Demystifying the Going and Coming Rule (Workers’ Compensation)
The “going and coming” rule applies to the situation where a worker gets injured while on his or her way to or from work. Ordinarily, an injury sustained while a worker is going to or coming from work is not considered to have occurred “in the course of” employment and, therefore, is not compensable. The reason for the “going and coming” rule is that the relationship of employer and worker ordinarily is suspended from the time the worker leaves work to go home until he or she resumes work because, while going to or coming from work, the worker is rendering no service for the employer. Krushwitz v. McDonald’s Restaurants, 323 OR 526-27 (1996). However, multiple exceptions to this general rule are available, and you may very well still have a compensable claim.
Parking Lot Exception:
According to Larson, 1 Workmen’s Compensation Law, Section 15.42(b), 4-101 (1995), injuries that occur in employer-controlled parking lots are given the same status as those that occur on the main premises. In other words, they are compensable to the same degree they would be compensable on the employer’s main premises. So the law looks at parking lots as an extension of the employer’s main premises if there is control.
Traveling Employee Exception:
The course of employment of a traveling worker is much broader than that of an ordinary employee. A traveling employee is continuously within the course and scope of employment while traveling, except when the person has “engaged in a distinct departure on a personal errand.” Proctor v. SAIF, 123 Or App 326, 330 (1993); Slaughter v. SAIF, 60 Or App 610, 654 (1982). In determining whether a “distinct departure” occurred, the key question is whether the activity that resulted in the injury was “reasonably related” to the employee’s travel status. Savin Corp. v. McBride, 134 Or App 321, 325 (1995).
Who is a traveling employee? The Oregon courts have interpreted the definition of “traveling employee” very broadly. When an employee’s work entails travel away from an employer’s premises, the employee becomes a traveling employee, even if the travel is local and of limited duration. Id. at 323-26 (traveling employee’s work entailed driving to customers’ premises and returning home each evening; injury sustained while running a banking errand on the way home was compensable); PP & L v. Jacobsen, 121 Or App 260, 263, rev. den, 317 Or 583, 859 (1993) (traveling employee rule is not limited to employees who travel overnight). Moreover, a traveling employee need not be actually working when injured for the injury to be compensable. Sosnoski v. SAIF, 184 Or App 88, 93-95 (2002).
Special Errand Exception:
Professor Larson states the special errand exception as follows: “When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.” 1 Larson’s Workmen’s Compensation Law 4-204, § 16.11 (1995).
The “special errand” exception applies when an employee sustains an injury while off the employer’s premises, but while he or she was proceeding to perform, or while proceeding from the performance of, a special task or mission. Moreover, the exception is limited to “when either the employee was acting in the furtherance of the employer’s business at the time of the injury or the employer had a right to control the employee’s travel in some respect.” Ashely N. Schutz, 63 Van Natta 1179, 1182 (2011).
Employer’s Conveyance Exception (usually involves a car):
Under the “employer’s conveyance” exception, injuries sustained while the worker is traveling to or from a work site in a vehicle under the control of the employer have been found compensable. The exception does not require that the employer own or drive the vehicle. The focus of the inquiry is whether the employer was directing where the vehicle should go, or requiring the use of the vehicle. In Oregon, most “employer conveyance” cases do not involve “employer-owned” vehicles, but rather address instances where the employer required the claimant to use his or her personal car for work purposes. William A. Hedger, 58 Van Natta 1330, 1331 (2006).
Three questions to ask: (1) Did the employer exercise control over the vehicle? (2) Was claimant paid for her commute to work? (3) Did the employer derive any benefit from claimant’s commute to work in the company’s car?
In his treatise on workers’ compensation law, Professor Larson describes the “employer’s conveyance” rule as follows: “When the journey to or from work is made in the employer’s conveyance, the journey is in the course of employment, the reason being that the risks of the employment continue throughout the journey.” 1 Larson’s Workers’ Compensation Law § 15.00, 15-1 (2003). He explains, “If the trip to and from work is made in a * * * vehicle under the control of the employer, an injury during that trip is incurred in the course of employment.” Id.; see also Dehiya v. Spencer, 221 Or App 539, 546 (2008); Lorena Alvarez-Rubio, 61 Van Natta 1646, 1648 (2009). According to Professor Larson, the reason for this rule depends on the extension of risks by the employer’s control of the conditions of transportation. He further notes that the employer’s act of supplying a vehicle “is evidence of the status of the journey as part of the compensated employment.” See Larson’s § 15.01, 15-1, 15-2; see Dehiya, 221 Or App at 546. In Alvarez-Rubio, the Board noted that the exception has been recognized both in cases when the employer provided compensation for travel time and when the employer derived a benefit from the worker’s use of the company vehicle. 61 Van Natta at 1650-51.
Greater Hazard Exception:
The “greater hazard” exception to the “going and coming” rule applies “if the employee’s employment requires [the employee] to use an entrance or exit to or from work which exposes [the employee] to hazards in a greater degree than the common public.” Beaver v. The Mill Resort & Casino, 180 Or App 324, 328 (2002), citing Nelson v. Douglas Fir Plywood Co., 260 Or 53, 57 (1971).
Dual Purpose Exception:
One other exception is the dual purpose exception under which trips to or from the workplace serving both personal and business purposes may be compensable. 1 Larson’s Workers’ Compensation Law, Section 18.12 at 4–252 thru 4–267 (1985). However, if the accident happened after the business purpose had been completed and while claimant was on his way home, the injury would not be compensable. 1 Larson, supra, Section 19.24 at 4–344 thru 4–346; Gumbrecht v. SAIF, 21 Or App 389, 394 (1975).
Reasonable Interval Exception:
The course of employment, for employees having a fixed time and place of work, embraces a reasonable interval before and after official working hours while the employee is on the premises engaged in preparatory or incidental acts. The rule is not confined to activities that are necessary; it is sufficient if they can be said to be reasonably incidental to the work. What constitutes a reasonable interval depends not only on the length of time involved but also on the circumstances occasioning the interval and the nature of the employee’s activity.” 2 Larson’s Workers’ Compensation Law § 21.06(l)(a) (2003).
If reading about the “going and coming” rule made your head spin, you are not alone. Contact our experienced attorneys for advice and address additional questions you may have regarding your claim.
Please be advised the materials on this page are for informational purposes only and should not be interpreted as legal advice or opinion.