Author: Nancy Germond

The coming-and-going rule in workers' compensation claims compensability – whether the adjuster considers the claim is work related – depends on the actions of the employee and the instructions the employer provides before the time of the injury.

Here are some general guidelines for compensability when the employee is traveling for the employer, or is commuting to and from work.

What is AOE/COE?

First, let's discuss two key terms you'll want to understand used to determine compensability. To be considered work related, an employee's injury must meet two tests: Arising out of Employment (AOE0 and Course of Employment (COE).

AOE means the injury must arise from a work-related activity. For example, if an employee on lunch break has a heart attack, that heart attack probably did not arise from work activity. Of course, an employee can argue that job stressors contributed to the heart attack, but in general, there must be a clear connection between the work activity and the injury.

COE means that the injury occurred during the course of employment. This means

§  The employee was working when the injury occurred,

§  The location of the injury where the employee was injured was related to his or her work activities,

§  The employee was in the course of duty that benefited his or her employer.

Now let's discuss the coming-and-going rule circumstances. 

Driving to and from work is generally not compensable

In most states, the commute to and from work is not considered work related. There are exceptions for law enforcement , however, in many states since they would act in their official capacity if they encountered a crime or serious auto accident enroute to work. 

If you ask an employee to stop by the post office box on his or her way home, an injury that occurs during that portion of the commute would usually be compensable. Generally, however, driving to and from work is a personal risk.

If the employee drives a company car home, some states may find the injury compensable. However, some states have a “fixed situs" rule that finds compensability only during the time when the employee is working, not during the commute in a company vehicle. If the employer pays wages for that commute time in a company vehicle, that may increase the likelihood of compensability for a commute-time injury.

Traveling from work site to work site

Consider an employee who services appliances. He or she will travel from job site to job site, either in a company vehicle or in some cases a personal vehicle. Injuries occuring while an employee travels from jobsite to jobsite are usually compensable.

If the employee deviates from the route, for example to check on an elderly parent, this deviation may not be compensable. The adjuster's investigation should include obtaining the details of the deviation.

The walk into work

An employee injured in an employer-furnished parking lot can create a compensable injury. In a recent Rhode Island workers' compensation case, the state's Supreme Court found compensable an employee injured in a parking lot leased by the employer and where employees routinely parked.

Especially when the walk into work entails additional risk, for example the employee must cross a street from the parking lot to the building, it may expose that employee to a “greater hazard." In Beaver v. The Mill Resort & Casino, 180 Or App 324, 328 (2002), increased hazards can mean compensability of that injury.

Work trips entail special compensability risks

From the moment an employee embarks on a work trip, injuries that arise are generally compensable. If the worker takes a side trip, for example visits a local museum or goes to a non-work related function, an injury that arises during that portion of the trip may not be compensable. However, case laws on compensability vary significantly from state the state.

As usual in insurance, compensability in workers' compensation is an “it depends" situation

Workers' compensation rules and case law vary greatly by state. Therefore, a thorough compensaiblity investigation by the handling adjuster is imperative before the adjuster accepts and pays for an employee's injury.

Whether the coming-and-going rules and case laws apply can confound even the experienced adjuster. If you or your insured has questions regarding an injury's compensabilty, don't hesitate to contact the adjuster to discuss the investigation outcome.

First published: May 20, 2022