Alabama Workers' Comp Blawg

Alabama Court Addresses Exception to Coming and Going Rule

Hospice Family Care v. Joseph Allen, dependant spouse of Suzanne Sharp Allen, deceased
Released June 10, 2016

This case was on appeal from the Madison County, Alabama Circuit Court who ruled the employee’s dependant spouse was owed burial and death benefits in accordance with the Alabama Workers’ Compensation Act. The issues brought up on appeal by the employer were 1) Was the claim barred by the coming and going rule, 2) Was the claim barred due to the employee deviating from her employment, 3) Was the employer entitled to set-off for certain insurance benefits provided by the employer and 5) Was the trial court correct in awarding $6,500.00 in burial expenses.

The employee was a nurse on the day shift from 8:00 a.m. to 4:30 p.m. Her responsibilities included driving to patient’s homes, recording a voice message for the benefit of the night nurse who would take over for the patient, and then entering billing codes and charting on each patient within 24 hours of the visit. The billing codes, voice message and charting could be done anywhere, and employees were encouraged not to come back to the office to chart, with a laptop provided by the employer. As a part of the employment the employee received life and accidental death & dismemberment insurance paid for by the employer. The employee was also reimbursed milage for travel but not the mileage from the last patient’s home to the employee’s home. The employer required that all day shift nurses be available, should a patient call, until 4:30, unless they submitted a leave of absence form.

On February 3, 2014, the employee in this case had called her spouse and informed him she was leaving her last patient’s home and on her way to their home. The employee informed her spouse that she was stopping at the pharmacy to pick up a personal prescription and then would be home. After stopping at the pharmacy the employee was on her way home and involved in a motor vehicle accident that resulted in her death. The accident occurred before 4:30 p.m. At the time of the accident she had not recorded the voice message for the night nurse nor had she completed her billing entries, voice message or charting.

Testimony by the employee’s spouse at trial established that it was common for the employee to come home and work several more hours, which included phone calls to patients, a phone call to the employer and charting. The employer acknowledged that this was actually encouraged that they do this from home or some other location other than the office. The employer also acknowledged that if a nurse, a salaried employee, got home before the end of their shift they were still paid the same. The employer further acknowledged that employees were allowed to complete personal errands during their shift, such as picking up a prescription without requesting permission or leave, they just had to be available to meet a patient’s needs until the end of their shift.

The Alabama Court of Civil Appeals ruled that the while the coming and going rule may be applicable, the subject case fell within an exception to the rule, “when and employee, during his travel to and from work, is engaged in some duty for his employer that is in furtherance of the employer’s business.” See Tucker v/ Die-Matic Tool, Co., 652 So. 2d 263, 265 (Ala. Civ. App. 1994). The Court of Appeals ruled that at the time of the accident the employee was still acting in furtherance of the employers business affairs and the deviation to pick of the prescription was not substantial and had ended at the time of the accident, therefore, the accident arose out of and occurred in the course of her employment. The factors they pointed to are as follows: 1) The employee was required to be available until 4:40 p.m. and the accident happened before that; 2) The employer furnished the employee with a cell phone and laptop; 3) The employer encourage the employee to do charting from her home or another location and actual discourage returning to the office to do it; and 4) The employee had not requested to leave before 4:30 p.m. as required if she wanted to do so. Therefore, they found the employee’s journey home was in furtherance of the employer’s business and she was still fulfilling her duties.

In addressing the set-off issue the Alabama Court of Civil Appeals pointed out that the employer was arguing that workers’ compensation was not designed for double recovery and for the employee’s dependants to receive the employer provided death benefits, as well as workers’ compensation death benefits, would amount to double recovery. The Court said that was true as to third party liability cases. The employer’s argument on this issue focused on §25-5-57(c)(1), which says if the employer paid for the benefits or plan, the employer may reduce the amount of benefits paid under worker’s compensation pursuant to the amount of benefits paid under the disability, retirement or another plan providing for sick pay, and/or §25-5-57(c)(3), which says if an employer continues salary or similar benefit of an injured employee during the benefits period, the employer can set of both of which reference an employer being entitled to a set off in weeks against the compensation owed. As for §25-5-57(c)(1), the Court of Appeals stated it did not apply because the life insurance and accidental death benefits were not a disability plan, retirement plan or another plan providing for sick pay. As for §25-5-57(c)(3), the Court of Appeals stated the plain language of the statute applied to an “injured employee” during weeks salary or similar benefits were continued while the employee could not work, not a deceased employee.

As to the issue concerning the amount of burial expenses, the employee conceded the trial court was in error awarding $6,500.00 so the Court of Appeals did not address it and instructed the trial court to award the appropriate amount under the Act.

MY TWO CENTS

As far as the burial expenses, I would suspect that the amount was reduced to $3,000.00 because that was the applicable amount at the time of the accident, even though $6,500.00 was the applicable amount at the time of the trial.

About the Author

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.