Although we typically use our blog to report news and developments in SC Workers’ Compensation Law, from time to time it helps to get back to basics. We hope our “Workers’ Comp Fundamentals” series will be useful as a learning tool for those who are relatively new to the world of workers’ compensation, while providing a good refresher for the more “seasoned” practitioners among us. In today’s entry we will review South Carolina’s “going and coming” rule.
To be compensable, an injury has to arise out of and in the course of employment, and whether or not a particular activity occurs “within the course of employment” is one of the most frequently litigated issues in South Carolina workers’ compensation. As a general rule, injuries sustained by a claimant while going to or coming from his place of employment are not compensable. This is known as the “going and coming rule.” There are five exceptions to the going and coming rule, which are as follows:
- if the transportation itself is provided by the employer, which includes situations where the employee is paid for his travel time;
- if the employee is still charged with some duty or task in connection with his employment on his way to and from work (the “continuing duty” exception);
- if the way to work is inherently dangerous and is either the exclusive way of ingress or constructed and maintained by the employer;
- if the injury occurs in close proximity to the workplace and there is an express or implied requirement that the employee use that approach;
- if an employee is injured while performing a special task, service, mission, or errand for the employer even if the task is performed outside of the normal days and working hours (the “special errand” exception).
“Coming and going” cases are very fact specific with outcomes that are sometimes difficult to predict. Employees injured while coming or going to their place of employment constantly test this rule, seeking to broaden the circumstances under which the five exceptions would apply. The Commissioners are frequently split on how they rule on a particular factual situation. The SCWCC Appellate Panel recently reversed a finding of compensability from the Single Commissioner in a case where the employee was injured in an automobile accident while on the way home after delivering some paperwork to his employer. Their Order contained some detailed discussion on the current status of the coming and going rule and its exceptions that could lend some insight into how at least three commissioner view the applicable exceptions.
In the case that was reversed by the Appellate Panel, the claimant drove a wood chip truck and his duties included a requirement that he keep up with paperwork and return it to the company’s office once a week. The paperwork included mill/load tickets, which had to be delivered by 8am every Wednesday. Testimony reflected that the Claimant typically brought his truck to the employer’s office on Tuesday after work where he got in his personal vehicle and drove home. Testimony was further elicited to the effect that the Claimant himself chose to take the paperwork home on Tuesday night rather than dropping it at the employer’s office at that time and bringing it back to the work place the following morning by 8:00 from his home. The employer was not aware that the Claimant frequently took this paperwork home with him on Tuesday night. The Claimant testified that there was no reason he did not simply drop the paperwork at the office on Tuesday night when he was still on the clock. No one at the worksite knew the Claimant had any paperwork with him on the date of the accident, and it is undisputed that the Claimant was not required to take the paperwork home with him.
On the day of the accident, the Claimant could not sleep, so he left his house at 4:00am to take the paperwork to his employer in his personal vehicle. After dropping the paperwork off, he drove his car back to his house. He was hit by another car on his way back to his home, sustaining injuries for which he was seeking benefits under the Act.
The Appellate Panel determined that only two possible exceptions to the coming and going rule were presented under this particular factual scenario: the continuing duty exception and the special errand exception.
The “continuing duty” exception applies if the employee is still charged with or required to fulfill some duty or task in connection with the employment on his way to or from work. The issue is whether the employee is acting in the performance of and is fulfilling a duty incidental to his employment when he is injured and whether the duty is a requirement of the job.
The Appellate Panel found that in the case before them, the Claimant was not required to make that trip by his employment; he was not charged with or required to take the paperwork to his home by anyone at his employment. He had made his own decisions not to file the papers when he was still at the worksite the day before and to take the paperwork home with him that night. He had no “duty” to make that trip in his personal vehicle to deliver paperwork to his worksite. The “continuing duty” exception did not apply because the accident did not occur while he was in the performance of and fulfilling a duty incidental to his employment.
The “special errand” exception overrides the coming and going rule if it can be shown that an injury occurred when an employee:
- was not at his regular place of employment; and
- was doing, or on his way from home to perform or on his way home after performing; and
- some special or unusual service, errand, or discharge of some duty incidental to the nature of his employment; and
- the service of the incidental duty is not a habit or for the convenience of the employee; and
- is in the interest of or under the discretion of the employer.
All five of the above have to be present for the injury to be subject to the “special errand” exception.
In the case at bar, the Appellate Panel found that the special errand exception did not apply and denied compensability, reversing the decision of the Hearing Commissioner. It is believed that this case has been appealed to the SC Court of Appeals, so we may find a precedential ruling from this particular fact pattern.
The takeaway is that the exceptions to the “going and coming” rule are very fact specific, and interpretations of those facts can vary. There is no “ bright line” clearly defining if and when these exceptions apply and each case has to be evaluated very carefully to determine if a claim is barred by the coming and going rule.