Worker’s Compensation Awarded to Carpooling Employees
Kegler Brown Construction Newsletter November 1, 1998
The Ohio Supreme Court recently issued a decision which may have a significant impact on subcontractors in Ohio whose work requires that their employees travel significant distances to perform jobs on their customers' premises.
In order for an injury to be compensable under the Ohio Workers' Compensation Law, the injury must occur "in the course of" and "arise out of" an employee's employment. The general rule is that if a worker has a fixed site of employment, injuries that occur "coming and going" from that fixed site are not compensable. As the following case shows, however, the "coming and going" rule does not always apply to defeat an application for compensation, even if the court has to stretch to find the employee has a fixed site.
In Ruckman v. Cubby Drilling, Inc., the injured workers were members of a drilling crew, whose work called for the drilling to be done at customers' premises throughout a three state area. The employees were injured while carpooling to a work site. They were nowhere near the work site, had arranged the carpool themselves without the cooperation of the employer, and did not carry with them any tools or equipment. Furthermore, the employees received only a small "per diem" allowance for their travel.
The Ohio Supreme Court undertook an interesting analysis to find that the employees were entitled to workers' compensation benefits. First, the court found the workers were "fixed site" employees despite the fact that the actual location where they performed drilling duties generally changed every three to ten days. The court held that the fixed site was the customers' premises because the employees had no duties to perform away from the drilling sites to which they were assigned.
The court next found the injury occurred "in the course of" the workers' employment. The "in the course of" requirement concerns the time, place and circumstances of the injury. Here, the court found the injuries occurred while the workers were performing a required duty in the employer's service, namely, driving to the customers' premises to perform the drilling. That is, the workers were in the course of their employment because they had to travel to the premises of the employer's customer to satisfy a business obligation.
The court then analyzed the "arising out of" requirement to find that a causal connection existed between the injuries and the job. The court examined the totality of the circumstances and noted the accident did not occur anywhere near the work site, the employer had no control over the scene of the accident, and the employer did not receive any benefit from the workers' presence at the scene of the accident. Nonetheless, the court found the injuries "arose out of" the employment because of the Special Hazard to which the nature of the job exposed the workers. The court focused upon the temporary nature and changing location of the fixed work sites and the broad geographical range in which they are located. While noting that most employees can fix the distance of their commute as a matter of personal choice, the workers here had no such option. Consequently, the court found the significantly increased exposure to traffic risks associated with highway travel to be a Special Hazard. Finally, it is interesting to note that the court did not consider the "per diem" allowance to be significant in reaching their determination in this case.