Workers Comp and the Going and Coming Rule
Workers Comp Attorney Kip Malek discusses the Going and Coming Rule in this video. But essentially the going and coming rule may apply to your situation if you get a worker injury on the road or at any location that isn’t your customary place of employment. The effect to you, is that if the going and coming rule is implicated in your factual situation, then your claim will be denied as a workers comp claim.
The case law that Kip discusses in the video is broken down in a more comprehensive manner below. Bottomline is if you are looking for the best workers comp attorney in Columbus, Ohio call Malek & Malek Law Firm and let one our attorneys help you navigate the workers compensation system for you. The going and coming rule is just one of the complicated legal rules that may come up in your case.
We offer a free consultation and there is no obligation that you sign with us as your attorney following this consultation. If you want the best workers comp attorney in Columbus give us a call or contact us today
Going and Coming Case Law
Fisher v. Mayfield, 49 Ohio St.3d 175, 1990
Claimant’s injuries must have both
- been sustained “in the course of employment”: time, place and circumstances of the injury
- “arising out of employment”: whether there is a casual connect between the injury and the employment. à apply Lord v. Daughtery “totality of the circumstances test”
Ruckman v. Cubby Drilling, 81 Ohio.st.3d 117, 1998
Fixed-Situs Test to determine whether the “Going and Coming” rules applies:
Focus is on whether the employee commences his substantial employment duties only after arriving at a specific and identifiable work place designated by his employer
The focus remains the same even though the employee may be reassigned to a different work place month, weekly, or even daily.
Despite periodic relocation of job sites, each particular job site may constitute a fixed place of employment
SPECIAL HAZARD RULE: If an employee’s injury occurs in the course of employment, yet fails the Lord Three part test for causation
A fixed situs employee may nevertheless demonstrate the required causal connection between employment and injury under the special hazard rule of causation
APPLICATION in CUBBY: Unlike typical fixed-situs employee, Cubby riggers did not know the location of future assignments, and it was impossible to fix their commute in relation to these remote work sites
HOLDING: fixed situs employees are entitled to workers’ compensation benefits for injuries while coming and going from or to his place of employment where the travel serves a function of the employer’s business and creates a risk that is distinctive in nature from or quantitatively greater than risks common to the public
When applying the Lord test the enumerated factors are not intended to be exhaustive and the totality of the circumstance may continue to evolve
Workers compensation cases are to a large extent very fact specific
As such no one test or analysis can be said to apply to each and every factual possibility
MTD Prods., Inc., 61 Ohio.St.3d 66, 1991
Exceptions to the fixed-situs “Going and Coming” rule:
- injury occurred within the “zone of employment.
- injury was sustained because of a “special hazard” created by the employmen.
- the “totality of the circumstances” surrounding the accident creates a causal connection between the injury and the employment
Lord v. Daughtery, 61 Ohio St.2d 441, 1981
“Totality of the Circumstances Test”
- Proximity of the scene of the accident to the place of employment
- degree of control the employer had over the scene of the accident
- benefit the employer received from the injured employee’s presence at the scene of the accident
Lippolt, 2008-Ohio-5070, Tenth District
Facts: claimant was regional manager, job required him to visit stores selling employers products. On the road. Was injured walking in the parking lot of motel. Found that totality of circumstances
“Traveling Employee” Doctrine
Persons employed as salesmen, servicemen, or insurance adjusters have no fixed place of employment, their place of employment is the area they service, the very nature of their employment requires them to go from place to place over the public highways, and the traveling to each place to work is necessarily in the course of their employment
Personal Errand
“an employee remains in the course of employment when traveling in connection with her or her employment except when the employee is on a personal errand”
Page 5: Ohio S. Ct has recognized that an employee’s commute to a fixed work site normally bears no meaningful relationship to his employment contract and serves no purposes of the employer’s business,
The general rule does not apply to an employee who travels to the premises owned by the employer’s customer – Ruckman
Cossin, 2012-Ohio-5664, Tenth District: “When the nature of an employee’s work requires him to travel from place to place, he is not a fixed-situs employee.”
To the extent claimant had a “place of employment” that place was in the homes of potential customers the company assigned him to visit and on the roads he was obligated by his employment to traverse to arrive at and return from those home
He was not on a personal errand that cause him to detour from that direct route, nor was he engaged in an activity that was a “highly personal act”
Ex. slipping on the bathroom floor of his hotel room after taking a shower
OSHS benefited from claimant’s presence on public roads and highways
Its business was dependent upon in-person examinations of the basements of potential customers
Those examinations could only be performed by employees who traveled to them
Bonedry Waterproofing, 2016-Ohio-3341, tenth District
- Facts: Day off, had brother with him, went to job headquarters to pick up paycheck
- Employer told claimant that there were three jobs for him, claimant drove back home to pick up paintbrushes, got in an accident on the way
- Did not need to store paint brushes at his house, only did so for his convenience, could have picked them up from the store and been re-imbursed or driven to bone dry to pick up paintbrushes
- Storing paint brushes at his home was not part of his “substantial employment duties” when examining the employees duties as a whole , he commences his substantial employment duties only when he arrives at the job site
- Dissent felt that trial erred in granting summary judgment, a trier of fact could determine that claimant could be determined to not be found a fixed-situs employee
- Furthermore, even if fixed-situs, trier of fact could determine that consistent with ruckman traveling to the premise of a customer of the employer generally serves a purpose of the employer’s business
Gwendolyn v. Cambridge Home Health Care, 2009-Ohio-2842, Firth District
Facts: home health aide, after visiting first patient’s house, head to house of second patient, stopped to pickup a sandwich, three miles from first patient’s house involved in MVA
Found under totality of circumstances test not applicable
Employer exercised no control over scene of accident/employee’s presence at the scene of accident served no benefit to the employer
Dissent:
“while it is clear the employer had no control over the scene of the accident, it seems equally clear to me the employer the employer does benefit by the IW’s ability to travel from one client to another in the same workday
Claimant was injured in a pursuit or undertaking consistent with her contract of hire which in some logical manner pertains to or is incidental to her employment