THE “GOING & COMING” RULE
UNDERSTANDING MY WORKERS’ COMPENSATION EXPOSURE

Do you know about workers compensation exposure for employees who drive company vehicles to and from work? Though there are many variables that may affect the compensability of these claims, I will attempt to address the key determining factors. Let’s begin by testing your Workers Compensation IQ with this scenario:

Eddie, Stanley, and Nix (all hourly employees) were involved in an automobile accident on their way to work on a construction project. Eddie and Stanley were badly injured, and Nix was killed. Eddie was the job superintendent, and routinely gave Stanley and Nix a ride to the jobsite. Eddie had been provided a company truck for transportation to and from his two previous projects, but not the project they were en route to when the accident happened. For this project, Eddie was being paid $.22 per mile for travel to and from the jobsite. At the time of this accident, the three employees were passengers in Nix’s personal vehicle. During the investigation, it was learned that for this job, Eddie and Nix would alternate driving their vehicles, and that on the days Nix drove, Eddie used his personal credit card to purchase Nix’s gasoline.

Does this fall within the course and scope of employment? Were the passengers of this vehicle entitled to workers compensation benefits? Hopefully the information below will help prepare you for the test we will have later.

The “Going and Coming” rule, as it is commonly referred to, is basically the same in both North and South Carolina, however North Carolina’s Workers Compensation Statute appears to be less inclusive as to what is considered compensable.

In both jurisdictions, injuries sustained while traveling to and from work are generally NOT compensable. Employees generally are not covered by workers compensation until they actually reach the employer’s premises or designated worksite. South Carolina’s Statute lists five exceptions to this general rule:

1. Where in going to and returning from work, the means of transportation is provided by the employer, or the time consumed is paid by the employer or included in the wages…
2. Where the employee, while traveling to and from work, is still charged with some duty or task in connection with his employment…
3. The way used is inherently dangerous and is either (a) the sole means of ingress and egress to and from work or (b) constructed and maintained by the employer…
4. The place of injury is brought within the course and scope of employment by express or implied requirement for its use in the contract of employment in traveling to or from work…
5. The employee sustains an injury while performing a special task, mission, or errand for his employer, either before or after usual working hours or on weekends or days off.

The North Carolina Statute lists three exceptions to the general rule:

1. When the injury occurs on the employer’s premises…
2. When the injury occurs during the employee’s performance of a special errand for the employer…
3. When the employer either arranges transportation pursuant to an employment contract or the employer compensates the employee for his transportation costs to and from work.

With these exceptions though, you must bear in mind that the South Carolina Workers Compensation Act states the following: “The court is committed to liberal construction of the Act to include injured workmen within its protection rather than exclude them.” There is a similar caveat in the North Carolina Act. Basically, what this means is that if the employee can in any way connect his accident (or the location of the accident) to his employment, he will be eligible for benefits.

This includes travel between the employee’s home and a worksite IF in a company vehicle or if paid for his travel or charged with any duty or task, which could include transporting co-workers to or from work. Additionally, all passengers of the vehicle under such circumstances would be eligible for benefits.

Here is a hint that may help you with the answer to our scenario. The aforementioned “liberal construction of the act”, actually resulted in the award of benefits to a salaried employee who was fatally injured on his way home from a business meeting. Benefits were awarded on the grounds that the employee’s car contained business material that he intended to deliver to a customer on the following day. The Court held that because the employee had company documents in his possession, and that he planned to deliver these the following day, he was considered as still charged with a duty or task of his employment. I would expect the same outcome in North Carolina.

Now, lets get back to our scenario, and have a show of hands as to who thinks these employees were covered by the Act. Those of you who raised your hands were absolutely correct. In this case, the S.C. Court of Appeals basically ruled that since Eddie was paid mileage for transportation to and from the jobsite, and in turn bought Nix’s gas in exchange for Nix providing this transport, all employees were brought within course and scope of their employment. As you can see, all it takes is a spider-web thin link. The “powers that be” are really good at liberal construction!

What does this mean for you? It means that if you have employees who drive company vehicles OR are paid time or mileage for use of their personal vehicle for company business, they would in all likelihood be entitled to benefits if injured while operating these vehicles. I would even be willing to go out on a limb and say benefits could possibly be awarded if an employee is injured while operating a company vehicle for personal reasons. It has happened.

You can limit this exposure by implementing and maintaining a good driver safety program. This includes obtaining regular MVR’s for all drivers, and training/educating your employees on defensive driving and other road related topics. You should also have clear, documented, and enforced rules as to the use of company vehicles. The National Safety Council has a great website with information on driver safety and useful links. This website is located at www.nsc.org/issues/drivsafe.htm. Members of the South Carolina Forestry Association are encouraged to contact Vince Bond at Safeco Products, Inc. for information on driver safety.