October 31, 2005

"Going and Coming" exception: contractual transportation

Under ordinary circumstances, any injuries that employees might suffer while traveling to and from work would not be covered by workers compensation. This is commonly referred to as the "going and coming" rule. There are several common exceptions to this rule, however, and a recent 4-3 decision by the Pennsylvania Supreme Court illustrates one of those exceptions: the company car. When an employer provides transportation to an employee, injuries occurring during a commute would usually be compensable.

In Wachs v. Workers' Compensation Appeal Board, the case involved an employee who was killed while driving to work in a company-supplied car. The car was provided to the worker as part of a compensation contract negotiated at the time that he was hired some seven years prior to his death. The worker's widow was able to secure benefits by providing evidence of this negotiated contract. There was some dissension by the court because the employee's most recent contract did not explicitly address transportation, but the widow prevailed by proving that her deceased husband's employment was contingent on his getting a company car.

Workers compensation laws vary state to state so a contractual exception may not occur in every jurisdiction, but employers should be aware that while details may vary, exceptions based on employer-provided transportation are quite common. This could include a private company car or group transportation via a company-owned vehicle, such as in the case of 14 Guatemalan migrant workers killed in Maine when the company van transporting them to work careened from a bridge into the Allagash River.

There are many other common exceptions to the going and coming rule. We recently discussed a case involving operating premises, and in that post we listed a variety of other exceptions. Here are some additional resources:

Compensability: Driving "To and From"
Extreme Commuting: Not Exactly the Sporting Life
IWIF: Going & Coming From Work: Exceptions Are the Rule



Can you provide some specifics for MA & NH ?

A good place to get law summaries is the back of a "Best's Recommended Attorneys" annual publication. If you look at the end of the second volume, the states are listed alphabetically with the corresponding laws and rules. Look under the Workers Compensation section of the two states mentioned.

I find that it interesting that the focus of the "Wachs" decision is on the 'terms of employment'.

Although each state obviously varies, usually the issue of compensibility in a 'coming and going company car scenario' focuses on job duties.

Namely, how often or consistent did the employee drive to the office? How often did the employee visit customers or other roles that kept him out away from the office?

Each case of this nature is very fact sensitive. Yet despite not knowing the facts of this case, it appears that the spouse made a very smart argument.

Your site is great, thanks for all of the information. Keep it coming!

Wachs is not an earth-shattering result in PA, when one reviews the cited facts. We typically see the argument that an EE is within the course of employment, when they are injured in a MVA while driving an ER owned vehicle. In 1993 the act was amended to allow compensible injuries where the EE was in a company vehicle AND in the course of employment. Therefore, being in a company vehicle did not automatically result in a finding of a work injury.
In Wachs, ER paid for gas and repairs of vehicle the EE drove to and from work. The argument was that the ER acted to bring the EE under WC coverage on the basis of making travel a part of the employment contract. This seems to be supported by the facts that the ER "enticed" EE to return to their place after leaving for a competitor in the preceding years. That's a pretty strong fact, IMO. Admittedly ER did not pay for his travel time, but paying the expenses of travel has been sufficient in past decisions. So EE falls within the common law exception to going and coming rule b/c ER made travel part of the employment package. Appellate arguments were that 1993 amendment "trumped" this common law exception. Supreme Court ruled it did not, exception still exists.
This ruling conflicts with the "Defense" argument that EE had to be acting in course of employment at time of MVA, the cited record reflects he was not, he was just "commuting".

I think this ruling makes sense if you look at the converse, that is, the EE would not receive work comp for a MVA in an ER owned vehicle, provided to EE for his use, as part of his compensation package,( contract) as a significant enticement for EE to return to ER. There are prior decisions to award work comp , based upon ther "contract" argument. The 1993 amendment did not clearly or directly eliminate the "contract" exception to the general rule. If that is intent, a new amendment needs to expressly eliminate that common exception, as there are numerous cases which follow that rule.

Once again, the work comp laws are interpreted to compensate EE's, the oft-cited humanitarian purpose of the act. One WCJ once told me, that is why they call it the worker's COMPENSATION act, not the Insurer's Relief Act.

Thanks for such great comments, people - good discussion!

And Dave, thanks for your good pointer. Deanne, I am not a lawyer, so I have turned to one for some help in replying to your question. I hope to have more on the going and coming rule soon. Meanwhile, I hope Dave's source proves helpful.


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This page contains a single entry by Julie Ferguson published on October 31, 2005 8:31 AM.

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