Our country has continued to change the traditional workplace with fewer manufacturing, trade and skilled labor jobs and more customer service-oriented, medical and virtual office jobs requiring travel as part of the employment. Workers are commuting more, blurring the lines of when work begins and ends, leading employers and employees to seek guidance as to what is considered a compensable workers’ compensation injury when an injury occurs.
“An injury … is compensable under the Workers’ Compensation Act only if it was `received in the course of, and arising out of, the injured employee’s employment.’” R.C. 4123.01(C); R.C. 4123.54; Fassig v. State, ex rel. Turner (1917), 95 Ohio St. 232. The issue raised is the question of fixed situs employee versus non-fixed situs employee. See Cossin v. Ohio State Home Services Inc., 2012-Ohio-5664. A fixed situs employee is a traditional employee that has a location in which they go to perform work and at the commencement of the work day, leaves. In a fixed situs employee, injuries that occur during travel to and from the workplace are not “received in the course of and arising out of the injured worker’s employment.” In order for an injury to be compensable while traveling for a fixed situs employee, the travel must both (1) been sustained “in the course of ” employment and (2) “arisen out of” employment. Fisher v. Mayfield, 49 Ohio St.3d 275, 277 (1990). This is known in workers’ compensation as the “Coming and Going” rule.
The Supreme Court of Ohio has determined that the “‘in the course of prong’ is construed to relate to the time, place and circumstances of the injury, while the ‘arising out of ’ prong is interpreted as referring to a causal connection between the employment and the injury.” Id. In order for a fixed situs employee to have a compensable travel related injury, both prongs must be met. If both are met, then the injured worker has met the burden to pursue the right to participate in the workers’ compensation program.
Alternatively, a traveling employee, where travel is an integral part of the employee’s job, does not need to meet the coming and going rule analysis. See Palette v. Fowler Electric Co., 2014-Ohio-5376, citing Lippolt v. Hague, Inc., 10th Dist. No. 08AP- 140, 2008-Ohio-5070 “[w] here traveling itself is part of the employment, either by virtue of the nature of the occupation or by virtue of the contract of employment, the employment situs is non-fixed, and the coming-and-going rule is, by definition, inapplicable.” A second analytical tool known as the “traveling employee” doctrine, which assists in determining whether an employee’s injuries occurred during the course of employment, has been created. Id. In the case Lippolt v. Hague Inc., the court found that an injury sustained by an employee during a week-long sales trip was compensable even though the injury occurred while the employee was walking from a hotel parking lot to the hotel lobby to check in for the night. Id. The court concluded that “[w]hether the employment … is fixed or non-fixed and whether the coming and going rule applies to defeat compensation ‘depends upon whether the traveling itself was part of the employment, either by virtue of the nature of the occupation or by virtue of the contract of employment.” Id.
The Supreme Court has also stated that persons employed as salesmen, servicemen or insurance adjusters: ‘[H]ave no fixed place of employment … the very nature of their employment requires them to go from place to place … and the traveling to each place to work is necessarily in the course of their employment.’ Lippolt at ¶ 16, citing Lohnes v. Young, 175 Ohio St. 291, 293 (1963).
That does not end the analysis though. The totality of the circumstances surrounding the injury is next to be considered. “…factors include: (1) the proximity of the scene to the place of employment; (2) the degree of control the employer had over the scene of the accident; and (3) the benefit the employer received from the injured employee’s presence at the scene of the accident.” Jones at ¶ 22, citing Lord. Moreover, the “list of factors in Lord is not exhaustive, but is merely illustrative of the facts to be considered in assessing the totality of the circumstances.” Id., citing Fisher at 279. For a fixed situs employee, the activity requires a determination of whether the employee
commences his substantial employment duties only after arriving at a specific and identifiable work place designated by his employer …. The focus remains the same even though the employee may be reassigned to a different work place …. Despite periodic relocation … each particular job site may constitute a fixed place of employment. See Ruckman v. Cubby Drilling and MTD Products v. Robatin, 61 Ohio St. 3d 66 (1991).
This means that an employee, can be fixed situs and fall under the above analysis, but the totality of the circumstances will also be considered.
Alternatively, if a non-fixed situs employee fails to meet the totality of the circumstances analysis because the employee was on a personal errand of such a nature that the employee is no longer considered in the course of the employment, the injury fails to be compensable as a workers’ compensation injury. See to Jones v. USF Holland, Inc., 10th Dist. No 10AP-537, 2011-Ohio- 2368, ¶ 18-19. A traveling employee albeit a fixed situs employee, will need to show that they meet the “in the course of employment” prong of the statutory test of a claimant’s right to participate, “an employee remains in the course of employment when traveling in connection with his or her employment except when the employee is on a personal errand.”
How does that affect employees that work from home and travel to different locations for work? Even as attorneys, we see more and more movement towards virtual offices that allow for work to be performed virtually anywhere. These new types of job environments create an interesting set of questions to be addressed and of course, litigated when looking at it from a workers’ compensation liability position. The answers will continue to develop as the issue is challenged through the court process. As new as the virtual office/employee concept may be, the nexus between claimant’s injuries and his/her employment remains the foundation of the compensability analysis.Angela Hardway
