Was worker 'traveling employee' when injured in company car after-hours?
The worker was allowed to use the vehicle to and from work as well as for incidental personal trips on the way to the job.
Considering the going-and-coming and traveling provisions of workers’ compensation laws, Florida’s First District Court of Appeals found that a compensation claims judge erred in finding an employee was owed compensation for injuries he sustained while traveling from his final service call in an employee-owned vehicle.
Aaron Kohlun, an air conditioning service technician with Kelly Air Systems, was authorized to drive an employer-provided car to service calls, but he was also allowed to use the vehicle to and from work as well as for incidental personal trips on the way to and from work, according to the appellate court’s opinion filed Wednesday.
Kohlun was not required to drive the vehicle to and from work, but he was allowed to do so at his convenience, the opinion said.
At the time of his injury, Kohlun was traveling from his final service call location and he informed his supervisor that he had finished work for the day, the opinion said.
Looking to workers’ compensation statue 440.092 — regarding special requirements for compensability; deviation from employment; and subsequent intervening accidents — the appellate court reviewed the “going-or-coming” and traveling employees provisions, which defines out of workers’ compensation coverage injuries that occur while an employee is traveling to and from work and permits compensability for employees while in a “travel status,” respectively.
Compensations Claims Judge Frank J. Clark concluded that section 440.092(2) regarding the coming-or-going provision did not apply because Kohlun did not have unrestricted freedom to use the vehicle outside of travel to and from work.
The appellate panel looked to its past decisions for guidance on the definition or interpretation of “exclusive personal use,” including the 2001 opinion in Swartz v. McDonald’s Corp.; Evans v. Handi-Man Temporary Servs in 1998; and Securex Inc. v. Cuoto in 1993.
“While these cases do not clearly define ‘exclusive personal use,’ the statutory framework provides an important guidance to resolve the question presented here. Exclusive personal use should be interpreted in the context of the going-and-coming statutory provision where it is found,” Judge Robert E. Long Jr. wrote on behalf of the appellate panel. “This means that the evaluation is whether the employee had exclusive personal use of the transportation while going to and coming from work.”
However, Clark held that Kohlun’s injuries were compensable under section 440.092(4) because Kohlun was a “traveling employee,” or that he was injured while being required to travel in connection with his employment, the opinion said.
Kelly Air System appealed, arguing the employee was no longer on the clock.
Question of ‘travel status’
The appellate court agreed, concluding that Kohlun was not actually in a travel status at the time of injury because injuries suffered while traveling to and from work — even where the employee regularly works in travel status — are not compensable.
“[H]ere the question is not whether the employee is a ‘traveling employee’ — it is whether, at the time of the injury, the employee was in a ‘travel status,’” Long wrote. “This question applies to all employees because it is not a matter of classifying the type of employee. Rather it is the status of the employee at the time of the injury. The language of the statute is clear that injuries occurring while the employee is in ‘travel status’ can be compensable. Travel to and from work is expressly excepted and does not put the employee into a travel status.”
“Kohlun had clocked out for the day and was driving from work at the time of the injury,” Long wrote. “He was traveling in an employer-provided vehicle available for his exclusive personal use for travel to and from work. He was not otherwise being compensated for his travel and cannot be said to still have been ‘at work.’ For those reasons, Kohlun’s injury is not compensable.”
Judges Timothy D. Osterhaus and Thomas D. Winokur concurred.
The panel looked to the first district court’s decision in a 2000 opinion in McCormick v. State Auditor General, in which a state auditor employee was injured while traveling from a job site after completing her work for the day. For this travel, she received compensation.
Thus, the appellate court reversed the compensation claims judge’s order denying compensability under the going-and-coming provision and instead determined that McCormick was in a travel status at the time of the injury because she was being paid for the travel.
“Reading the sections together, ‘going to and coming from work’ contemplates uncompensated travel that is not otherwise connected with employment. 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 beings,” Long wrote. “As McCormick explained, compensation for travel can put an employee into a travel status and bring an employee within the scope of section 440.092(4). In that sense, being in a travel status means the employee is working or at ‘work.’ Like the exclusive personal use analysis, the question of when and how work begins is different for each employer.”
Kelly Air Systems’ attorney, Rayford Taylor, of Hall Booth Smith, explained that each employer may have a different set of circumstances of when the work actual begins, as not all employees arrive at the office to punch a timecard before starting their day. At first glance, McCormick seemed to be the same set of facts as Kohlun, but the appellate court made the right distinction between them.
“I think it’s a very important decision because the court has now told us that it’s not just travel status — you have to look if they were being compensated for their time or in some way compensated for their trips to and from work. That’s criteria that hasn’t really been looked at before,” Taylor told Law.com. “I think it may help in the future to distinguish case A from case B.”
Messages seeking comment were not immediately returned from nor from Nicholas A. Shannin of the Shannin Law Firm on behalf of Kohlun.
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