Workers’ Comp and the Going and Coming Rule
In this video, workers’ comp attorney Kip Malek explains the Going and Coming Rule.
Here’s the short version. The rule may apply if you were hurt on the road or anywhere other than your usual workplace. If it applies to your case, your workers’ comp claim can be denied.
Below, we break down the case law Kip covers in the video in more detail.
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Going and Coming Rule: Ohio Case Law
Fisher v. Mayfield, 49 Ohio St.3d 175 (1990)
To qualify, a worker’s injury must meet two tests:
- “In the course of employment”: This looks at the time, place, and circumstances of the injury.
- “Arising out of employment”: This asks whether there’s a causal link between the injury and the job. Courts apply the “totality of the circumstances” test from Lord v. Daugherty.
Ruckman v. Cubby Drilling, 81 Ohio St.3d 117 (1998)
This case set the fixed-situs test. It decides whether the Going and Coming Rule applies.
- The key question: does the employee start their main job duties only after arriving at a specific work site chosen by the employer?
- That focus stays the same even if the employee is moved to a new site monthly, weekly, or daily.
- Even when job sites change, each site can still count as a fixed place of employment.
Special Hazard Rule: Sometimes an injury happens in the course of employment but fails the three-part Lord test for causation. A fixed-situs employee may still prove the link between the job and the injury under the special hazard rule.
How it applied in Cubby: Cubby’s riggers were not typical fixed-situs workers. They didn’t know where future jobs would be. Because the sites were remote, their commute could not be fixed in advance.
Holding: Fixed-situs employees can get workers’ comp benefits for injuries while traveling to or from work when:
- The travel serves the employer’s business, and
- The travel creates a risk that is different from, or greater than, the risks the public faces.
The court also noted:
- The Lord factors are not a complete list. The totality of the circumstances test may keep evolving.
- Workers’ comp cases depend heavily on the facts.
- No single test fits every situation.
MTD Prods., Inc., 61 Ohio St.3d 66 (1991)
There are three exceptions to the fixed-situs Going and Coming Rule:
- The injury happened within the “zone of employment.”
- The injury was caused by a “special hazard” created by the job.
- The “totality of the circumstances” shows a causal link between the injury and the job.
Lord v. Daugherty, 61 Ohio St.2d 441 (1981)
This case created the “totality of the circumstances” test. Courts look at:
- How close the accident was to the workplace
- How much control the employer had over the accident scene
- How much the employer benefited from the employee being at the scene
Lippolt, 2008-Ohio-5070 (Tenth District)
Facts: The claimant was a regional manager. His job required him to travel to stores that sold his employer’s products. He was hurt while walking in a motel parking lot. The court applied the totality of circumstances test.
The “Traveling Employee” Doctrine
Some workers, like salespeople, service workers, and insurance adjusters, have no fixed workplace. Their workplace is the area they serve. Their job requires them to travel from place to place on public roads. That travel is part of their employment.
Personal Errands
An employee stays in the course of employment while traveling for work. The exception is when the employee is on a personal errand.
The Ohio Supreme Court has said that a commute to a fixed work site usually has no real link to the job. It doesn’t serve the employer’s business.
But under Ruckman, that general rule does not apply when an employee travels to property owned by the employer’s customer.
Cossin, 2012-Ohio-5664 (Tenth District)
The court held that if a job requires travel from place to place, the employee is not fixed-situs.
- The claimant’s “workplace” was the homes of potential customers he was assigned to visit. It also included the roads he had to take to get there and back.
- He was not on a personal errand that pulled him off his direct route.
- He was not doing a “highly personal act,” such as slipping on a hotel bathroom floor after a shower.
- The employer (OSHS) benefited from his time on public roads.
- Its business depended on in-person basement inspections at customers’ homes.
- Only employees who traveled to those homes could do that work.
Bonedry Waterproofing, 2016-Ohio-3341 (Tenth District)
Facts:
- On his day off, the claimant drove with his brother to company headquarters to pick up his paycheck.
- His employer told him there were three jobs for him.
- He drove home to get paintbrushes and was in an accident on the way.
- He didn’t need to keep paintbrushes at home. He did so for his own convenience. He could have bought them at a store and been reimbursed, or picked them up at Bonedry.
Ruling: Storing paintbrushes at home was not part of his “substantial employment duties.” Looking at his duties as a whole, he started his main work only when he arrived at the job site.
Dissent: The dissent felt the trial court was wrong to grant summary judgment.
- A jury could find the claimant was not a fixed-situs employee.
- Even if he was, a jury could find that, under Ruckman, traveling to a customer’s property generally serves the employer’s business.
Gwendolyn v. Cambridge Home Health Care, 2009-Ohio-2842 (Fifth District)
Facts: The claimant was a home health aide. After seeing her first patient, she headed to her second patient’s home. She stopped for a sandwich. About three miles from the first patient’s home, she was in a car accident.
Ruling: Under the totality of circumstances test, the claim did not apply.
- The employer had no control over the accident scene.
- Her presence at the scene did not benefit the employer.
Dissent:
- The employer clearly had no control over the scene.
- But the employer did benefit from her ability to travel between clients in the same workday.
- She was hurt while doing something consistent with her job, and logically connected or incidental to her work.
Flags for you:
- Fixed “Daughtery” → “Daugherty” (correct case name), “casual” → “causal,” “Firth” → “Fifth.”
- Original Lippolt line was cut off (“Found that totality of circumstances”). I wrote it as “applied the test” — confirm the actual outcome before publishing.
- Moved the CTA paragraph under its own H2 so the intro reads cleaner. Move it back if you want it untouched