Here at Malek & Malek, we represent workers who have been injured while either driving or as a passenger in a motor vehicle. For injured workers involved in motor vehicle accidents, Malek & Malek will pursue two different legal remedies on behalf of the injured worker, a workers’ compensation claim and a personal injury lawsuit. In this article we will be discussing how a motor vehicle accident can be a compensable work injury.
Before we Start: Course of Employment
Before we delve into workers’ compensation auto accident rules, to be a compensable injury, an injury must have occurred within the “course of employment.” An injury happens within the course of employment when the worker is injured performing the tasks he was hired to do. Let’s use a restaurant fry cook as an example:
WITHIN THE COURSE OF EMPLOYMENT
- Fry cook burns his hand on the grill
- Fry cook slips on grease walking back to the freezer to get frozen French fries, lands on his back and sustains a back sprain
- Fry cook suffers third-degree burns while cleaning the hot oil in an incorrect manner
- Fry cook lacerates his hand throwing our trash into dumpster, where there was a nice in the trash bag
NOT WITHIN THE COURSE OF EMPLOYMENT
- Fry cook trips and lands on his back during a smoke break
- Fry cook suffers a head contusion (bump on the head) while tossing frozen hamburgers back and forth with a fellow employee as part of a game
NOW THAT WE HAVE THAT OUT OF THE WAY, ONTO THE WORKERS’ COMP RULES THAT APPLY TO AUTO ACCIDENTS!!!
Rule 1: FIXED-SITUS V. NON FIXED-SITUS
The first component to consider when evaluating whether an auto accident is a compensable work injury is whether the employee is a fixed-situs employee or non-fixed situs employee. Situs is latin for place or location, therefore fixed-situs means a fixed place or location. A traditional fixed-situs is an office, a restaurant, or a store. The employee always goes to this place to work
Next questions is what if the employee goes to a different location to work every day. In Ohio, this temporary work site would be construed as a fixed-situs work site. For example, even though a roofer goes to a different job site each day, the temporary job site would be a fixed site.
A non-fixed situs employee would be an UPS Truck driver, taxi driver, an ambulance driver. Essentially someone whose job revolves around driving in a car or truck.
For the purposes of Ohio BWC, an fixed-situs employee involved in an auto accident while driving to his worksite implicates the “going and coming” rule. Thus the injury is not a compensable work injury.
Rule 2: GOING AND COMING
The next component to consider, is whether the “going and coming” rule is implicated. The “going and coming” rule only affects fixed-situs employees. The “going and coming rule” says that an auto accident is not “within the course of employment” and thus not a compensable work injury where the employee is going to work, or driving home after the work day is done. For example, I drive to work during the week at 6 AM. I’m a fixed-situs employee because I go to the same location every day, the office at 1227 S High St. Even though the only reason I’m on the road is because I’m driving to the office, it makes no difference, under the “going and coming” rule an my auto accident and related injuries would not be compensable work injuries. The same is true if I were involved in an auto accident driving home for the day.
Likewise, assume our roofer gets in an auto accident driving to the job site for the day. Likely not a compensable injury.
EXCEPTIONS TO THE “GOING AND COMING” RULE
Suppose an employee goes on an errand for his employer, and gets in an auto-accident. In this case the “going and coming” rule would not apply. Now suppose while performing an errand for the employer, the employee also takes care of personal matters, say picking up lunch. This would be a “dual-purpose” trip.
For instance, if an employee stops at a fast food joint along the route his employer wanted him to take in order to pick up lunch and in doing so he got into an accident, this may still be considered to be acting in their course of employment. However assume the employee goes clear across town, completely off the route of the errand, to get food at the hot, new restaurant, and he gets into an accident. At that point the overriding purpose of the trip/errand would be a personal one. Therefore the injuries sustained in the auto-accident would not be compensable.
The big case illustrating this exception involved an employee who was injured while driving to his place of work, a factory. Normally, as we have learned that under the “going and coming” rule this would not be a compensable injured. In the case however, the only entrance to the factory was off a highly congested road. The employee was rear-ended while waiting to turn into the factory. The court found that under the “special hazard” rule this was a compensable injury.
The “special hazard” rule has two parts: (1) the only reason the employee was in the location he was injured was because of his job; and (2) the risk to the employee is distinctive in nature or quantitatively greater than the risk to the public.
The rule does not apply when the employee created the special hazard. In our example, if there were safer ways to enter the factory, then the employee should have taken these safer options.
ZONE OF EMPLOYMENT
Another exception, essentially the “going and coming” rule will not apply where the employee is injured in an area controlled by the employer. This exception has been applied to parking lots of the employer. So far example, an employee may have a compensable injury where he gets in an auto accident in the parking lot of the big box store he is employed.
Hopefully we’ve shed some light on the interplay between the BWC and auto accidents. There are times when an accident is clearly not a compensable work injury, but there are other times when there is room for argument. The difference between getting a claim allowed or denied comes down to the facts of the case, the personal predilections of the hearing officer, and the arguments made by the attorneys of the employer and employee. The workers’ comp attorneys at Malek & Malek are well versed in the “coming and going” rule. Don’t hesitate to give us a call.