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Workers' Compensation

On the Road Again: DE Supreme Court Comments on “A Veritable Potpourri of Exceptions to the ‘Going & Coming’ Rule”

First, hats off to Mike Sensor for bringing this case to my attention.   Second, props to defense attorney Maria Newill, scoring another victory for the employer.  Our flavor of the day, as far as case law is concerned, is a recent release from the DE Supreme Court on an issue for which there was enough interest to merit en banc oral argument.  The case is none other than Mary Spellman v. Christiana Care Health Services, No. 315, 2012 (Del.) (April 8, 2013).

Here are the facts:
Claimant is a home health aide employed by Christiana's Visiting Nurse Association.  Her job entailed assisting patients in their homes with items of personal hygiene and light housekeeping.  She was paid by the hour, not compensated for her lunch, and paid for her travel time between patients but not in traveling from her residence to the first patient of the day or traveling home after her last patient.  Claimant was also reimbursed for mileage, but only in travelling from one patient to another.  The claimant would occasionally report to a corporate office for a meeting or to retrieve supplies, which were kept in her personal vehicle.

On the date of the accident, the claimant's work day began checking in on patient #1 and patient #2.  Thereafter, the claimant had "blocked off" several hours of time to allow her to keep a personal medical appointment.  This appointment was pre-arranged with her supervisor.  Travel from the second patient to the medical appointment would not have included mileage reimbursement; moreover, the claimant would not be subject to contact from Christiana Care in this personal time frame.

Approximately one mile from her second patient, and en route to her residence to freshen up prior to her doctor's appointment, the claimant's car hit an icy patch of road way and careened into a tree, producing head and hip injuries.

A tortured path:
The claim was denied at the Industrial Accident Board level with the IAB rejecting both the " travelling employee with a semi-fixed place of business" argument (thus exempting her from the "going and coming rule"), as well as the argument that this was a "mixed purpose" trip sufficient to invoke comp coverage.  The Board found

·   that claimant was "off the clock" and thus not within the scope of her employment
·   that this was not a "special errand" under the Histed case
·   that there was no "mixed purpose" in any way benefitting the employer
·   and that the decision to go home first, then to a personal appointment was so great a departure from work so as to be deemed a temporary abandonment of the job

Of note, the Board commented that had claimant been paid for this travel time or mileage, such would have brought her into course and scope as a travelling employee.

The Superior Court on appeal upheld the IAB decision.  An appeal to the DE Supreme Court followed.

A little vexation perhaps?
Far be it from me to try to crawl into the mind of a Supreme Court justice.  This particular decision was authored by Justice Jacobs.  What really struck me about this opinion, which by the way, affirms the IAB, is what seems to be a swipe taken at our comp law.  Certainly this decision contains a reasoned, if not somewhat confusing, analysis of the issue.  But when I take a careful look at the commentary, I feel just a little incensed on behalf of the age-old doctrines, as I have come to know them.

What am I talking about?
For starters, the author titles one section of the opinion "The Going and Coming Rule and its Multitudinous" exceptions.  And the tone is not exactly one of compliment.  That same section also refers to a "veritable potpourri of exceptions to the going and coming rule".  With the further comment that each exception "appears to have attained, over time, the status of a substantive doctrine of law." [And what is wrong with that?]  Then there is a dig at "another carve out" of the going and coming law, the "so-called" compensation exception.  Is it me or did Justice Jacobs have a little bit of chagrin at the various anomalies to the general rule......dare we  even call it a "doctrine" after this?

The Court states that it is concerned not with the going and coming rule but with "the profusion of exceptions" and their treatment "as statutorily derived, free-standing rules of law."  [And aren't they, in a manner of speaking?]    Allow me to share the following from the decision:

The critical point here is that the going and coming rule and its multiple exceptions are not statutorily derived rules of substantive law.  Rather, they are only aspects or elements of a more fundamental inquiry, namely, whether, under the totality of circumstances, the employment contract between employer and employee contemplated that the employee's activity at the time should be regarded as work-related and therefore compensable. 

I asked Maria Newill, still basking in the glow of victory, what she though this meant.  Heck, if anyone should know it should be her.  I find the decision confusing and hyper-critical of the way those of us in practice for a decade or more (or in my case, three decades) have always looked at this issue.  Maria's take:

I found it very confusing also.
I think they are saying the first step is to determine 'scope of employment', which is done by first looking at the employment contract to determine the understanding between employer and employee.  The key is to first look at scope of employment and arising out of employment, before getting to going and coming and its possible exceptions.  If you are not in course and scope of employment then it is irrelevant whether you are going or coming or whatever..... The exceptions to the going and coming rule are not law but merely analytical tools except for 'special errand' or 'travel compensation exceptions'.

Maybe it's all about using a less tortured means of arriving at the same result.  I have become rather attached to the old way, however, being a creature whose legal perspective is about as wedded to the case law as I am to my husband.

And to borrow from Rascal Flatts.....God bless the broken road...... :>)

Irreverently yours,
Cassandra Roberts

    Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

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