Does the Positional-Risk Test trump the Going and Coming Rule?

In Maryland, covered employees are entitled to compensation for injuries that arise out of and in the course of employment, with limited exception. One such exception is the Going and Coming Rule, a hallmark of MD comp law. The Rule generally precludes compensation for injuries incurred while an employee is traveling to and from work. The rationale is that employees ordinarily do not further their employer’s interests during their commute, nor do they face any greater risk of harm than do other members of society who also use public roadways, sidewalks, etc.

Although the Going and Coming Rule is relatively straight-forward on paper, its real-life application is not always as easy. This is because the outcomes in Workers’ Compensation cases are entirely dependent on the facts of a given case. A perfect example of this is the Court of Appeals’ recent decision in Roberts v. Montgomery County, 436 Md. 591 (2014). This case appeared to be an obvious case where the Going and Coming Rule would control, but surprisingly, was deemed wholly inapplicable by the Court.

The issue in Roberts was whether a county firefighter was entitled to compensation for an injury sustained on a motorcycle while en route to pick up mail at his regular fire station. At the time of the accident the employee was on “light duty” because of a pre-existing injury, and was assigned to department headquarters instead of his regular fire station. Despite being stationed elsewhere, the employee would return to his regular fire station approximately once per month to retrieve his mail, and his supervisors were aware of this practice.

On the day of the motorcycle accident, the employee was traveling to pick up his mail at the fire station after attending a physical training session at a Maryland high school. The fire department encouraged all firefighters on light duty to engage in physical training for two hours per shift at a location of the employee’s choosing. On the date of the accident the employee began his shift at the physical training session and thereafter was due to report to headquarters, which he presumably planned to do after the detour to pick up his mail.

The Workers’ Compensation Commission, Circuit Court and Court of Special Appeals all denied compensation after concluding that the employee did not suffer a compensable injury. Both the circuit and appellate court determined that the accident occurred while the employee was “going” to work. In an unreported opinion, the Court of Special Appeals explained that because the employee was on light duty and assigned to headquarters, he could not be considered “at work” until he reached that particular destination. Accordingly, the Going and Coming Rule barred compensation.

Eventually the Court of Appeals granted certiorari and reviewed the case. Although the decisions below were based on the Going and Coming Rule, Maryland’s highest court took a different approach. The Court utilized the “positional-risk” test, which asks whether an injury would have happened “but for the fact that the conditions and obligations of employment placed the employee where the injury occurred.”

The employee asserted that his employment was the but for cause of injury because he would not have been in the motorcycle accident had he not been traveling to pick up his mail before reporting to headquarters. In opposition, the County relied on the Going and Coming Rule and argued that the fire station did not constitute a “work-related site” while the employee was on light duty.

Generally, the Going and Coming Rule does not apply to travel from one job site to another, especially if an employee is on the clock during travel time. For that reason, the County argued that the employee was not traveling between “work-related sites,” but instead was picking up his mail at the fire station on his own accord. Further, because the trip to the fire station was not “work-related” and because the employee was on light duty, the County posited that the Going and Coming Rule applied until the employee reached headquarters.

The Court of Appeals disagreed and held, in contrast to the rulings below, that the Going and Coming Rule did not apply to the circumstances presented in Roberts. Instead, the Court found the employment relationship to be the but for cause of injury, and deemed the employee’s injury compensable under the Workers’ Compensation Act. Particular emphasis was placed on the fact the employee was encouraged to attend physical training during shift hours, and also on the fact that the employee’s supervisors were aware that the employee would occasionally pick up his mail at the fire station while on light duty. The Court reasoned that this equated to “acquiescence” or “implied consent,” which effectively rendered the employee’s travel “incidental to his employment.”

What appeared to be an obvious example of a case requiring application of the Going and Coming was decided on alternative grounds. In contrast with the lower courts, the Court of Appeals determined that the employee’s injury occurred during regular shift hours while “en route from a work-related activity” (i.e. the employer recommended physical training), “to a site where he was to engage in a work-related act, to which the employer acquiesced” (i.e. picking up mail at the fire station). Simply put, because the injury was deemed an incident of employment, compensation could not be withheld “by application of the going and coming rule.”

On its face, Roberts v. Montgomery County may be read to suggest that the positional-risk test trumps the Going and Coming Rule. However, this interpretation is incorrect—Roberts does not establish such a per se rule. Rather, the case is simply an example of how the outcomes in workers’ compensation cases are entirely fact-driven. For example, had the supervisor not been aware of the employee’s practice of picking up mail at the fire station while on light duty, there would not have been any “implied consent” or “acquiescence,” and the outcome in Roberts may have been different. Moreover, if the employee had begun his day by traveling to get his mail prior to attending physical training, and had the injury occurred at that time before regular shift hours began, it is possible that compensation may have been barred by the Going and Coming Rule, regardless of the supervisor’s knowledge of the employee’s mail-retrieval practice.

In short, the outcome in Roberts stems from the totality of the circumstances present in that particular case. It cannot be said to have been based on one single fact, nor on one specific test or rule. That being said, the Court’s logic is sound—the Going and Coming Rule does not apply because the injury did not occur when the employee was en route to start his day; rather, the injury occurred on the clock while traveling between two work-related sites.