Generally, someone who is commuting to and from work is not covered by workers' compensation. Injuries sustained while driving into work or going home at the end of the shift are not covered. But when transportation is furnished by the employer and the furnishing of that transportation is an integral part of the employment, then even “coming and going” or commuting travel is within the course and scope of employment.
The Labor Code defines course and scope of employment as follows (Sec. 401.011):
(12) "Course and scope of employment" means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:
(A) transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;
(ii) the means of the transportation are under the control of the employer; or
(iii) the employee is directed in the employee's employment to proceed from one place to another place; or
(B) travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:
(i) the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and
(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.
The legal issue is “whether the facts establish that the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade, or profession of the employer . . .” Appeal No. 111516.
The Labor Code selection above is met on several prongs (each section is independent of the others, as the claimant may prevail by showing any one of the prongs). Often transportation is paid for by the employer and the employee's job as directed by the employer is to go from place to place as assigned. This does not mean the claimant is automatically in the course and scope of employment. It means the claimant then is not excluded from the course and scope of employment and may demonstrate that the travel originated in the employment.
In a recent case, the principle that “commuting” type travel is not excluded from course and scope, with the claimant able to demonstrate injury in course and scope while traveling, was discussed in detail. Seabright Ins. Co. vs. Lopez, No. 04–12–00863–CV (Tex.App.--San Antonio 2014, pet. pending). There, the Court cited the Leordeanu and De Los Santos cases to the effect that: “The Texas Supreme Court has recognized that “[a]n employee's travel to and from work makes employment possible and thus furthers the employer's business.” Leordeanu, 330 S.W.3d at 242. Therefore, Lopez's travel from his motel in Marlin to work on the day of the accident satisfies the second element of the course and scope of employment requirement. De Los Santos, 2012 WL 4096258, at *2” Seabright Ins. Co. vs. Lopez, No. 04–12–00863–CV (Tex.App.--San Antonio 2014, pet. pending). Thus the Court stated that the fact that the employee was using employer-provided travel to get to work (and by implication here, from work back home) furthered the employer's business affairs, and it only remained to be determined whether the travel originated in the employer's work.
The Court concluded in Seabright that the furnishing of travel was gratuituous. Nothing in the record indicated it was integral to induce the employee to work for the employer or important to the employer's business purposes. But many times the record establishes that the vehicle was furnished to the claimant as an inducement to continued employment (it helped the owner retain employees) and the truck was full of employer tools and equipment essential to the job and not merely a commuting vehicle.
The rest of the Seabright opinion will only be relevant when it deals principally with the facts there that the employee lived far away from home and that itself connected the travel with work. It is worthy of note that the court thus declined to discuss the carpooling issue and its relevance to the “origination” issue because the other issue (remote work) was dispositive for Lopez.
The De Los Santos case has a strange history-- a loss at the CCH for the beneficiaries, who won summary judgment at the trial court, reversed and rendered by the 4th Court, and then reversed and remanded after rehearing with the 4th Court (with the carrier then filing a petition for review with the Supreme Court, recently denied). So the case itself is unresolved, but the legal principles are approved by the Supreme Court.
There, the trial court handled the case on stipulated facts and the basic problem the appellate court found was not all relevant facts, from its viewpoint, were addressed. The Court reviews those, and thus gives us insight as to what issues we should address in similar cases.
The Court noted that “the evidence fails to establish why the truck was furnished. None of the stipulated facts address the issues of whether the employer provided De Los Santos with a company truck because the worksite was remote, or because the company-furnished truck was part of the employer's plan to have its employees arrive and leave at the same time. Nor do the stipulated facts show it was necessary for the employer to furnish De Los Santos with a company truck in order to induce him to work at this worksite. The evidence simply does not demonstrate that the company truck driven by De Los Santos was an integral part of his employment contract. ” to De Los Santos American Home Assurance vs. De Los Santos, 2012 Tex. App. LEXIS 7891 (Tex.App.--San Antonio 2012, pet. denied).
The De Los Santos opinion from there goes on to discuss why the claimant there was not on a special mission. That case was remanded and remains unresolved because there are fact issues omitted from the record.
This line of cases is not terribly new. It is normal for delivery drivers or repairmen to be covered for travel that involves going to a location where a customer is and returning back home.
We have long held that the situations where an employee whose very nature of employment required travel from one place to another throughout the day was found to be in the course and scope of employment because to hold otherwise 'would be wholly unjust to salesmen, servicemen, repairmen, deliverymen, and a host of others who may be required to use their own automobiles in their work, and would be a strict rather than liberal interpretation of the . . . Act. Appeal No. 111516 citing Appeal No. 081590.
Note there the Appeals Panel is going so far as to categorize travel in a claimant's personal vehicle as covered. The case where the employer is paying the employee when the travel-related injury occurs is much stronger because it is evident that the employer considers the employee's travel to relate to work when the employee is simultaneously traveling and being paid.
In numerous cases an employee was determined to be in the course and scope of employment even when not being paid for such travel. In Jecker vs. Western Alliance Ins. Co., 369 S.W.2d 776 (Tex. 1963), a salesman who also serviced equipment was in the course and scope of employment when driving, outside of business hours, to perform service work on a product sold. He was on salary and not paid at the time of the accident. And in Appeal No. 111516, the decedent “was driving to the doctor's office in City K to pick up a specimen. Thus, the decedent had begun his job duties directed by the employer regardless of whether or not he was 'on the clock' and being paid travel time, as set out in the company manual.”
In those cases, employee travel to a remote site was considered in the course and scope of employment despite not being paid at the time.
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