AP Renders Decision that Salesman’s MVA is Compensable

The appeals panel has reversed the decision of a hearing officer and rendered a decision holding that a traveling salesman was in the course and scope of his employment when injured in a motor vehicle accident after he had he left his last sales call for the day and was driving home (as the hearing officer impliedly found as a matter of fact). The appeals panel posted its decision in Appeals Panel Decision No. 150877 on August 27, 2015.

Factually, the appeals panel described the case as follows:

The claimant testified that his job is to travel to businesses, such as convenience stores, in a company owned vehicle to obtain and place orders for merchandise. The claimant testified that the employer provided him via email with a list of business contacts for him to travel to. Also, the claimant testified that he kept the company owned vehicle at his home, and he traveled from his home to the business contacts provided by his employer. The employer’s chief operating officer (COO) testified that the claimant’s job was that of a traveling accounts manager. The COO testified that he created route schedules for the claimant to physically drive to the business contacts. The COO testified that the company owned vehicle was kept at the claimant’s home for transportation to and from work for business purposes only.

The evidence reflects that prior to the date of injury of (date of injury), the claimant had made an arrangement with his supervisor requesting help in obtaining an order from a business on his contact list. On (date of injury), the claimant traveled to and obtained orders from all the businesses on his contact list with the exception of one business which his supervisor had agreed to help with obtaining an order. The claimant testified that after he left the premises of a business on his contact list, he proceeded to drive to the employer’s premises. There was conflicting evidence as to whether the claimant was in route to the employer’s premises or whether he was in route to his home.

The appeals panel acknowledged that the record contained conflicting evidence of whether the claimant was traveling to the employer’s premises or to his home at the time of his accident. Moreover, the appeals panel conceded that the hearing officer had found that the claimant was not furthering the affairs of the employer at the time of the accident, “which implies that the hearing officer was persuaded that the claimant was traveling to his home, rather than the employer’s premises.”

In spite of this factual determination by the hearing officer, the appeals panel wrote that “given the nature of the claimant’s employment and the terms of his employment as a traveling salesman, this is not a straightforward case which involves the coming and going rule.”

The appeals panel refused to apply the “coming and going rule” which excludes travel to and from home from the course and scope of employment, writing, “given the nature of the claimant’s employment and the terms of his employment as a traveling salesman, this is not a straightforward case which involves the coming and going rule.” Instead, the panel wrote:

In this case, the hearing officer determined that the claimant was not on a special mission at the time of the MVA. However, as discussed in [Jecker v. W. Alliance Ins. Co., 369 S.W.2d 776, 778 (Tex. 1963), overruled on other grounds by McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964)], there are work situations where the terms of the employment requires the employee to proceed from one place to another. Under the facts of this case, the claimant’s terms of employment as a traveling salesman required that he travel to businesses to obtain and place orders throughout his day. At the time of the claimant’s MVA, the claimant acted both in furtherance of his employer’s business and in performance of duties imposed by his employment as a traveling salesman. Therefore, the claimant was in the course and scope of his employment at the time of his MVA on (date of injury).

Essentially, the appeals panel has now held as a matter of law that an employee whose job duties require him to travel from one place to another place is in the course and scope of employment even when he is not traveling from one place to another place but is, instead, traveling from one work location to his home. Stated differently, it appeals that the appeals panel has refused, as a matter of law, to apply the coming and going rule to accidents sustained by employees, whose very nature of employment required travel from one place to another throughout the day. This is the latest in a series of cases demonstrating the erosion of the coming and going rule in Texas.