By: The Workers' Compensation Practice Group
On December 15, 2015, the Full Commission released its Opinion in Stiltner v. Pike Electric, JCN VA00001006840 (December 15, 2015), clarifying one of the exceptions to the coming and going rule. It is well-established that an accidental injury sustained when an employee is going to or leaving from his or her place of employment has not occurred in the course of the employment and is not therefore compensable.
The three exceptions to this rule are as follows: (1) when the employer provides the employee’s means of transportation or pays for the employee’s travel time; (2) when the employee is injured in an area that is the sole means of ingress and egress, or is constructed by the employer; and (3) when the employee is assigned a duty or task by the employer while on the way to or from work.
In Stiltner, the Full Commission focused on the first of these exceptions. The claimant in Stiltner was a groundsman who traveled seven hours every Monday to work at the employer’s Manassas, Virginia worksite from Tuesday morning until Thursday afternoon, returning home on Friday morning. The claimant traveled with a co-worker, and both would lodge in a hotel from Monday evening through Friday morning. The employer paid the claimant and his co-worker a per diem of $55.00 per day worked, separate from wages earned. This per diem was paid irrespective of the amount of miles traveled, and the Area Supervisor testified that the per diem served as payment for costs incurred by employees unable to commute to and from their homes, and live beyond the 81-mile radius around the job site. The claimant was injured in a motor vehicle accident on his way home at the end of the work week.
The Deputy Commissioner held, and the Full Commission affirmed, that the evidence revealed the per diem was an attempt to balance the costs associated with securing shelter, meals, and other expenses “ordinarily afforded, if fortunate, by and within one’s home” for employees with long-distance commutes. Therefore, because the per diem was not payment reserved for time consumed going to and from work, the Deputy Commissioner and thereafter the Full Commission held that the first exception did not apply and the claimant was not injured in the course of the employment.
This ruling is important because an injury incurred when the claimant commutes to or from work and is paid a set allowance to reduce the expenses of lodging, food, and transportation as the employee chooses does not fit within the first exception to the coming and going rule if the employee is not required to account for how he or she spends the allowance, and the employer exercises no control over the travel. If, however, the employer pays for the mileage driven, or relates the per diem to the means, manner, and distance of the claimant’s transportation to represent payment “in lieu of furnishing transportation,” the first exception will likely apply to place an accident sustained during travel in the course of the employment.
For more information on the ruling referenced above, please see:
