Two nurses could collect workers compensation benefits for separate auto accidents that happened while they were driving to see housebound patients — even though they weren’t paid mileage for the trips, the Workers’ Compensation Commission has ruled.
Commissioners said the claims were compensable despite the going and coming rule because car travel was a necessary, essential and integral part of the claimants’ jobs as home health nurses. The accident in Manley v. Maxim Healthcare Services (South Carolina Lawyers Weekly No. 020-005-07, 12 pages) occurred while the claimant was traveling from the home of one patient to the next.
The nurse in the second case, Williams v. Prestige Home Support and Home Health Care (South Carolina Lawyers Weekly No. 020-004-07, 34 pages), was injured when her car collided with stray cattle while she was driving to her first appointment of the day.
Appellate panels in both matters adopted orders from the single commissioners who heard the cases and awarded benefits. The decisions are significant because they show the commission’s willingness to find accidents to be within the scope of employment, even where claimants were arguably on their way to work and weren’t expressly compensated for travel time.
Greenville lawyer Richard V. “Ric” Davis, who represented the Manley claimant, said the availability of comp for home health nurses injured in transit remains an unsettled question at the appellate level. “I’m surprised that there hasn’t been a decision at the Supreme Court on this issue,” Davis told Lawyers Weekly.
He said the commission’s rulings have acknowledged that benefits are appropriate in such cases because driving is implicit in the nurses’ job description, similar to that of a traveling salesman.
“The essential element that makes the cases compensable — which the commission has recognized even in a very conservative environment — is that travel is an essential element of this job. You can’t ignore that factor because that’s part of the risk of the employment. This job can’t be performed unless the employee travels to the homes,” Davis said.
The claimant’s attorney in Williams, Stephen J. Wukela of Florence, agreed.
“I think what the commissioner properly found was that accidents with traveling nurses — as with traveling salesmen, truck drivers and all types of traveling employees where the work creates the necessity for the travel — arise out of the course of employment,” Wukela said.
He said the employer has appealed his client’s case to Circuit Court.
The two comp awards stand in apparent opposition to appellate rulings in North Carolina, whose comp system served as the model for South Carolina’s.
The N.C. Industrial Commission has denied claims from home health nurses based on the going and coming rule after a decision from that state’s Appeals Court in Hunt v. Tender Loving Care Home Care Agency, 569 S.E.2d 675 (2002).
Deborah Manley was injured in a car wreck on June 9, 2006, while she was driving from the home of one patient to see the next patient on her schedule.
The accident happened when another driver crossed the center line and hit the claimant’s car head on. She suffered injuries to her left shoulder, arms, hands and neck. The claimant has not worked since the accident.
Commissioner G. Bryan Lyndon awarded benefits.
“I find as a fact that travel between the homes of two patients, if uninterrupted by a substantial deviation, is deemed to be within the course and scope of the employment,” Commissioner Lyndon wrote.
He said that travel was a necessary part of the claimant’s employment, even though she was not paid for time spent in transit.
“Once the claimant reported for work at the home of her first patient, she was effectively ‘on the clock,’ and the fact that she had to travel to another location before she would be paid for additional work time does not remove her from the course and scope of employment,” the order states.
Davis, the claimant’s lawyer, said a few distinguishing factors made his client’s case easier.
“She was traveling between patient A and patient B when the accident happened. Had she been going back to her home from patient A’s house, I think the employer’s argument would have been stronger, though I still think that the commission would have said this is a case where the transportation is such an integral part of the job that it doesn’t fall within the going and coming rule,” Davis said.
On Jan. 12, 2006, Pearl C. Williams was driving from her home in Effingham to see her first patient of the day in Mullins, nearly an hour away. On her way, the claimant hit some cows that had wandered onto the highway.
The wreck caused injuries to her neck; her right shoulder, arm, hand, hip, knee and leg; and her left knee. She also suffered psychological problems, including nightmares about cows, according to the single commissioner’s order.
Commissioner Andrea Pope Roche rejected the employer’s argument that the going and coming rule barred compensation.
“I find that the claimant was a home health care nurse, that the very nature of home health care is to provide mobile nursing assistance, and that her travel to [the patient’s] house was a necessary and integral part of the defendant’s business and claimant’s employment,” Commissioner Roche wrote.
She further found that the claimant had received a raise in part to compensate her for traveling longer distances — even though the employer said she would have gotten a raise regardless.
“Even assuming she was not paid by the employer for her travel, the employer admits specifically that the claimant’s work, and indeed the work of all the employer’s traveling nurses, created the necessity for travel. Without travel to the home of a patient, there can be no at-home nursing care,” the order states.
Since travel was a necessity of the job, her accident was within the course of the claimant’s employment, the single commissioner said.
As published in Lawyers Weekly.
For more information on this subject matter, please refer to the section on Workers Compensation.