Injuries Sustained Coming and Going From Work – When Are They Compensable?
We typically think of compensable injuries occurring when the employee is already at their place of employment. But what about the time employees spend on the road, coming from and going to work? Many industries require employees to drive as part of their daily duties, not to mention the time workers in various professions spend commuting to and from the job site.
In 2017 alone, there were 648 fatalities in Colorado resulting from motor vehicle accidents. https://www.codot.gov/library/traffic/safety-crash-data/fatal-crash-data-city-county In the same year, there were close to 3,500 injury-only accidents. https://www.colorado.gov/pacific/csp/traffic-safety-statistics. Generally, injuries sustained while travelling to and from work are not considered to have arisen out of, and in the course and scope of, the employment relationship. However, special circumstances may exist which establish a causal relationship between the employment and the travel to and from the worksite. In the sentinel case of Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the Supreme Court reiterated the longstanding rule that injuries sustained going to work from home, and while returning, are not compensable because they are not seen as arising out of employment. The Madden opinion however, also acknowledged the facts of any particular case may justify an exception to this general rule. The decision sets forth four categories of “variables” to consider in determining compensability of travel-related accidents. The Madden court indicated that the variables include, but are not limited to; (1) whether the travel occurred during working hours, (2) whether the travel occurred on or off the employer’s premises, (3) whether the travel was contemplated by the employment contract, and (4) whether the obligations or conditions of employment created a “zone of special danger” out of which the injury arose. The Madden court also recognized the question of whether the travel was contemplated by the employment contract has the “potential to encompass many situations.” Generally, these situations involve the following: (a) whether the particular journey was assigned or directed by the employer, (b) whether the travel was at the express or implied request of the employer and conferred a benefit beyond the employee’s arrival at work, and (c) whether the travel was singled out for special treatment as an inducement to employment. The common element in these types of cases is that the travel is a substantial part of the service to the employer. Finally, if the Claimant establishes only one of the four Madden “variables,” recovery depends upon whether the evidence supporting that variable demonstrates a causal connection between the employment and the injury, such that the travel to and from the work arises out of and in the course of employment.
Following the Supreme Court’s holding in Madden, the courts have applied the analysis with varying outcomes. In Norman v. Law Offices of Frank Moya, W.C. No. 4-919-557 (April 23, 2014), the Claimant was employed as an attorney performing public defender duties for the employer pursuant to its contract with the City and County of Denver. The Claimant was required to use her automobile at work to travel from her office to the court house, to the jails, and to other miscellaneous locations. When the Claimant was injured in a traffic accident while she was driving to her first appointment of the day at the court house, the Industrial Claim Appeals Panel upheld the ALJ’s determination the Claimant’s travel was contemplated by the contract of hire and the Claimant’s injuries were compensable. The Claimant’s travel by automobile to the court house was deemed to confer a benefit upon the employer beyond the sole fact of the Claimant’s arrival at work. Therefore, “…the circumstances of the auto accident on that date fell within the exception to the going and coming rule specified in the Madden decision.”
However, in In the Matter of the Claim of: Holly Lagasse, Claimant, 4-993-361, 2018 WL 15445488 (March 29, 2018) (NSFOP), the Court of Appeals affirmed the ALJ’s denial of benefits based on the coming and going rule. The Claimant in the case was the decedent’s wife. The decedent worked for the employer as a derrick hand on an oil rig. The decedent worked for 12.5 hours each day from December 11, 2013 through December 17, 2013. The decedent voluntarily worked extra shifts from 6:00 am to 6:00 pm on December 19, 21, and 23, 2013. On December 24, 2013, the decedent began working the 6:00 pm to 6:00 am shift. The Claimant slept for about six hours on Christmas day and left for work at approximately 4:30 pm on December 25, 2013, to begin his 6:00 pm shift. After the decedent completed his work shift the morning of December 26, 2013, he started driving home. At approximately 6:36 am, the decedent’s pickup truck drifted across the center line of the County Road 66 in Weld County and collided with a bread truck. At hearing, the Claimant contended that the decedent’s death occurred during the course and scope of employment. The Claimant asserted that the decedent’s accident was compensable because of two special circumstance exceptions to the general rule that injuries sustained while coming and going to work are not compensable. The Claimant argued that the decedent’s work created a “zone of danger” because his work schedule produced significant fatigue and caused him to fall asleep at the wheel. Claimant further argued the decedent’s employment implicitly contemplated the use of a personal vehicle as the work location could change without notice because of a “rig move.” According to the Claimant, there was a benefit to the employer because if the employees did not bring their personal vehicles to work, the employer would have had to arrange and pay for transporting the employees to the new work site after a rig move. Finally, the Claimant argued that the employer benefitted from the employees transporting their uniforms and special apparel home for cleaning.
The ALJ rejected the Claimant’s argument regarding the “zone of danger exception.” The ALJ also determined that the travel was not contemplated by the employment contract. The ALJ found the employer did not require the decedent to use his vehicle to work; mainly the decedent’s vehicle was not used to perform job duties and did not confer a benefit to the Claimant beyond his mere arrival at work. The ALJ determined that the Claimant failed to show that special circumstances existed to justify an exception to the general going to and coming from work rule, concluded that the decedent’s accident was not compensable and denied the Claimant’s request for death benefits.
The “special circumstances” outlined by the Madden court sufficient to establish the required nexus between travel and a compensable work injury can present complicated factual and legal issues. Should you have any questions concerning accidents occurring while an employee is coming or going from work, please contact any of the attorneys at Lee & Brown.