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Workers compensation ruling highlights exposure to commuter risks

Employer liable for injuries suffered en route to work

Workers compensation ruling highlights exposure to commuter risks

Workers in all states who are injured while commuting to or from their jobs typically are not entitled to workers compensation under the “going and coming” rule, but employers would be wise to defend themselves against exceptions.

Common exceptions, experts say, include employees driving company-owned vehicles to work and those on “special missions,” such as when they take on unusual duties or aren't reporting to work at their typical location or time.

It was the company-owned vehicle exception that led the Mississippi Court of Appeals on Sept. 30 to vote 7-1 to award workers comp benefits to a technician for an industrial gas supplier who suffered a back injury in a 2010 vehicle accident, according to court records.

Technician Larry Edmonds, who worked for Linde Gas USA L.L.C., had the accident when speeding in a company-owned vehicle on little sleep, with the headlights off, without a seat belt on, after taking pain medication for a previous back injury. Linde Gas in Columbus, Mississippi, and Zurich American Insurance Co. were not protected by the going and coming rule, the Mississippi appellate court said in its decision.

This case is “an extreme example, but unfortunately, extreme examples end up becoming case law,” said David Barry, senior vice president and national technical director of casualty risk control at brokerage Willis North America Inc.

Mississippi employers assume “the hazard associated with an employee traveling to and from work when the employer either provides an employee's means of transportation or pays the employee's transportation costs,” according to the state appellate court ruling.

Experts say the same would be true for employers in most states, particularly in those such as New York with reputations of being plaintiff-friendly.

Greg Lois, a partner at law firm Weber Gallagher Simpson Stapleton Fires & Newby L.L.P. in New York, said he can recall a number of going and coming cases in New York in which employees have been entitled to workers comp benefits because of such exceptions.

The special mission exception is particularly common, Mr. Lois said, adding that, as an attorney, even trips from his home to court could be compensable if he were injured.

Going and coming cases have become more frequent because once “you have one case that settles, it's kind of a domino effect,” said Rich Bleser, senior vice president and fleet safety specialty practice leader at Marsh Risk Consulting, a unit of Marsh L.L.C., in Milwaukee.

In some cases, an employer's good intentions “come back to haunt them,” Mr. Bleser said.

Mr. Bleser recalled a case in which an employee who was injured while driving his vehicle pulling a company-owned trailer was awarded workers comp benefits. Rather than dropping the trailer off the night before, the employer allowed the worker to go straight home and return the trailer the next morning.

“It comes down to a judgment call. You have to weigh the risks and understand that it may be deemed work time as they're driving in the next morning,” Mr. Bleser said. “We tell (employers) they need to actually have their employees start out and end their day at the normal work facility as much as possible.”

Employers can defend themselves against exceptions to the going-and-coming rule by conducting vehicle inspections, making sure workers have valid driver's licenses, and devising written guidelines and policies, Mr. Barry said.

“By restricting the parameters of what is acceptable use of the vehicles and restricting who is an acceptable driver of the vehicles, companies are starting to put these rules in place to help protect themselves and, ultimately, I think protect their employees,” he said.

Some employers have put a formal process in place for workers who are dispatched for service calls from their homes, Mr. Barry said. Having workers call and check in when they leave and arrive, noting the current time and mileage, can be helpful to employers should a case arise, he said.

“What you have to be careful of is if on the way if they stop somewhere and do a personal errand,” Mr. Barry said. “It could definitely muddy the waters.”

This is common at retailers that ask employees to save close parking spots for customers. “Once we tell the employees where they have to park their cars, then that extra walk they have to do isn't their regular commute anymore because we controlled it,” Mr. Lois said.

“Some of these errors or the simple negligence of your employees cannot be planned away,” he said. “The typical goings and comings that I see — the slip in the icy parking lot or the car accident on the way to the location — simply can't be avoided. It's about accident prevention and safety ... not really about preparing a legal defense.”