Workers Comp The Going and Coming Rule Another Viewpoint

Here’s what Tom Robinson, J.D., writer for Lexis Nexis Workers Comp Law Center reveals . . .
The “Going and Coming Rule” Applies Only to Workers Who Have a Fixed Place of Employment, BUT, once again it all depends on how courts interpret the law. (See WCK Blog “Can Traveling Healthcare Providers Receive Workers’ Compensation Benefits?”) https://blog.reduceyourworkerscomp.com/?p=412%20

Here’s What Happened
An employee worked as a photocopier salesman. He had an office in his home and generally traveled to clients’ places of business to discuss their photocopier needs. He sustained injuries in a motor vehicle accident that occurred while he was traveling from his home to his employer’s place of business. At the time of the accident, the employee had arranged to meet a prospective customer at the employer’s workplace in order that the employee could demonstrate a photocopier for the prospect.

The employee’s workers’ compensation claim was disallowed by the Bureau of Workers’ Compensation, and the decision was upheld by the Industrial Commission of Ohio. The employee sought further review from the trial court, which granted the employer’s summary judgment motion on the grounds that the employee’s claim was barred by the “coming-and-going” rule set forth in Ohio Rev. Code Ann. § 4123.01(C). The employee again appealed.

Here’s How the Court Ruled
The Court of Appeals (Sixth Appellate District), in Bennett v. Goodremont’s, Inc., 2009 Ohio 2920; 2009 Ohio App. LEXIS 2467 (June 19, 2009) disagreed with the trial court. The court first reiterated the rule within Ohio [Editor’s Note: and within most other jurisdictions]: that generally “an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Workers’ Compensation Fund because the requisite causal connection between injury and the employment does not exist.”

The court of appeals observed that the rationale underlying the rule is that workers’ compensation statutes contemplate only those hazards that are encountered by an employee in the discharge of employment duties, and not those hazards or risks that are encountered similarly by the public generally, such as those hazards or risks involved in travel to and from the place of employment. The court added that where traveling itself was part of the employment, either by virtue of the nature of the occupation or by virtue of the contract of employment, the employment situs is non-fixed, and the coming-and-going rule is, by definition, inapplicable.

The court concluded that the facts in the case, viewed in a light most favorable to the employee, demonstrated that he was a traveling salesman who did not commence his substantial employment duties only after arriving at a specific and identifiable work place designated by his employer. Rather, the traveling itself, to and from his clients’ places of business, was a fundamental part of his employment. On the basis of those facts, a reasonable factfinder might well conclude that the employee’s employment situs was non-fixed, in which case the coming-and-going rule would not apply to preclude recovery. Accordingly, the court of appeals reversed and remanded the case for a determination of the issues of fact. (workersxzcompxzkit).

WHAT???

Readers may have some natural difficulty distinguishing the facts in this case from those described in a recent blog (link above and see related to another June, 2009 Ohio decision, Gilham v. Cambridge Home Health Care, Inc., 2009 Ohio 2842, 2009 Ohio App. LEXIS 2400 (June 15, 2009).

In that case a home health care nurse operated out of her home and traveled each morning and afternoon to one of many patient residences designated by her employer. She sustained injuries in an auto accident as she traveled from one patient’s residence to another. The court found that she was a “fixed situs” employee and barred her claim under the going and coming rule. It appears that traveling from one patient’s residence to another’s is not part of the overall service being provided by the nurse, but traveling to demonstrate a copier is. Go figure.

See generally Larson’s Workers’ Compensation Law § 13.01[1], 14.01, 14.02

Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
http://law.lexisnexis.com/practiceareas/Workers-Compensation