Course and Scope: A Case of Flag Waving

May 5th, 2005 by

We stumbled upon a workers comp case in South Dakota illustrating one of the more interesting technicalities of workers comp: coverage begins when you are “working” — but when are you working? There are times when injuries suffered while travelling to the job site are covered and situations when they are not. Because the vast majority of American workers do not have their own disability insurance, the determination of eligibility for comp is crucial. If you are “in the course and scope” of employment, your medical bills are paid and you receive a percentage of your average weekly wage during recovery. If you are not “working,” you have to pay medical bills yourself, you owe co-pays on your prescription medications and you have no income during your disability.
Heading off to Work
The South Dakota case, outlined in the Rapid City Journal, involves a woman whose job involved flagging motorists on an interstate construction project. She reported to a quarry in Rapid City, where employees of Hills Materials traditionally assembled for the workday, and then drove 125 miles to a distant site where she was to flag motorists at the roadway construction site. She never made it to the site: she fell asleep while driving and crashed the car. The company, and its insurer, are fighting the claim all the way to the South Dakota Supreme Court. They argue that she was heading to work — she was not yet at work — when the accident occurred. They also brought up the issue of misconduct, as the employee may have been speeding, she fell asleep at the wheel and she was not wearing a seat belt. (Because workers comp is “no fault,” the alleged misconduct is not relevant, unless it reaches the level of “willful intent.”)
I was intrigued with the company’s argument that allowing this claim would open the door to even more frivolous claims. Their lawyer queried: “If she fell in the shower, could she claim workers compensation for that? Or if she fell out of bed the night before when she was resting up for work? Where do you draw the line?”
I personally draw the line at sound legal reasoning, which appears to have been crossed, at least in this brief quote from the defense. In most states, the beginning of the workday would be the quarry. But even if the employee had headed off to the distant jobsite directly from home, the long journey would likely be part of her work day. The 125 miles is hardly a regular, well-established commute. The lower court judge has raised the right issues and to my mind reached the right conclusions. I suspect that the South Dakota Supreme Court will do the same.
Taking Care of Your Employees
In my semi-official grandstanding position as a workers comp blogger, I think it is unfortunate that the employer chose to fight this case. Their opposition sends the wrong message to all of their employees. They should have accepted the case, supported the employee during her recovery and welcomed her back as soon as possible. Given her job as a flag waver, they could probably accommodate her restrictions and bring her back on light duty. That would be far better strategy than dragging what appears to be a losing case through the courts.