NY workers’ compensation covered TBI from car crash for traveling employee

New York court agreed that workers’ compensation claimant given the option to stay at a hotel near remote worksite who was injured in an accident on the drive to site was covered.

When a New York worker sustains an injury or illness that arose out of and in the course of employment, workers’ compensation is the appropriate legal remedy. A complex question that can arise is whether an injury that happens during the work commute or when otherwise in a vehicle in relation to the job arose out of and was in the course of the job. The answer to this question can determine the success of the related workers’ compensation claim.

At Silverman, Silverman & Seligman, P.C., in Schenectady, our attorneys regularly help to resolve these issues for our workers’ compensation clients throughout the Capital District, including Schenectady, Albany and Troy. If you sustain injury in a work-related motor vehicle or another kind of commuting accident, call us at 518-631-4521 as early as possible so we can lay the groundwork for your claim right out of the gate, giving us the opportunity to thoroughly investigate. Our early involvement may cut months and years off the claims process and help get your benefits approved.

The traveling employee exception

A recent court decision illustrates the nature of the commuting worker issue. On April 16, 2020, the Supreme Court, Appellate Division, Third Department in Matter of Wright v. Nelson Tree Service et al agreed with the Workers’ Compensation Board’s ruling that Christopher Wright’s traumatic brain injury (TBI) suffered in a car accident on his way to a remote work site to clear brush and trim trees near power lines arose out of and in the course of employment.

The trimming job was several hours from Wright’s home and the employer gave him and his colleagues the option to stay at a hotel near the worksite, which they did. The employer paid them $65 daily to help with lodging and food. Each morning, they drove to a parking lot to pick up their employer’s bucket trucks for the job. On the drive to the parking lot, Wright was in a car crash and sustained the TBI.

After a hearing, the workers’ compensation law judge (WCLJ) denied Wright’s claim as not arising out of and in the course of employment. Wright appealed and the Workers’ Compensation Board reversed the WCLJ. The employer and its insurer appealed to the court, which agreed with the Board that the claim was appropriate.

Legal reasoning

The going-and-coming rule in workers’ compensation law says that workers’ compensation does not cover an injury sustained during a normal commute to or from work because it does not arise out of and in the course of the job. Several exceptions to this may apply, however, if there was some aspect of work present.

The court said that substantial evidence supported the Board’s conclusion that the traveling employee exception applied. If an employer requires an employee to travel for work, workers’ compensation will cover injuries so long as at the time of injury, the employee was engaged in “reasonable activity,” even if not a direct job duty. Even though the employer presented the hotel stay as optional, commuting six hours would not have been practical, so his “status as an employee continued throughout his stay away from home,” and it was reasonable to commute to the parking lot to get the truck.

We encourage you to contact Silverman, Silverman & Seligman, P.C., for a free initial consultation about how we can help you with your workers’ compensation claim. We may be able to assist at any stage of the application or appeal process, although the earlier, the better. We have been doing this work for decades and thoroughly understand the ins and outs of issues related to commuting and traveling.