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A Request is not “special” if it is “typical”

Robert Gruber

One of the first things we learned as newly mentored workers’ compensation attorneys is that an injury or accident that occurs while traveling to or from work is outside the course and scope of employment and, therefore, not compensable.  The South Carolina Workers’ Compensation Statute and case law have long held that workers are not actually “at work” while traveling to and from work; therefore, any injuries that occur traveling to and from work are non-work related.  Given the very fact specific nature of these types of cases, our case law has carved out five (5) exceptions to this rule that, if present, will bring an injury or accident occurring on the way to or from work into the course and scope of one’s employment. They are as follows:

  1. The means of transportation provided by the employer, or the time that is consumed is paid for or included in the wages;
  2. The employee is still charged with some duty or task in connection with his employment while he is traveling to or from his work;
  3. The way to work is inherently dangerous and is either the exclusive way or is constructed and maintained by the employer;
  4. The injury occurred in close proximity to the work place and there is an expressed or implied requirement that the employee use the approach in going to and coming from work; and
  5. An employee is injured “while performing a special task, service, mission or errand for his employer even before or after customary working hours or on a day in which he does not ordinarily work.”

The South Carolina Court of Appeals recently considered the going to and coming from rule and its five exceptions in the case of Wofford v. City of Spartanburg. Mr. Wofford was a superintendent of Parks and Recreation for the City of Spartanburg until he died in a motorcycle accident while traveling from his mother’s home to one of the city’s recreation centers. Mr. Wofford received a call on the morning of his death from the city’s aquatic director who asked Mr. Wofford to meet her at the city’s swim center to sign some forms and retrieve a key from one of the city’s recreation centers. The aquatics director (Ms. Ballew) testified that Mr. Wofford’s response was that he was going to go to the recreation center to get the key and then he would travel to the swim center to sign whatever forms were required. Other testimony presented to the Commission indicated that the claimant was frequently in touch with employees or supervisors during his work day via telephone, text or other means of communication and that even though he had an office to work out of, he frequently worked out of one of the city’s recreation centers. However, there was one additional piece of testimony that may have affected the Commission’s and ultimately the Court of Appeals’ view of the case and its facts.

The claimant’s mother testified at the hearing that the claimant came to her house on the morning of the accident to pick up his motorcycle, which he stored at her home. The claimant’s mother testified that her home was in the opposite direction of the claimant’s office and that she recalled the claimant receiving two business related phone calls while he was visiting her; finally, the claimant’s mother testified that the claimant was at her house for approximately three hours before he left telling her that he was “on his way to work.”

Mr. Wofford’s widow and surviving child filed a claim for benefits; the Defendant City of Spartanburg denied the Wofford’s claim arguing that his injury and resulting death occurred while he was traveling to work and that none of the 5 exceptions applied. The South Carolina Workers’ Compensation Commission found that Mr. Wofford was not in the course and scope of his employment when his accident occurred and that none of the five (5) exceptions to the going to and coming from rule applied to the case.  Further, the Commission found that, even if the claimant was in the course and scope of his employment when his accident occurred, his initial trip to his mother’s house was a substantial deviation, which took him outside of the course and scope of his employment.  Finally, the Commission found that the special errand exception to the going to and coming from rule did not apply to this case.

The Wofford’s appealed the Commission’s decision to the South Carolina Court of Appeals and argued, in a general way, that Mr. Wofford was on a “special task or errand” when he had his accident because he was going to retrieve a key at the request of his supervisor.  The Court of Appeals reviewed a number of prior cases and, in affirming the Commission, wrote in part “[k]ennedy, Wofford’s supervisor, also testified retrieving a key and signing forms for Ballew were within Wofford’s ‘typical job responsibilities.’”  The Court ultimately concluded that the typical nature of Mr. Wofford’s task was more important than the fact that Mr. Wofford’s supervisor had asked him to go to a specific place to retrieve a specific item.

Going to and coming from cases are rare, and they always come down to specific factual allegations regarding what the claimant was doing at the time of his injury or death and why he was doing it.  A special task or special errand sufficient to bring an injury into the course and scope of employment should be one that is emergent, unusual or a unique or “special” service to the employer.  A simple request does not necessarily rise to that level.