END OF ‘IRREGULAR WORKPLACE LOCATION’ AND ‘SOME EMPLOYER EQUIPMENT IN THE CAR’ EXCEPTIONS TO ‘GOING AND COMING’ RULE
DSK GROUP, INC., and ZURICH AMERICAN INSURANCE COMPANY v. HERNANDEZ, April 27, 2022, Case No. 1D19-2632
Claimant’s counsel: Kimberly A. Hill
E/C counsel: H. George Kagan
Issue. Whether §440.092(2) ‘going or coming’ exclusion precludes compensability of injury “going” to the first job site of the day -- on a more or less fixed schedule -- where wages commence on arrival and continue till departing last job site (excluding lunch), even with some employment materials in the employee’s car?
Answer Yes: precluded. Absent clear evidence of payment for time spent in such travel, injury en route to first job site of the day, even if different each day -- and even with some job materials in the car -- is not compensable.
Bottom line: The days of ‘some employer material’ in claimant’s car or truck, or ‘a different worksite daily’ constituting going & coming exceptions are over: such folks are simply going to and from work, which is not compensable as a matter of statutory policy.
Facts in a Nutshell: Employee/electrician en route to first jobsite of the day seriously injured in collision with drunk driver. In addition to his own tools his car contained “equipment and materials [the employer] supplied for his use at the jobs.” Wages commenced upon arrival at first of several daily residential jobsites. He was reimbursed a fixed amount monthly for “work-related” gas and though parties could not apportion out ‘going & coming’ component, stipend did not even cover work miles.
The JCC ruled irregular starting places made him a “field employee,” and, because he also carried work materials in his car and was provided some gas allowance: coverage commenced the moment he started his car. This was error.
The Holding: “Work” does not reference a particular location. It references an exchange of the employee’s labor for the employer’s payment of wages -- and the journey home from work does not begin until an employee ceases traveling between “necessary employment activities” at “employer-designated” places to go home (or elsewhere).
“Compensation for travel can however put an employee into a travel status,” such that “being in a travel status means the employee is working or at ‘work’ regardless of the destination being home or work.
Notably also: conveying “employment-related paraphernalia,” or “tools of employment” -- things that basically facilitate the employee’s work -- does not alter the outcome. A different situation is presented by materials so vital to the employer’s “continued operations,” that the very purpose of the trip must be deemed a (genuine vs. contrived) “dual purpose.”
“Traveling employee” -- an express statutory exception to the going and coming rule -- was ruled inapplicable to what is merely uncompensated local travel ‘to’ and from essentially local work -- irregular workplace notwithstanding!
Important Caveat: The court necessarily weaved through decades of cases, and facts that may support seeming exceptions to the holding involve travel between compensated employment activities without a significant break or interruption, if that travel is not going to or coming from work. Perhaps the closest case involved a “salaried” employee, McCormick, who routinely had to make “long” drives, and who received mileage, and per diem, all combining to render her drive part of the work, rather than going to or from it, i.e., a traveling employee.
For the very interested: The Court once again cleaves to the requirement that where the “text” of the law speaks to an issue, a JCC is not free to refuse application of the statutory rule on any basis not spelled out in the text, and the “going and coming” text makes no reference to homes, premises, or irregular locations, but only to and from “work.” And, as it ruled in the recent case Kelly Air, “Work begins when the employee starts to be compensated in the normal course of the workday and excludes uncompensated travel to and from the place where compensation begins.” The court distinguished well known close cases, e.g., Schoenfelder, the lawyer in the driveway, based on the already-started clock there.
The Court has been refining/fine-tuning the overarching “arising out of” component of the law in a recent string of cases: so clear was the pattern that in my landmark alert conveying the holding, in late February this year, in Soya v. Health First, I actually put out a “BOLO” to be on the lookout for this case, which had been pending two years, with “fingers crossed!” Well, it has come to pass just so.
Though the earlier cases dealt with subtle variations in a fall at work – – building upon the landmark “tripped over the dog” case a couple of years earlier – – the underlying theme informing all cases is: what is the actual vs. token contribution of industry where risk common to all persons is involved in an accident/injury arguably connected with work in some way?
STATUS: Not final until time for rehearing expires, and Claimant may try a Supreme Court gambit: I’ll advise.
For now, I am honored to have been given this opportunity by my esteemed clients to continue my longstanding work helping further insulate Florida industry and consumers from cost of unwarranted WC liability.
My very best regards to all.
H. George Kagan, P.A.