If an employer is going to require an employee to travel as part of his or her regular job duties and is compensating that individual for their travel time, then the employer can expect to see expanded workers’ compensation liability for that employee. For instance, if the employee is injured while traveling to see a customer, that injury will be covered. This is true even if the employee is engaged in activities that could legitimately be considered personal. So long as the employee does not deviate in any significant manner from their work activities, the inclusion of a personal errand will not necessarily destroy liability in the workers’ compensation setting for injuries.
That was the situation in the case of Freibel v. Visiting Nurse Assoc. of Mid-Ohio (Ohio App. 5 Dist. 2013), No. 2012-CA-56. In Freibel, the plaintiff was hired as a home healthcare nurse and was required to travel to the client’s home to provide services. During the normal work week, the plaintiff was not compensated for her travel time or travel expenses. However, when she was asked to work on Saturday and Sunday, she was compensated for her travel time. In this case, the plaintiff was traveling to visit a patient on a Saturday and was injured in an automobile accident. Her two children were with her in the car. She had intended to drop them off at a nearby shopping mall on her way to the client’s home. She had not quite made it to the shopping mall when the accident occurred. She then filed a workers’ compensation claim for her injuries and the claim was allowed by the Industrial Commission. The employer appealed to the local Court of Common Pleas and was granted summary judgment. On appeal, however, the Court of Appeals overturned the trial court’s decision and reinstated the claim.
One of the defenses raised by the employer was that the plaintiff was a “fixed situs” employee. As such, under the “coming and going” rule, there should not have been any coverage recognized for injuries sustained while traveling to a client’s home for her next appointment. However, the appellate court refused to apply the “coming and going” rule to this situation because the plaintiff was compensated for her travel time. As a result, the time she spent in her car was one of her normal job duties and any injuries sustained during that travel would therefore be covered.
The employer also tried to rely upon the defense that her injury was not sustained in the course of her employment because the plaintiff was in the process of performing a personal errand at the time of her injury. The Court, however, made a careful review of the facts and determined that the route taken by Plaintiff to the mall was the exact same route that she was going to take to the client’s home. More importantly, she had not made it to the mall before the accident occurred and, therefore, she had not deviated from the route she would take to the client’s home at the time of her accident. If the accident had taken place in the parking lot of the mall or while exiting the mall, this case might have ended up differently. However, without any significant deviation from the route required as part of her job, the Court refused to deny coverage for her injuries.
This case should serve as a reminder to all employers who require their employees to travel and compensate those employees for their travel time. Unusual scenarios can arise that create workers’ compensation liability even when the activity that leads to the injury involves a personal errand.