If you are injured while commuting to or from work, you generally cannot make a Workers’ Compensation claim. Commuting to and from work is not considered in the course of employment (“coming and going rule”). The following are exceptions to this general rule:

  • The employee has no fixed place of work;
  • The employment contract included transportation to and from work;
  • The employee is on special assignment for the employer; or
  • Special circumstances are such that the employee was furthering the business of the employer.

Whether or not an exception applies requires careful examination of the particular circumstances. If you have any questions of whether an exception applies, please contact our experienced Workers’ Compensation attorneys at Stark & Stark.

Please continue reading for more detailed examples.

 I.          No Fixed Place of Work Exception:

In determining whether a trip or commute is in the course and scope of employment, it is first necessary to define the status of the employee as either stationary (fixed) or traveling. The course of employment for a stationary employee is narrower, while that of a traveling employee is broader.

            Commuting Considered Within the Scope of Employment:

  • An employee held to be a stationary employee was on trip for employer and in the course of employment when traveling from one employer site to another.
  • Medical doctor was in the course of employment when injured while traveling between two fixed places of employment, as required by her job duties.
  • While traveling home with co-employees, a general laborer for a contractor suffered fatal injuries in an automobile accident. The employee had no fixed place of employment because he was instructed to bring his tools with him each time he returned home since he could be assigned to a different job site following the weekend.
  • A police officer commuting to work on motorcycle was injured when an oncoming vehicle made an illegal left turn in front of him. The officer testified that he had formed intent to arrest the individual after witnessing the left turn prior to impact.
  • The employee, a DER inspector, alleged he was injured while traveling to a hotel. The injury was held compensable because the claimant was a traveling employee.
  • A temporary employee of an agency does not have a fixed place of work, and thus, when traveling, is in the agency’s employment.

            Commuting Not Within Scope of Employment:

  • Home-health aide on long-term assignment to one patient and not paid for travel time and expenses.
  • Employee who had worked an exceptionally long shift and was injured in a motor vehicle accident when he fell asleep while on his way home to sleep, shower, and change between shifts did not qualify for benefits under any exception to the coming and going rule.
  • The fact that employee-decedent traveled between 3 and 4 jobs at a time to supervise projects without any evidence as to the frequency of his travel does not support a finding that employee did not have a fixed place of employment. Accordingly, the employee was not in the course of employment when returning to home using the company pickup truck at the end of the day.
  • Construction worker was injured in a company truck during lunch break away from the construction site.
  • Carpenter working for a period of 4 months at a construction site in a shopping mall had a fixed place of employment and his injuries were sustained while commuting from work.

II.        Transportation Included in Employment Contract Exception:

To satisfy the employment contract exception to the coming and going rule, the employee must satisfy two elements: the employee must provide that a travel allowance is related to the actual expense and time involved in the employee’s commute, and that the employer provided or controlled the means of the commute.

  • When a sales representative is provided with a vehicle as part of his or her employment package for use 24 hours a day without any restrictions, it falls within the employment contract exception to the coming and going rule.
  • For a contract to be deemed to include transportation to and from work, the travel allowance must be directly related to the expense or distance of the employee’s commute and the employer must provide or control the means of transportation used.

            Employment Relationships Deemed Not to Include Transportation:

Act 44 provides that injuries occurring while using a company car are not covered unless the employee is actually engaged in the course of employment.  The employment contract exception to the “coming and going rule” continues to be valid.

  • The fact that a per diem travel allowance is provided by the terms of a union bargaining agreement with the employer does not establish that the employment contract included transportation. An injury while commuting home is not in the course of employment.
  • When the employee was using a company car to commute to work and an accident occurred in front of the employer’s place of business, but not on the employer’s premises, the auto accident was not in the course of employment. Mere permission of an employee to use a company vehicle for personal use does not constitute providing transportation.
  • Employee’s voluntary use of a personal truck on the job site, use of gas credit card limited to gas expensed on the job site only, and payment of five dollars per day for use of the truck to haul material on the site did not place employee in the course of employment while commuting back home.
  • Although employee was using a company van on the way home from work, the injury was not in the course of employment because work had ended: providing transportation was not required and not normally offered.
  • Employee, who was paid for mileage, was required to use their personal car and was required to have special endorsement for insurance, showing their car was used for business, and carried a beeper so the employer could contact the employee while en route to work is in the course of employment while commuting to work.

III.       Special Missions, Assignments, or Circumstances Exception:

If an employee regularly attends a work-related monthly meeting away from the normal site of employment, the employee may not be on a special mission while returning home from that meeting and may not be in the course of employment.

An injury that occurred on the way home from a meeting with band parents was held compensable under the “special mission” doctrine because the event was not regularly held and was primarily intended for parents to meet the new band director and ensure the continuity of the program.

            Special Assignments:

  • An electrician who, while on call, takes a call from the supervisor to discuss an electrical problem at the employer’s plant is considered to be responding to an implied request to come to the plant, constitutes a special mission.
  • Employee, on the way home to eat a sandwich before going to evening appointment for the employer, was on a special mission.
  • An employee injured in a motor vehicle accident while traveling to a physical therapy session prescribed for a work-related injury was in the course of employment. Accordingly, injuries sustained in the motor vehicle accident are also compensable.

IV.       Special Circumstances/Social and Athletic Activities:

Employment-related social and athletic activities have been addressed in the following cases, which found the injury to be in the course of employment:

  • Off-duty transit police officer injured while running in a public park in order to meet employer’s physical fitness requirements.
  • An employer-run gym on premises that employees were encouraged but not required to use was held to be an activity in the course of employment;
  • A charity volleyball game was organized by an employer-sanctioned employee association and encouraged by the employer.
  • While engaged in a softball game on a company-sponsored team.
  • A social event held at the home of a co-employee may also place the employee in the course of employment, if the event fosters goodwill among co-employees and is held for a specific employer/company-related purpose.
  • Attendance at a company-sponsored picnic.

Social and Athletic Activities Not in the Course of Employment:

  • Injury suffered while traveling to employer’s family day picnic was not compensable where employee had choices of either reporting to work as usual and being paid, attending picnic with few restrictions, or being absent without pay.
  • The encouragement and support of a participant in the Police Olympics does not place employee in the course of employment if the event is not sponsored by employer.
  • The employee was denied benefits when injured crossing a public street on the way home after a social event held on employer’s premises.     

As you can see, the exceptions to the “coming and going” rule can be extremely complicated. If you have any questions of whether an exception applies, please contact our experienced Workers’ Compensation attorneys at Stark & Stark.