We all know that injuries which occur during a claimant’s travel to or from work are not compensable because these injuries do not occur “in the course” of the claimant’s employment. South Carolina recognizes several exceptions to this “going and coming” rule. For instance, when the employer provides the claimant the means of transportation, injuries which occur while traveling to and from work may be deemed compensable. There has been much litigation over the years regarding the meaning of “provide” and “transportation,” and some past commissioners believed that any injury which occurred within a company owned vehicle was compensable under this exception. But Matt’s recent experience with employer provided transportation may provide some guidance.
The claimant in Matt’s case worked for a company that maintained road signs. He would drive to work every day in his own vehicle, pick up a work provided vehicle and then drive to his various assignments that came up throughout the day. At the end of his work day, he would drive the work vehicle back to his employer’s location, pick up his personal vehicle and drive home. There were times, however, when the claimant’s last assignment would be much closer to his home than it was to his work. Under this limited circumstance, his employer would allow him to take the work vehicle home as a convenience. During one of these convenience uses, the claimant was injured while he was driving from his home to his work in the employer’s vehicle.
The employee/claimant argued that he was within the course of his employment because his employer provided him with the means of transportation. The employer/carrier denied the claim arguing that the claimant was not in the course of his employment when his injury occurred. The employer’s permission for the Claimant to use the company truck to travel to and from work was a “gratuitous accommodation” and that the employer provided transportation exception to the “going and coming” rule did not apply to the case.
South Carolina does not have an appellate case on point to support this argument. The nearest approximation is Byrd v. Stackhouse Sheet Metal Works, 317 S.C. 35, 451 S.E.2d 405 (Ct. App. 1994) which involves a claimant who died in an auto accident on his way to work and alleged that he was in the course of his employment because his employer paid him ninety dollars a month for gas money as an inducement to take the job. The Court affirmed the Commission’s denial of the claim because the ninety dollar stipend was not “deliberate and substantial” and the gas money provided did not substantially compensate the claimant for his travel expenses. But this case still does not address gratuity as a factor to determine whether or not the employer had provided transportation.
The North Carolina case Travelers Insurance Company v. Curry, 28 N.C. App. 286, 221 S.E.2d. 75, (1976) involves a claimant who was killed while driving to work in a company vehicle. The employer/carrier denied the claim arguing that the claimant was not in the course of his employment when his accident occurred. The North Carolina Supreme Court denied the case finding that the claimant was not entitled to company provided transportation, he was not required to use company transportation and that his use of company transportation was “gratuitous and merely an accommodation” and that the employer provided transportation exception did not apply.
The single commissioner who heard Matt’s case accepted Matt’s argument and, applying the North Carolina Curry case, found that the claimant’s use of the company truck was “gratuitous and mere accommodation” and that the employer provided transportation exception to the going and coming rule did not apply to the case.
Perhaps the Commission is scrutinizing cases involving employer provided transportation more now, or perhaps Matt is just a great lawyer. Either way, please look carefully at the circumstances of cases involving employer provided transportation before accepting these cases, and please call us with any questions you may have.
*This result does not necessarily indicate similar results can be obtained for other clients.