AP Concludes that Coming & Going Case is Not Compensable: Reverses ALJ
The appeals panel has reversed a contested case hearing decision and order issued by an Administrative Law Judge who had determined that a claimant was injured in the course and scope of employment when traveling to work. The appeals panel rendered a decision that the claimant’s injuries fell outside the course and scope of his employment.
The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 200798, decided May 24, 2020.
The claimant worked as the only mechanic for the employer and took care of the employer’s rental units and equipment for use in oilfields. He typically reported to work each day to the employer’s yard at 7:00 a.m. However, during the weekend prior to his accident, claimant had been contacted by the shop foreman and instructed to arrive at the yard early on Monday. The claimant testified that he was told that a rig was going out early that day, and he had to be there to turn on the lights at the shop.
While driving to the shop on Monday morning at approximately 5:00 a.m., the claimant was involved in a motor vehicle accident when the company truck he was driving rear-ended a semi-trailer truck. The claimant suffered multiple injuries, including facial fractures, rib fractures, a cervical fracture, and thumb fractures.
Under the employer’s employment policy employees are only paid from the time they arrive at work until they leave for the day. They are not paid for driving to and from work.
The ALJ wrote that the evidence was sufficient to establish that claimant was directed by his supervisor to arrive early at work, and he was doing as he was instructed at the time of the MVA. Therefore, the ALJ determined that the claimant was in the course and scope of employment at the time of the MVA.
The appeals panel disagreed, observing that the general rule is that an injury occurring in the use of public streets or highways in going to and returning from the place of employment is not compensable. The panel wrote that this rule is known as the “coming and going” rule. The rationale of the rule is that “in most instances such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer.” The exception to the coming and going rule in Section 401.011(12)(A)(iii) is referred to as the “special mission” exception where the employee is directed as part of the employment to proceed from one place to another.
The question then, is whether the claimant’s travel to work for an earlier start time constituted a special mission. The appeals panel concluded that it did not, relying upon the Texas Supreme Court decision in Evans v. Illinois Employers Ins. of Wausau, 790 S.W.2d 302 (Tex. 1990).
In Evans, the employee had been instructed by his supervisor to attend a safety meeting at a different location and different time than his normal duty location and starting time. The employee’s pay was to begin when he arrived at the safety meeting. On the way to the safety meeting the employee was in a MVA and was killed. The court held that “since neither [Evans and another employee] of them had begun work their injuries fall squarely within the ‘coming and going’ rule.” The court further noted that though the claimants asserted that the earlier starting time tended to prove that this was a special mission, a time change alone has been held insufficient to transform a trip into a special mission.
Applying the holding in Evans to the facts in this case, the appeals panel wrote:
Similarly, in the present case, the claimant was still driving to work when the MVA occurred, and his workday had not yet begun. The fact that the claimant had been instructed to get to the yard earlier than normal does not establish that the claimant was in the course and scope of employment. Therefore, we hold that the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), to be incorrect as a matter of law. We accordingly reverse the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), and render a new decision that the claimant did not sustain a compensable injury on (date of injury).
The appeals panel also reversed the ALJ’s determination that the claimant had suffered disability because there can be no disability without the existence of a compensable injury.
FOLIO
