I Understand That I'm Generally Not Covered by Workers' Comp if I'm Injured During My Work Commute . . . But You Said There Are Exceptions. Fill Me In!
Last week in this blog, we explained that if you are injured while commuting to work, generally speaking, you are not covered under workers’ comp due to the “coming-and-going” rule—unless an exception applies. What are the exceptions?
First, a quick recap in case you missed last week’s post: The “coming-and-going” rule is a tool used to determine whether an injury suffered by an employee in a traffic accident occurred “in the course of” and “arises out of” the employment relationship, so as to constitute a compensable injury. As a general rule, an employee with a fixed place of employment (called “fixed-situs”) who is injured while traveling to or from that place of employment is not entitled to participate in the Workers’ Compensation Fund because the required “causal” connection between injury and the employment does not exist.
So, in what circumstances does it exist?
Exceptions fall under two basic “tests” that take into consideration the “totality of the circumstances” and “special hazards.” If one of these exceptions applies, the injuries could be considered compensable even though they occurred while traveling.
Totality of Circumstances
Under the totality of circumstances, the court considers just that: “The totality of the facts and circumstances surrounding the accident”, including:
- The proximity of the scene of the accident to the place of employment
- The degree of control the employer had over the scene of the accident
- The benefit the employer received from the injured employee’s presence at the scene of the accident.
Special Hazard or Risk
The “special hazard or risk” rule determines whether the person’s employment created a “special hazard”, thereby entitling that person to workers’ compensation benefits if he or she sustains injuries because of that hazard. The rule applies in cases where 1) “but for” the employment, the employee would not have been at the location where the injury occurred, and 2) the risk is distinctive in nature or quantitatively greater than the risk common to the public.
Let’s look at the case of Paul, who was injured in a car accident. He was leaving his job one day after there had been a huge snowstorm. His employer did not plow or salt their driveway. Paul’s car slid down the driveway and into a busy intersection. Paul’s accident did not take place on his employer’s property, but it was caused by the employer’s failure to plow and salt the driveway. Because of these factors, we were able to win Paul’s case and help him receive the benefits to which he was entitled.