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Responsibility for employees injured while traveling for work can be murky

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Recent workers compensation cases involving traveling employees highlight the need for employers to implement clear and specific travel policies.

Travel cases are known to “turn on little nuances and facts,” said Robert Turner, senior attorney and shareholder at The Silvera Firm in Dallas. But a travel policy that clearly defines what activities are considered work-related and what aren't can help employers minimize potential exposures, he added.

In one, Barbara Pinkus v. Hartford Casualty Insurance Co., a Texas appellate court ruled in November that JVL Ventures L.L.C. employee Ron Pinkus, who died from injuries he sustained in a car accident while out of town on business, was not within the course and scope of his employment because he was driving to meet his son for dinner at the time.

Though Mr. Pinkus' transportation, lodging and reasonable meal expenses were covered by JVL Ventures, according to its travel expense policy, his “activity at the time of his injury did not originate in and was not in furtherance of his employer's business affairs,” court records show.

More often than not, claims by traveling workers that have to do with eating are covered under workers comp, but such cases “require a much different level of critical analysis than if someone slipped and fell walking down the hall in their office,” said Edward Canavan, Riverside, California-based vice president of workers compensation practice and compliance at Sedgwick Claims Management Services Inc.

Several recent cases that address traveling workers have focused on what a worker was doing when he or she was injured, Mr. Turner said.

Mr. Turner said most of his cases are won because an injury “relate(s) to or originate(s) in the employer's business and occur(s) in the furtherance of the affairs of the employer,” not because of exclusions such as “dual-purpose travel.”

Though Mrs. Pinkus argued that her husband was engaged in dual-purpose travel at the time of his accident, as the overall purpose of his trip was in the furtherance of his employer's affairs, he wasn't considered to be in the course and scope of his employment, so there was no need to discuss the exclusion, records show.

Sources said it's unlikely that the decision would be overturned on appeal.

Employees whose jobs extend beyond a single workplace, such as truckers and sales representatives, are more likely to get injured while traveling, sources added.

Such cases are common in Texas, with people in the oil industry working at remote locations, Mr. Turner said, adding that his office usually handles six to 12 traveling worker cases at any time.

On the other hand, Albert B. Randall Jr., Baltimore-based principal at law firm Franklin & Prokopik P.C., said his practice doesn't see many cases involving traveling workers, but those he does see “create a fair amount of appeals because there are some interesting issues at stake.”

Travel policies become especially important in cases involving employer-provided transportation, which is a common exception to the “going and coming” rule that states employees injured while commuting to or from work generally aren't entitled to workers comp, sources said.

Since employees are often seen as doing employers a favor by traveling for work, “it's difficult for the employer to impose too many restrictions on what the employee (can do) off the clock,” Mr. Randall said. What employers sometimes do “is simply have general parameters on what's expected of the employee,” which practically leaves “it up to the court system

as to determining what is compensable.”

Traveling employees provide a unique challenge for risk managers since they have little control over the work environment, Mr. Canavan said. For example, if a flight attendant on a layover checks into a hotel, the risk manager doesn't know whether there are special hazards in the room, he said.

What risk managers can do is make sure workers are aware of the typical kinds of injuries, such as fatigued driving among truckers, Mr. Canavan said. It's also possible to minimize exposures by clearly defining job duties, so workers know personal errands might not be in the course and scope of their employment, he added.

Employers should also find out what activities are likely to be considered within the course and scope of employment, sources said. A lot of times it's about whether an “activity was a significant enough deviation from the overall purpose of the trip to make it noncompensable,” Mr. Randall said.

In addition to clearly stating in a travel policy that all company policies apply whether in the office or on the road, many employers include a rule about not using mobile devices while driving, said Edwin Zalewski, human resources professional at J. J. Keller & Associates Inc. in Neenah, Wisconsin.