This post was contributed by Paul D. Clouser, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Lancaster, Pennsylvania.
As a general rule, an employee is deemed not to be “in the course and scope of employment” and is therefore not entitled to workers’ compensation benefits, while commuting to and from work. This is known as the “going and coming” rule. However, if the employee is deemed to be a “traveling employee” (as opposed to a stationary employee with a fixed place of work), the scope of employment is much broader and the employee is entitled to a presumption of coverage while commuting, unless his actions at the time of injury were so foreign to and removed from his usual activities, as to constitute an abandonment of employment.
In Holler v. WCAB (Tri-Wire Engineering Solutions), the Claimant was employed as a cable technician, responsible for installing cable and network services at customers’ homes and businesses. He began each day by reporting to his employer’s facility, where he checked in, received his assignments for the day and picked up his equipment. He then spent the rest of the day traveling to and working at various customer locations. Employer allowed Claimant to take a company vehicle home each evening and then use it to return to work in the morning. Claimant was prohibited from using the vehicle for any purpose other than commuting or traveling between customer locations.
On the morning of August 13, 2010, on his usual commute to work, Claimant was seriously injured when his vehicle ran off the road and struck a utility pole. He was life-flighted to the hospital and was unable to return to work following the accident.
The WC Judge and Appeal Board both denied benefits, on the basis of the familiar “going and coming rule,” and since Section 301(c)(i) of the Act specifically states that injuries are not compensable if those “injuries [are] sustained while the employee is operating a motor vehicle provided by the employer if the employee is not otherwise in the course of employment at the time of injury.” However, the Commonwealth Court reversed and awarded benefits, noting that Claimant was more accurately described as a “traveling employee,” despite the fact that he briefly reported to the employer’s office each morning, before beginning to make his rounds. Accordingly, the “going and coming” rule was inapplicable and Claimant’s morning “commute” to the office was presumed to be part of his work and the resultant injuries compensable.
In Simko v. WCAB (U.S. Steel Corporation), the WC Judge awarded benefits for a severe brain injury sustained by Claimant, while he was commuting to the employer’s premises for a safety meeting. Claimant was a member of the safety committee and was required, on a monthly basis, to report to work one and one-half hours before the start of his regular shift. Attendance was mandatory and Claimant was paid for this time. Additionally, “stand-down” meetings were held less frequently, when serious accidents or fatalities would occur. Testimony established that on the morning of the accident, Claimant was heading into a combination monthly meeting/stand-down meeting.
The WC Judge held that although Claimant was a stationary employee and therefore subject to the “going and coming rule,” an exception to the rule exists for “special missions” that further the interests of the employer. Claimant was engaged in such a “special mission” when he left his home on the morning of the accident, to meet with management and other safety committee members for a “stand-down” meeting, prior to his regularly scheduled shift.
The Board and Commonwealth Court reversed, however, holding that meeting attendance is deemed to be a part of an employee’s regular work duties, and that traveling to or from such meetings is not a special mission. Also rejected, was Claimant’s argument that the “special circumstances” exception to the going and coming rule applied. In other words, Claimant argued that he was in fact furthering the interests of his employer by commuting to work for a meeting on workplace safety, which by definition promotes the employer’s safety goal. Once again, however, the Court noted that although attendance at such meetings may further the employer’s safety goal, it is still a part of Claimant’s regular work duties. Further, Claimant did not dispute that the safety meetings were treated as a part of his regular duties and pay, and that the meetings were held on the same premises where he performed his regular job as a strand operator.
If you have any questions or concerns as to whether an employee was truly in the “course and scope” of his or her employment, thus entitling the employee to payment of WC benefits, please contact Paul Clouser or Denise Elliott in our Lancaster office.