In order for a workers' compensation claim to be compensable, the injury giving rise to the claim must arise out of and occur in the course of employment. The general rule in Tennessee, and many other jurisdictions, is that an employee is not acting within the course of employment when the employee is going to or from work ("coming and going rule") unless the employee's injury occurs on the employer's premises. The foundation of the rule is that travel to and from work is not ordinarily a risk of employment and is generally considered to be primarily for the benefit of the employee. Thus, under the "coming and going rule," an employee injured while traveling to or from work is generally not eligible for workers' compensation benefits. As with most rules, however, exceptions do exist.
Last month, the Tennessee Supreme Court's Special Workers' Compensation Appeals Panel examined the "coming and going rule" in relation to an "on-call" employee who was injured while driving home from work. In Shannon v. Roane Medical Center, No. E2011-02649-WC-R3-WC (Tenn., March 13, 2013), the Court held an "on-call" surgical technician who was seriously injured in an automobile accident while driving home from work was eligible for workers' compensation benefits. The Court limited its ruling to the specific facts of the case saying, it was "not possible to categorically grant or deny benefits when an on-call employee is injured while in transit to or from work." Rather, courts should consider the "totality of the circumstances in determining whether the coming or going rule applies to an on-call employee." According to the Court, the factors to review include: 1) whether the employee is paid for time spent on-call; 2) the nature of any restrictions imposed by the employer during the employee's on-call hours; 3) the extent to which the employer benefits from the on-call system; and, 4) the extent to which the on-call system requires additional travel which subjects the employee to increased risk compared to an ordinary commuter.
In reaching its determination that the on-call employee was entitled to benefits, the Court spent very little time with the question of whether the employee's injury arose from her employment. The employee was injured while driving home after having worked multiple on-call shifts at the Roane Medical Center. The Court found a clear "causal connection" between the employee's injury and her employment, finding that the employee would not have been "driving home at 2:30 a.m. but for her work as a surgical technician at the hospital."
The real issue, according to the Court, was whether the injury "occurred in the course of employment." In reviewing the law in Tennessee and other states, the Court found no "clear-cut majority rule as to whether injuries to on-call employees qualify as having occurred in the course of employment." Evaluating the case under its "totality of the circumstances" factors, the Court found the employee was paid an hourly wage for time spent on-call. At the time the accident occurred, the employee was receiving $2.00/hour on-call pay and was subject to being called back to work. The employer imposed restrictions during the employee's on-call hours, requiring that she carry a pager, report to the hospital within 30 minutes of a call by the facility and refrain from using any substances which would adversely affect her ability to perform her job. The Court devoted a good deal of attention to explaining that Roane Medical Center's on-call system provided a significant financial benefit to the employer. The Medical Center did not operate a full second or third surgical shift, and used the on-call system to cover/staff those shifts. Operation of the on-call system allowed the employer to offer operating room services on a twenty-four (24) hour, seven (7) day per week basis without the expense of fully staffing the extra shifts. Thus, utilizing "on-call" employees provided the employer with substantial savings in salary expenses. The Court found the employee was subjected to greater risk than an ordinary commuter due to more frequent and extensive travel, often at odd hours. The employee had worked her regular shift from 7:00 a.m. to 3:00 p.m., and worked one on-call shift clocking out at 9:10 p.m. to return home. She was called back to work a second on-call shift around midnight and worked until about 2:30 a.m. when she clocked out and drove home.
The Court found that Roane Medical Center "benefitted significantly" from an on-call system which "required additional travel" by the employee, and the case belonged "in the category of those exceptional circumstances in which an employee's travel [to and from work] may be considered a significant part of the employment." According to the Court, "as a matter of policy, if travel provides a significantly greater benefit to the employer and results in greater risk to the employee, then injuries to the employee during that travel should be compensable as a substantial part of the services for which the [employee] was employed."
Considering the "totality of the circumstances," the Court held that "the employee's injury occurred in the course of her employment."
Bottom line. In Tennessee, on-call employees injured while driving to or from work do not automatically qualify for workers' compensation benefits. Courts will review each case under the "totality of circumstances" factors set forth in Shannon v. Roane Medical Center. However, it should not be difficult for on-call employees to satisfy at least three parts of the four part "totality of the circumstances" test:
- Employees are generally paid for time spent on-call;
- Typically employees are limited/restricted while in on-call status; and,
- Employees are placed at greater risk by being required to travel more frequently to and from work.
Since the Court left this to a case-by-case determination, it appears the real test may be whether the employee can establish that the on-call program provides a significant benefit to the employer. If so, after Shannon v. Roane Medical Center, employers should expect courts to find the injury to have occurred in the course of employment and the "coming and going rule" will not disqualify an on-call employee from workers' compensation benefits. If you have any concerns about the classification of your on-call employees, please contact a member of Butler Snow's Labor and Employment group.
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