivery was a monthly activity, such as the meeting in the Action, Inc. case, it would not be considered a special mission.
The final exception of the coming and going rule is meant as a way of ensuring that coverage exists when no other exceptions are met, but considering the circumstances, the employee’s travel was furthering the employer’s business. The circumstances must show the employee is not simply traveling out of personal convenience, but rather as an order from the employer, either expressed or implied. Some claimants have attempted to use this exception in situations where a job may include extended hours of work, or there are dangerous driving conditions on the trip to work, but have been unsuccessful. This exception is better reserved for situations where an employee must be constantly available to respond to emergencies involving the employer, and in the process of traveling to or from such a work-related activity is injured.
The coming and going rule addresses a multitude of situations where a worker may receive workers’ compensation benefits for an injury occurring while traveling on a work-related activity. These cases often turn on very narrow facts, making it important to consider each situation and search for scenarios that may fall within one of the four exceptions. Keep in mind that the Pennsylvania Workers’ Compensation Act is remedial in nature and was intended to benefit employees. This supports a liberal application of the exceptions, making it possible to ensure your client gets the benefits to which he or she is entitled as a result of an injury that occurs during work-related travel.