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July 18, 2005

Exception to the "going and coming" rule: operating premises

I was catching up on back issues of Business Insurance this past weekend and came across an interesting recent decision by the Supreme Court of Kentucky involving the going and coming rule.

By way of introduction, the going and coming rule has to do with employees traveling to and from work. Generally, any injuries that an employee would suffer while traveling to and from work would not be compensable. There are several exceptions to this rule and the case of Warrior Coal Company LLC v. Stoud (pdf) offers an illustration of one such exception.

This case dealt with a worker who was driving his own vehicle to work and who turned onto a private access road leading to Cardinal Mines. This road was owned by his employer, used exclusively by the company, and was part of the company's operating premises. While driving on the access road, the worker fell asleep, drove off the road, and hit a tree, sustaining a neck injury. The employee filed a claim for benefits, which his employer denied, stating that the employee's injuries were not caused by employment and that "falling asleep was a substantial deviation from the employment." However, an Administrative Law Judge determined that the worker was indeed eligible for benefits and this decision was upheld by the Court of Appeals. The employer subsequently appealed to the Supreme Court of Kentucky, where the prior decision for compensability was upheld.

In finding for the employee, the court noted the exception to the going and coming rule when an injury occurs on an employer's operating premises:

"The theory for the exception is that coverage should apply when an injury arises from a peril that is related to the employment, regardless of whether it occurs at the actual worksite. Consistent with the theory, an injury that occurs while the worker is on a personal mission that substantially deviates from the employment is not viewed as being work-related even if it occurs on the employer's operating premises ... But an injury is compensable if the worker is engaged in normal coming and going activity at the time it occurs and has access to the place where it occurs because of his employment.

In this case, the court did not see falling asleep as a sufficient deviation from employment.

Other common exceptions to going and coming rule
Workers comp has many gray areas and every state has different laws. Even when states have similar laws, courts can interpret them very differently. The following are common exceptions to the going and coming rule, but you should check with the law in your state.

  • Salespersons, visiting nurses, and other workers who spend a great deal of their time on the road or on call. Because travel is an integral function of the job for these employees, and because they do not operate from a fixed locale, they are often exempt from the going and coming rule.
  • Supplied transportation. When an employer supplies a vehicle or pays for transportation, any injuries tht occur are often found to be compensable.
  • Business travel away from home. Courts are generally liberal in determining compensability for accidents occurring during business travel away from home. Injuries that occur during recreational pursuits or other activities may be deemed compensable while traveling away from home, even if these activities would not be deemed work-related at home.
  • Driving in a "zone of danger" or an area of special hazards. Such a situation might occur if an employee has to drive through a particularly dangerous area, such as a blasting zone or construction site, to get to work.
  • Dual purpose. An example of this would be an employee who is driving home from work and performing an errand for the employer on the way. If the employer is deriving benefit from the employee's actions, any injuries that occur may be compensable.

More information:
Compensability: Driving "To and From"
Compensability: Deviation From Employment and "Personal Comfort" Doctrine
Extreme Commuting: Not Exactly the Sporting Life
Course and Scope: A Case of Flag Waving
Where the Rubber Meets the Road: Risk Management for Employees Who Drive

Posted by Julie Ferguson at 8:31 AM Link to, Comment (0), or E-mail this post
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