It’s a fact of modern life that people are always “coming and going.” “Going and coming” is a concept in workers’ compensation that means that workers cannot recover for the injuries they suffer when they are on the way to work or on their way home. The rule is based on the idea that compensation in such situations is not warranted because getting to work is the employee’s responsibility and does not involve advancing the employer’s interests.
Maryland’s top court recently determined that the rule doesn’t apply to a worker traveling from a work-related activity to a work site with his employer’s knowledge and approval.
The decision means that a Montgomery County firefighter can receive workers’ compensation benefits for the injuries he suffered in a vehicle crash while traveling from an employer-encouraged physical training session to his fire station to pick up his work-related mail and office correspondence.
Thaddeus Roberts, a paid firefighter employed by Montgomery County, was working in a “light duty” position with the fire department because of problems associated with a prior compensable back injury. A firefighter is placed on light duty when, as a result of being unable to meet the demands of working as a firefighter, he or she is assigned to performing less physically strenuous tasks. Roberts was assigned to the Fire Department headquarters in Rockville, instead of his regular duty station, Fire Station No. 19. Roberts stopped by Fire Station No. 19 about once a month to pick up his mail and office correspondence. Roberts’ supervisor was aware of the practice.
However all firefighters, including those on light duty, are encouraged by the Fire Department to engage in two hours of physical training per shift. They are paid for their time and can train at any location of their choice.
But, one morning, having left a local high school after a bout of physical training and, while on the way to check his mail at Fire Station No. 19, Roberts was involved in a vehicular accident.
Roberts filed for worker’s compensation benefits. Montgomery County successfully fought the claim before the Maryland Workers’ Compensation Commission, arguing that his injury did not arise out of or in the course of his employment.
Workers’ compensation benefits are intended to protect workers and their families from hardships inflicted by work-related injuries by providing workers with compensation for loss of earning capacity resulting from accidental injury arising out of and in the course of employment.
Roberts then asked the Circuit Court for Montgomery County to review the Commission’s decision. The County denied liability, once again arguing that Roberts’ injury did not arise out of and in the course of his employment because he was “coming and going” to work at the time of the injury. Roberts countered by arguing that “but for” his work-related duties of physical training and picking up his work mail, he would not have been traveling between the high school and Fire Station No. 19 and that checking his work mail was acquiesced to by the supervisors.
The trial court agreed with the Commission. The Court of Special Appeals affirmed the trial court. However, when the case came before the state’s top court, Maryland’s Court of Appeals agreed with Roberts and sent the case all the way back to the Commission for reconsideration.
The rub, the state’s top court observed, was whether the “positional risk” test held sway or the “going and coming” rule did. Under the positional risk test, an injury arises out of the employment – and is compensable – if it would not have occurred but for the fact that the obligations of the employment placed the employee in the position where he or she was injured.
“We disagree with the County’s assertion that Fire Station 19 was not a work-related site to which Mr. Roberts was traveling, because the mail he was picking up was that left for him at the site and the practice of gathering the mail was one about which his supervisors were aware,” the court said. As a result, the County acquiesced – gave implied consent – in Mr. Roberts’ act of gathering mail at Fire Station No. 19, the court said.
“Mr. Roberts, thus, was en route from a work-related activity to a site where he was to engage in a work-related act, to which the employer acquiesced. His travel, therefore, was incidental to his employment. Travel incidental to employment cannot be excluded from coverage by application of the coming and going rule. As a result, the injury he sustained is covered by the Workers’ Compensation Act, because “but for” his travel between work-related sites he would not have been injured,” the court said.
The workers’ compensation group at Belsky, Weinberg & Horowitz has many years of experience handling workers’ compensation matters, including the “going and coming” rule and its exceptions. Call us at 410.234.0100 if you need help.