Monday, October 27, 2008

The Coming and Going Rule

If I get hurt driving to or from work, can I get Workers’ Compensation Benefits?

The Coming and Going Rule
By Daniel E. McCabe, Esq.
Wolf, Baldwin & Associates, P.C.

Employees in Pennsylvania often inquire about whether workers’ compensation benefits are payable if they are injured while on the way to or from work. In general, employees injured while commuting to or from work will not be eligible for workers’ compensation benefits. In workers’ compensation parlance this concept is known as “the coming and going rule.” However, there are several exceptions to this rule of thumb. This article will explore some exceptions and the various considerations that employees and employers should consider in these situations.

The exceptions to the coming and going rule fall in four general categories:

(1) the employee has no fixed place of work (i.e. a “traveling employee”); (2) the employment contract includes transportation to and from work; (3) the employee is on a special assignment for the employer; and (4) special circumstances are such that the employee was furthering the business of the employer while commuting.
The typical situation occurs when an employee gets in a car accident on the way to work. Unless the employee is considered a “traveling employee” the courts will generally rule that no workers’ compensation will be due because that employee is not yet in the course and scope of employment. The most succinct judicial summary of the law relating to the course of employment appears in W.C.A.B. (Slugenhaupt) v. U.S. Steel Corp., 376 A.2d 271 (Pa.Cmwlth. 1977). In that case the Commonwealth Court outlined the following:

Injuries may be sustained in the course of employment in two distinct situations: (1) where the employee, whether on or of the employer’s premises, is injured while actually engaged in the furtherance of the employer’s business or affairs, or (2) where the employee although not actually engaged in the furtherance of the employer’s business affairs (a) is on the premises occupied or under the control of the employer, or upon which the employer’s business or affairs are being carried on; (b) is required by the nature of his employment to be present on his employer’s premises; and (c) sustains injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon.

The case law regarding the definition of “furtherance of employer’s business” is extensive; however, generally, when an employee merely commuting to or from work is not furthering the employer’s business. On the other hand, if the employee is a “traveling employee” then the course of employment is much broader. The question of whether an employee is a “traveling employee” is generally defined by whether the employee has a fixed office that he or she goes to every day. If not, the employee is considered a traveling employee. An example would be a cable repair person. If he or she travels straight from home to a customer’s home and only checks in with the office on occasion, the employee is most likely be a traveling employee. Further, if that employee were to get hurt on the way to his or her first job, the injury would fall outside of the “coming and going” rule, and be compensable.

The more difficult question arises in situations where it is unclear whether the employee is truly a traveling employee. For example, in the above situation, if the cable repairman had to travel to a main office every day before proceeding out to travel for the entire day, would he be considered a “traveling employee?” What if he drives a company work van every day? What if that van has the company logo and phone number on the outside? The law gets a little grey in these situations. Technically the employee is reporting to a fixed office, but he spends nearly the entire day on the road, and frequently must report directly to customers’ residences. Further, he drives a van with a logo and phone number, and arguably is furthering the employer’s business by advertising every time he drives. Plus, if the employee can not use the van for any other purpose but work (as part of his employment contract), it could be argued that the second he steps in the van, he is furthering the employer’s business because it is being used for work purposes only, especially if there is a contract for employment governing the use of the vehicle.

For a traveling employee to be denied benefits based on the coming and going rule the employer must show a distinct break in the employment duties. Pfizer, Inc.v. WCAB (Gresham), 568 A. 2d 286 (Pa. Cmwlth. 1989). Thus, for a traveling employee, if an accident occurs on en route to vacation, but before a telephone call into the office it could be found compensable. However, if that same employee stops at a store to pick up food or other non-work related items before traveling home, he may be found to have broken from his trip home enough to be considered outside of the furtherance of the employer’s business.

An employee might be considered on a “special assignment” and could be in the scope of employment even though normally the coming and going rule might apply. For example, an employee injured on the way home to have dinner before attending an evening appointment for an employer was considered in the course of employment under the special mission exception to the “coming and going” rule. The court found that his work duties had not ended that day because of the evening appointment.
The case law in this area is extensive, and this article covers the general rules as well as the general exceptions. If an employee or employer were to presented with this type of issue it is vital to discuss it with an attorney who is well versed in Pennsylvania workers’ compensation law.

Daniel E. McCabe, Esq., is an associate in the law firm of Wolf, Baldwin & Associates, P.C.. His practice, located in the firm’s West Chester office, concentrates on the representation of injured workers and medical providers. He can be reached by phone at 610-436-8300, or by e-mail at

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Friday, October 17, 2008

Specific Loss Benefits in the Pennsylvania Workers’ Compensation System

Most employers and employees know that if a worker is injured on the job, he or she is entitled to benefits for lost wages in addition to medical treatment related to the injury. But many people do not realize that there is a subset of wage loss benefits, called “specific loss” benefits, that are payable to injured workers even if they do not miss any significant time from work after their injury.

Specific loss worker's compensation benefits are available for amputations or injuries resulting in the permanent “loss of use” of a certain body part “for all practical intents and purposes.” This latter phrase is defined as a loss more severe than one that would allow the injured worker to use the injured body part in his or her employment. It does not mean that the body part is completely useless. The determination of “loss of use” is a question of fact for a Workers’ Compensation Judge to decide and is shown through the testimony of the injured worker, his doctors and/or physical therapists, and even family and friends. The question of whether the loss of use is “for all practical intents and purposes” is also a question for the Judge to decide, but is based upon an interpretation of the law surrounding this types of claims.

Section 306(c) of the Act, §77 P.S. 513, outlines the body parts for which specific loss worker's compensation benefits are payable. These include fingers, toes, hands, legs, arms, eyes, etc. Benefits are also payable for hearing loss attributable to the injured worker’s employment, and disfigurement benefits are payable for scarring of the face, head or neck which is serious, permanent, results in an unsightly appearance and is not usually incident to the claimant’s employment. The intricacies of these two categories are beyond the scope of this article, but are vitally important details in ascertaining an injured worker’s right to redress for his or her injury.

The date from which specific loss worker's compensation benefits and the healing period benefits are payable begins upon the day the Judge finds the injury to be a specific loss pursuant to the above definition. This determination is usually obvious for amputations, but not necessarily so for other injuries resulting in the permanent loss of use of a body part. Accordingly, it is critical to research both medical and factual information surrounding the injured worker’s ability to use the body part in question.

The amount of a specific loss award (including the amount of the healing period award) is determined by using the tables outlined in Section 306(c) of the Workers’ Compensation Act to determine the number of weeks payable for a particular specific loss, and multiplying by the injured worker’s weekly compensation rate (typically two-thirds of the worker’s pre-injury average weekly wage). Specific numbers of weeks are set forth in the Act for losses of each listed body part.

To illustrate these concepts, let us discuss the case of Ernie Exampleman. Ernie worked for a company installing hardwood floors, and earned $900.00 per week. While working one afternoon at a customer’s home in January of 2006, the saw Ernie was using caught on a knot of wood and kicked backward, cutting off his index finger and thumb on his left hand. Despite the best efforts of several doctors, Ernie lost his entire left index finger, but they were able to save his thumb. Unfortunately, Ernie was left with very little use of his thumb.

According to the Act, Ernie is clearly entitled to specific loss worker's compensation benefits for his lost index finger. Section 306(c)(10) awards 50 weeks of benefits for this loss and an additional six weeks attributable to a healing period under Section 306(c)(25). Assuming Ernie is out of work for the full six weeks as a result of this injury, he would receive 56 weeks of benefits at his weekly compensation rate of $600.00 ($900.00 x 2/3). In total, Ernie will receive $33,600.00 for his lost index finger.

What about his thumb injury? The question to be determined is whether he has permanently lost the use of his thumb for all practical intents and purposes. As stated previously, this is a question for a Judge to decide. For the sake of argument, say the Judge finds that the thumb is compensable as a specific loss award. How does this finding affect the overall amount of benefits Ernie will receive for his injuries?

Logically, we might assume that Ernie would be entitled to two specific loss awards and two healing period awards. But that is not the case. The Act awards Ernie both of the specific loss awards (50 weeks for the finger and 100 weeks for the entire thumb), but only the longer of the two healing periods – 10 weeks for the thumb. In total, Ernie will receive 160 weeks of benefits for this injury.

The law of specific loss worker's compensation benefits has many twists and turns. Each individual case is unique and must be investigated in detail to determine the proper amount of compensation payable to the injured worker. Employers who have questions regarding their injured workers’ rights to benefits should contact their workers’ compensation insurance carrier or the defense attorney assigned to the worker’s case by the insurance company. Injured workers should their injuries with an attorney well-versed in Pennsylvania workers’ compensation law.

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