Mentioned in This Episode
Intro: This is Workers Comp Matters hosted by Attorney Alan S. Pierce. The only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert and author. Alan S. Pierce is a leader committed to making a difference when workers comp matters.
Judson Pierce: Hello and welcome to another episode of Workers Comp Matters. My name is Judson Pierce on the Legal Talk Network here with my father Alan Pierce, say hello, Alan.
Alan Pierce: Hey Jud, how are you?
Judson Pierce: I’m doing well, how are you?
Alan Pierce: I’m okay.
Judson Pierce: All right. So we are broadcasting from lovely Sunny Salem, Massachusetts and we hope that all of you are well. Thank you for tuning in. We are here to discuss two doctrines in the Workers’ Compensation Law field which are called the Going and Coming Rule and also the Level Floor Doctrine. There are numerous so-called doctrines, rules in our Workers’ Compensation Law. The Fellow Servant Rule, the Dual Capacity Doctrine, the Positional Risk Doctrine, the Success of Insurer Rule, or some of these, there are several others. Each state has its own body of law and statutory and case law that sort of informs how courts react. Our discussion today in the examples, we note, may result in different decisions based on the state of law where the case is brought, of course. But just to dive in, on the first of those the Going and Coming Rule, Alan, what would you say that — what is the Going and Coming Rule generally?
Alan Pierce: Thank you, Jud, and you’re correct. One of the beauties of practicing Workers’ Compensation Law is that there are so many factual situations where people get injured that they normal claim that you think about in workers’ comp that you’re lifting a box and you hurt your back and you trip on something and you break a bone. There are so many other aspects of work that have given rise over the past hundred years that we have established in almost every state, different doctrines or rules. And one of the more difficult to understand is the so-called Going and Coming Rule. And as your question implies, the answer would seem pretty simple. Generally speaking, a Going and Coming Rule is usually invoked us a defense by the employer or the insurance company and it’s very basic if a worker is injured while going or coming from work, while commuting to his or her work. That injury is not covered under workers’ comp so somebody leaves their house at 7:00 a.m. and they driving to work and they get involved in a horrible accident on the way to work, even though the work required the travel, that would not be covered. And obviously the reverse would be true going home. You can imagine that there are a variety of exceptions to that rule, and there are a variety of situations with that rule would not simply apply. So, I think that’s what we might attempt to talk about today.
Judson Pierce: Yeah. What are some of the exceptions to the Going and Coming Rule that have been found over the years?
Alan Pierce: Well, obviously, the most common would be if even in the act of commuting to or from work, you are that worker is doing something in that commute that furthers the business of the employer. Leaving work and you take maybe some mail to drop off at FedEx or at postal box and you’re injured while doing that. The important thing is, in most jurisdictions, the rule comes into effect where there’s a fixed place of business. There are some workers that don’t report to the same place every day. They are employees who primarily travel during the day and there are exceptions within the exceptions. Sometimes the exception might be, if you are being paid by your employer for travel, if you are essentially on the clock or if you’re in a company vehicle provided by the employer.
So, there are a variety of factors that you would look in to when there is perhaps a highway accident or perhaps — we’ve had a number of these cases. Somebody in the way to work or from work might stop off at a local coffee shop at Dunkin Donuts and get injured in the parking lot, slip on the floor and they getting their coffee to go on the way to work. Would that be covered? The other thing that gives rise to a lot of contested claims is, when does the Going and Coming Rule start and when does it ends? It usually starts obviously when you leave home and it ends when you arrive at work, but what does arriving at work mean? Does it mean punching in? Does it mean arriving at the employer’s premises? And if it is, as it is in most cases, when you arrive at the employer’s premises, what is considered employer’s premises? So, we can talk about a variety of cases or types of cases that might fall into those exceptions.
Judson Pierce: Yeah. Employer’s premises would be generally the brick-and-mortar, is it the parking lot? Is it the sidewalk to get to the actual place? What are these — where does it begin?
Alan Pierce: That is a question that has been answered many times in many different ways in various States and various courts, it is not generally speaking, once you walk in the door of your factory, office, et cetera. If you work in a building, it would be pretty much arriving at the building. If your employer’s attendant in an office building and the employer provides a rite of passage from the lobby to the escalator, or the stairs of the hallways. Once you’ve reached the building, you are considered outside of the Going and Coming Rule. You have arrived, you were no longer going to work. These cases mostly, when you going to work, but the same applies in the reverse when you leaving. Then, there are cases about parking. If I were to drive to work in my office building here and I park in the employers parking lot and I were injured walking from my car into the front door, I would probably be covered.
Now, if I work for example, for a store in a mall and I parked in the General Mall parking lot, I probably wouldn’t be covered. However, we’ve had two or three cases that I can remember where — let me just give you an example. Our client worked for a department store and would report to work before the store opened. The store had a policy, they did not want their employees, 150 employees to take all those good parking spots closest to the door, they wanted those reserved for customers. Same thing at supermarkets in shopping strip mall. So, the employees would be designated to park way over there and then walk across the parking lot. So, if an employee was hit by a car, for example, or tripped on a pothole or slipped on ice while walking from an employer designated parking area across a public a street or public sidewalk to get to the door, that would in most jurisdictions be covered as an exception to the Going and Coming Rule. Or put another way, it is within the Going and Coming Rule but the going has already occurred, you’ve already reached the premises. So, if it’s a premises that the employer owns or controls or has a right of access or you are directed to park or enter a different way than the general public. Once you’ve reached those premises or the parking area, generally speaking you will be covered.
Judson Pierce: So, in that example where it’s a public way that the employer asks you to go across, I mean if there is a divot or a pothole and you trip in it, do you then have a third-party lawsuit perhaps against the city for failure to maintain?
Alan Pierce: Yeah, I mean obviously if you’re struck by a car or there’s a negligent condition snow and ice, slip and fall cases or pothole cases might be difficult to prove negligence on the city of the entity that owns it. But yes, it would give rise to a separate claim other than workers’ comp or in addition to workers’ comp.
So, you know where it happened, how it happened, where you were, to what extent that the employer controls the access to the premises or direct you to be in that particular place, all of these are important factors. So, if you get one of these cases as lawyer or you’re defending one of these cases as an insurance claim rep or a defense attorney, you would be looking for those facts that would take it out of a special exception and confine it to going and coming.
We had an interesting case in the office, for example, one of our clients always in the way to work with stop at Dunkin Donuts. Go through the drive-thru and pick up a cup of coffee for herself and she got a call on the way to work from her supervisor and said “Have you stopped at Dunkin Donuts yet?” “I just did”. She said that there’s another one on the way to work. He says “You think you could swing by and pick me up an ice coffee?” And she did. She went into the premises, it was wet floor, she slipped and broke her leg. And the insurer took the position this was a Going and Coming Rule case.
And if she were buying a coffee for herself, it probably wouldn’t have been but because her employer or supervisor asked her to deviate from her normal route and go in and pick him up an iced coffee, that was enough to convince the insurance that we didn’t even have to litigate that case. The insurance company confirmed that indeed her employer asked her to pick him up some coffee and as a result, even though she had not arrived at work, was not on payroll yet, that was covered under workers’ comp.
Judson Pierce: How about the folks nowadays especially who are working from home? And how does that affect all of this? For example, there have been cases that say that, going to the bathroom and it doesn’t — especially at nighttime doesn’t trigger a rising out of or in the course of situation.
How does working from home and people can do it and send emails during the day or night? How does that affect things?
Alan Pierce: You know, that that brings up two different doctrines. One, is the scope of employment. Are you in the course of employment when you’re working at home get hurt? We do know that people that are working in an office or factory or a location, they are covered if they go on what we call personal comfort breaks, Personal Comfort Doctrine is something we discussed at talking about another doctrine in an earlier show. So if you go to the bathroom, get up from your desk or you go out for coffee break and you suffer some type of injury, that is generally covered. If it happens at home, it becomes, you know, a little more of a question of facts. I mean that’s a little separate than the Going and Coming Rule.
However, the Going and Coming Rule usually doesn’t apply if you are going from one workplace to another. So, let’s say you work for a company and you go to this office or go to this store and then during the course of the work that you have to travel to another location of the company and you get hurt, you’re driving, you’re commuting from one location to another that would not be covered — that would not be precluded by the Going and Coming Rule and I’ve never seen a case brought yet. There may have been some jurisdictions I am unaware of but let’s say because of the pandemic or even before the pandemic, but certainly since the pandemic, a lot of people work from home and now they are back in a hybrid situation.
So let’s assume these facts. Let’s assume for example, somebody begins their work day at home, they log on to the computer, they do whatever work they do and then at 11:00 in the morning they then go to the office and they are commuting to the office. Normally, that would be precluded by the Going and Coming Rule, if they going from home to office. But since they’ve already started the work day at their home, which is a home office, I would argue and I think I would be successful in most jurisdictions that they were not commuting to work they were rather traveling between one work location and another work location. So, you know, now that we have these hybrid work situations where home is becoming a place of employment, we may find our cases being brought with there are injuries that take place once a work day starts at home or vice versa. Somebody leaves work and they’re going to go finish your work at their home office and they get hurt in the normal commute, but if they are commuting back to go continue their work day, I think an argument could be made that this is not covered under the Going and Coming Rule, it is rather another example of an injury while traveling on company business.
Judson Pierce: Yeah. So there’s going to be so many more exceptions to the rule over time. You have to wonder why even have doctrines or rules in the first place if so many exceptions are created over time, right?
Alan Pierce: Well, you know, the purpose of workers’ comp is to compensate or to require the employer or its insured to pay for injuries that occur that arise out of activities that benefit the employer and are not just the ordinary hazards of everyday life. So at some point in a person’s 24-hour a day even if they are thinking about work at home and have a bright idea or they want to write it down and they fall out of bed, that really isn’t considered a worker’s comp claim. So the distinction is what are you doing, where are you doing it and what is the relationship between where you’re coming from and where you are going to?
So, for example, let’s say you would normally go from point A to point B to work and let’s say going home, your boss says, I want you to mail this letter. So instead of going from point B to back to point A, you go from the place of employment to a UPS office. If you are injured going to and from there, you’re probably covered. Once you leave the UPS office and then get back to your normal route home and you get an accident, you’re probably not covered. I’ve had a case or two where we’ve had actually go to Google Maps and actually show the route from company to errand and then back to the route home as long as that person is not back on the normal commuting route, they are outside of the going and coming defense of the claim. These cases are extraordinarily fact-specific and over and above that, again, each date has a narrower or more liberal interpretations so that, you know, you can’t draw any conclusions from any of the cases that we just referred to but these are general principles.
There was an interesting case while we’re on the subject that went to the Supreme Court in Massachusetts about 10 or 11 years ago. It’s called Haslam’s case. And that was a case where he was injured clearly commuting from work to home, but he was awarded workers’ comp all through the administrative process. It was reversed by our Supreme Judicial Court as being within the Going and Coming Rule.
Basically in that case, a fellow was a cement pourer for the big dig, the legendary big dig in Massachusetts for this project that went out the 20 years basically reconstructing the downtown highway system and on this particular day, when he got hurt, he had worked 27 straight hours without a break. He was exhausted. And within 30 minutes of driving home, he literally fell asleep at the wheel, hit a stationary object and was really severely injured. The judge at the trial level found that this was an exception to the Going and Coming Rule that had he not been so tired as a result of an extraordinarily long work day he should not be penalized under the going and coming rule and I thought that was the correct decision. The Supreme Judicial Court said he was not required to work 27 hours. It was something he felt he needed to do as a conscientious employee and the fact that he fell asleep at the wheel while commuting, that was a risk that fell upon him and not the employer.
That case in 50 different states or 49 different states might come up with an equally number of decisions awarding him workers’ comp. I was a bit surprised that our Massachusetts Court which I always considered to be somewhat liberal in terms of these doctrines, I felt that was a rather tight decision, I can understand it. They did indicate that this should not be an exception that just being tired would not be enough and perhaps that they’re correct, but that gives you an idea of how final points at some of these cases might turn.
Judson Pierce: Yeah, it turned, if I’m remembering correctly on the sole testimony of the supervisor that said that, you know, was actually against union principles for someone to work that amount of time like the employer would have offered a replacement worker had the employee just said, “Look, you know, I’m not feeling my best right now. I’d like to go home.” There would be no repercussions. He thought there might be, he thought that he would be fired or penalized in some way so his subjective outweighed the objective and the court of the subjective doesn’t count here, right?
Alan Pierce: Yeah. You’re correct. Those were all of the fact, those were some more of the factors that went into the reasoning. And again, it kind of gives you an idea that something as simple as well. If you get hurt going and coming from work, you’re not covered, you can understand there are situations where you indeed could be. And again, where is the employers’ premises? Where does it begin? These are all cases that come up with enough regularity that anybody handling these cases really should take a deep dive into the literature and see what the current state of the law is in your particular State.
Judson Pierce: All right. Why don’t we take our quick break to hear a word from our sponsor, PInow.com? We’ll be right back.
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Judson Pierce: Hello and we’re back. We were discussing the doctrine known as the Going and Coming Rule. We are going to discuss for our second part in our last part of our show today, the Level Floor Doctrine. And as part of that, idiopathic falls, right? The Level Floor Doctrine is — what is it essentially? The principle is that if you just fall from a level floor, you could have fallen from a level floor at home and therefore that’s not incidental to your employment, right? and it doesn’t matter if your level floor is concrete or dirt or wood, there’s just nothing about your employment that causes you to fall from the level floor so you are not due compensation, is that essentially what it is?
Alan Pierce: Yeah. You’ve hit it pretty much on point although you’re not falling from a level floor, you’re falling to a level floor. And the other phrase that you — it is a good point, probably important point. So you’re falling from a level floor, you’ve got bigger problems in the workers’ compensation claim.
And the other part of this is idiopathic fall. So what is an idiopathic condition? Idiopathic means a condition or disease for which the cause is unknown or which arises spontaneously. So let’s take an example where a person with either diabetes or epilepsy or perhaps no condition somehow faints at work and falls to the level floor and is injured.
That would be considered an idiopathic fall. It was either a fainting spell for an unknown reason or blood sugar was off and you got dizzy or you have epilepsy or you just prone to syncopal episodes and you fall. If the employment didn’t cause the fainting spell; excess work, excess heat, wet floor but if you simply passed out for either an unknown reason or a disease or a condition and you injured yourself by hitting the level floor even if it’s a concrete floor or a carpeted floor, or the dirt, that is generally not covered because of the Level Floor Doctrine. You could hurt yourself at home, it just happened to have been a coincidence of time and place that you are in the workplace.
However, the Level Floor Doctrine has an exception, and that exception would be that if you are injured on the way down, so that if you’re walking, maybe through a factory and your near work table and you fall, and you strike a part of your body on the table or a piece of the employer’s premises, and you are injured as a result of that, those injuries are covered. So, the injury, let’s say you have a stroke unrelated to any pressure at work and you collapsed and you hit a piece of equipment and you break your arm or you hit your head on that equipment, the injury to your head would be covered because it wasn’t caused by the level floor which caused by a piece of the employer’s equipment. But the actual disability from the stroke wouldn’t be covered because the stroke wasn’t caused by work but the injuries caused as a result of the stroke or as a result of a fainting spell, or as a result of just going down. As long as you hit something on the way down, those injuries are covered.
And it’s not so much. I had a case where the insurer raised the Level Floor Doctrine because my client was on a ladder and he was fixing some air conditioning vents on the ceiling and he clearly had a syncopal fainting episode. Nobody knows why he fainted and fell off the ladder and he hit his head on the level floor and the insurer took the position, this is a Level Floor Doctrine. We took the position. Yeah. If you hit yourself when you’re walking on the floor but when you’re on a height of 12 feet or 10 feet, it is the fact that you’re on a ladder which is tantamount to hitting yourself on a piece of machinery, that that takes it out of the level even though you hit the level floor, you are doing it from a height upon which you are furthering the employer’s interest. So, that was not a level floor defense, but it was an idiopathic fall. He landed on the level floor, but he hath landed from a height. So, he did get workers’ comp.
Judson Pierce: So, even if the ladder is the employee’s own ladder, do you think that that would change anything?
Alan Pierce: No. I don’t think it would change anything as long as he was in the course of employment. So, let’s say the ladder collapsed then he fell, there’s no question that would be covered. But if he fell from it, the fact that he is up on a height, I would argue and I can’t say, I would win that case a 100 percent of a time, but we certainly prevailed here and I think in most jurisdictions they would hold working off a height would be an exception to the Level Floor Doctrine.
There’s another case I think you handle you may or may not remember. We had a client who drove an 18-wheeler and he was harnessed in. He had a shoulder seatbelt and the shoulder harness and without any question, he had a seizure that was unrelated to his driving. His seizure was of such intensity and he was belted in so tightly that as a result of the seizure, he fractured three vertebrae of his spine simply because he was restrained. And again, the insurer defended that case as you well know, Jud because you won the case on the grounds that this was an idiopathic seizure for which the employer and insurer should not be responsible. But you were able to show that but for him being harnessed, that produced such tension on his spinal column when he was in the throes of a major seizure attack that, that it was the instrument, that’s like hitting the workbench in the way down. It takes it out of the idiopathic fall level floor. It was part of the employer’s premises in this case the truck that caused the spinal fracture. He didn’t get any benefits for the seizure, but he got benefits for the injuries that the seizure caused by being seat-belted in.
Judson Pierce: So, is this similar to what’s known as the Positional Risk Doctrine that you’re in a position of risk?
Alan Pierce: It’s sort of overlaps the Positional Risk Doctrine might be — see if I can summarize it, might be — let’s assume you are working outside and also a piece of debris falls from a building or somebody shoots a gun and you get struck by the bullet in your walking, on the street where it exposes you to risks that aren’t necessarily risks of the employment.
But because of the position that you were in, the zone of special danger. At some places call it some it may occur in the street, there’s a Street Risk Doctrine. But these are all dependent on what happens, but, yeah, they kind of overlap a bit. It’s a little different because we know what the cause of the injury was on these positional risk cases. But, yeah, there’s some of that in the level floor stash idiopathic fall. The fact that the position you were in in the workplace exposes you to the risks of the table or exposes you to the height from which you might fall from a ladder. So, yes, there are elements of positional risk in the overall doctrine of level floor idiopathic injury.
Judson Pierce: I think that we’ve covered a lot of ground here. Obviously, state-by-state fact — very fact dependent. Do you have anything else to add on this before we wrap up today, Alan?
Alan Pierce: Just be careful not to decline a claim because on the surface it might look like it might be barred by one of these or any of the other doctrines that we haven’t really talked about today but may have come up because facts are facts and sometimes it takes a little to ferret out from your client exactly what he was doing and where he or she was when the accident occurred and how it might fit into the general concept that an injury must arise out of and in the course of employment. And that is a pretty elastic concept that can be expanded or contracted based upon the circumstances of a case and based upon how other cases have been decided by appellate courts.
Judson Pierce: And with that, we will end today. I want to thank my co-host, my father here Alan Pierce for his wonderful recitation of these cases, past and present. We will be talking again I’m sure about legal doctrines that relate to the workers’ comp system all around and every state of the union. So, thank you to Legal Talk Network. Thank you to our sponsor, PInow.com. I’m Judson Pierce, we will talk to you again. Make it a day that matters. Take care.
Outro: Thanks for listening to Workers’ Comp Matters today on the Legal Talk Network hosted by Attorney Alan S. Pierce. When we try to make a difference in workers’ comp legal cases for people injured at work, be sure to listen to other worker’s comp matters shows on the Legal Talk Network. Your only choice for legal talk.