The Traveling Employee: C&S or Not?

Thomas A. Robinson recently discussed an Oregon case, where the Court of Appeals considered a claim involving a Coos Bay resident who had been temporarily working some distance away in Newport. Beaudry, the employee, was killed in an automobile accident as he and a co-employee returned to their Newport hotel following a Christmas shopping excursion. The question presented is whether the employee had been injured in the course and scope of his employment. The court ruled that the employee’s surviving spouse was not entitled to workers’ compensation death benefits. Beaudry v. SAIF Corp., 2017 Ore. App. LEXIS 1179 (Oct. 4, 2017). Robinson concludes that the court was correct, relying upon the reasoning found in the treatise of a national commentator, Professor Larson.

Quoting extensively from Larson, the Court of Appeals agreed with the board, stressing that although certain activities of a personal nature are considered to be within the course of employment of a traveling employee, the activity still must bear some reasonable relationship to the worker’s traveling-employee status. Personal activities, such as sleeping and eating, arising from the necessity of travel fall within the course of employment.
The Court continued, noting there was no dispute that co-employees’ trip to Philomath was a personal errand that did not itself bear any relation to the employment. The surviving spouse’s only assertion was that the shopping trip was a leisure activity that was reasonably anticipated because employees were permitted to use company vehicles for personal errands. The Court indicated that the fact that an employer permitted an activity did not mean that it was compensably related to the employee’s traveling status.

The result in Texas is likely to be the same. The Texas rule for out-of-town injuries was announced by the Texas Supreme Court in Shelton v. Standard Insurance Company, 389 S.W.2d 290 (Tex. 1965). The court stated a general rule that an employee, whose work entails travel away from the employer’s premises, is considered to be in the course of his employment when the injury has its origin in a risk created by the necessity of sleeping or eating away from home, except when a distinct departure on a personal errand is shown. Some courts have referred to the Shelton rule as the “continuous coverage doctrine.” However, Texas cases make clear that coverage is not “continuous” during out of town travel. The Shelton opinion does not use the term “continuous coverage.”

Shelton had been hired to drive a truck from Abilene, Texas to Wichita, Kansas by way of Dallas, Texas and return. He started from Abilene but before reaching Dallas the truck he was driving broke down west of Fort Worth. This delayed him by several hours. He checked into a motel in Dallas for the night. After showering and changing clothes, Shelton started to walk across the highway to a restaurant to eat his supper. While walking across the highway he was hit by an automobile and seriously injured.

The court found that Shelton was not engaged in a distinct departure on a personal errand at the time of his accident. The court held that Shelton’s injury was received while in the course of his employment. The court reasoned that Shelton’s work entailed travel away from the employer’s premises and his injury had its origin in a risk created by the necessity of sleeping or eating away from home.