Accidents While the Employee is Traveling (or Commuting) in Louisiana Workers Compensation

City Park, New Orleans, Louisiana

The Commuting Employee in Louisiana Workers Compensation

Accidents While Traveling To and From Work 

Unfortunately, accidents that happen while going to or from work from home generally are not covered by Louisiana workers compensation.  

This is because Louisiana courts have found that an employee who is commuting to or from work is not in the course of his or her employment.

Generally, the employee who is proceeding to or from work either on foot or in a vehicle not provided by the employer is outside the course of his or her employment at all times until he or she reaches the employer's premises.

This general rule - sometimes called the “coming and going rule” - is so well accepted that in order for the employee to succeed in his or her case, the employee must show that he or she falls under an exception to this rule.

Exceptions to the Coming and Going Rule

But there are certainly exceptions to the “coming and going rule.”  These exceptions include the following circumstances:

    1. If the employer pays the employee for travel time, provides a company car, or reimburses the employee for travel costs.
    2. If the employee is injured traveling from one work site to the next.
    3. If the employee is injured traveling (even from home) with some duty, which he must perform for the employer en route.
    4. If the accident happens on the employer's premises.
    5. If the operation of a motor vehicle is one of the employment duties of the employee.
    6. If the employee was injured at a dangerous place adjacent to his employer's location (also known as the threshold doctrine).

As noted above, an employee who gets in an accident while commuting to or from work is not within the course of his employment and thus not covered by Louisiana workers compensation.  

However, an exception exists in regards to accidents occurring at certain unusually hazardous places, which, although not on the employer's property, are immediately adjacent to the employer's property. This exception is known as the “threshold” doctrine.

Accordingly, the threshold doctrine applies only when there exists a distinctive travel risk for the employee is going to or coming from work, and this risk exists in an area immediately adjacent to his place of work.

Employees traveling to work or from work will be covered by workers compensation under this threshold doctrine.

Distinctive Travel Risk

Under the threshold doctrine exception, the employee must show a “distinctive travel risk.” What does this mean?  

Basically, a distinctive travel risk is a risk which is different in kind from the dangers under which the general traveling public is exposed.  

For example, most workers do not take a boat or plane to work. Nor do most employees have to travel down an access road to the employer's premises that is unusually congested one (particularly if the congestion was caused by the employer's operations). In these situations, if the employee gets in an accident in this immediate dangerous area while moving to or from his place of work, then the employee is covered by workers compensation because the employee is acting within the course of his employment.

For injuries occurring on a road or highway, there must be a highway risk that is peculiar and distinctive, and riskier than usual.  Usually, this means railroad tracks, tunnels, bridges, covered wharves, and other hazards that the general public does not often encounter. Dangerously defective road conditions might be included if they exist adjacent to the working premises.

Immediately Adjacent to the Employer's Premises

The second condition of the threshold doctrine requires that the dangerous area be immediately adjacent to the employer's premises.

Otherwise, every employee who was injured during a commute in hazardous conditions would have to be covered under workers compensation.

Often, any dangerous condition that an employee encounters next to an employer's premises is covered by worker compensation.  This even sometimes includes a neighborhood with a high crime rate.  

For example, in one case, an employee that worked in an office building in New Orleans left work at the end of the day and walked two blocks to a lot where his car was parked. At the parking lot, he was murdered by two men. This employee's family received workers compensation benefits under the threshold doctrine because he was in the course of his employment while murdered in an extremely high crime area near his office.

An injured employee will be covered by workers compensation if the employee is injured in an accident while commuting to work if the transportation is provided by the employer.

This rule applies whenever the transportation to and from work is part of the employment agreement. In fact, it doesn't even matter if the employer provides a driver, or provides a vehicle for the employee's use, or merely pays the cost of fuel for the employee's own vehicle.  

If the employer is paying the travel expenses, then the employee is covered by workers compensation.  

Even if the employer simply intended to reimburse the employee for his travel or to provide gasoline, the employee is still covered by workers compensation.

It does not matter if the employer provides the transportation only for occasional use, or if the employee has to substitute his own vehicle due to an issue with the employer's vehicle. The employee is still covered by workers compensation.

Travel Accidents Between Places of Work Or While Performing Job Duties in Louisiana Workers Compensation

An injured employee will be covered by workers compensation if the employee is injured in an accident while following orders or performing the employee's duties, even if the accident occurred away from the employer's premises.  

This includes accidents when the employee is traveling between places of work.

In fact, it does not matter if the work being done at the time of accident was not within the scope of the employee's job, so long as it was being performed under the orders of the employer (or the employer's representative).

So if a supervisor at work instructs an employee to do something, and the employee is injured doing it, then the employee is covered by Louisiana workers compensation.

Also, if an employee is expected to perform some specific task for the employer after arriving at his or her home at the end of the day's work, then the employee is covered under workers compensation if the employee is injured on the way home. This is an exception to the rule that an employee who is injured during the commute to or from work is not within the course of his employment and thus not covered under workers compensation.

Generally speaking, a traveling employee will typically be covered by workers compensation if the employee is injured in an accident while traveling for work.  

However, the rules vary greatly from case to case as to whether the injured employee will be covered, depending on the specific facts of each case.

For example, when the traveling employee is injured or killed while traveling from one place of work to another (such as if the accident was a collision on the road), the employee will be covered by workers compensation because the accident happened during the course of the employee's employment.

Also, if a traveling employee deviates from his or her usual route for personal reasons, then the employee will typically be covered by workers compensation if the employee is injured during the deviation.  But, if this employee turned back in the direction of his business destination for the purpose of discharging his duties to his employer, then this employee will typically be covered by workers compensation.

Last, if a traveling employee suffers an injury from a “personal” risk which the employee incurs while traveling — such as a fall in the shower in a hotel, injury or death by fire at his place of lodging, or death at the hands of unidentified assailants -  then the traveling employee may be covered by workers compensation.  But not definitely.  Typically, the Courts will have to make a tough call in situations like this, based on the individual facts of the case, and the decision could go either way. 

The Louisiana Statute on Accidents In the Course and Scope of Employment in Louisiana Workers Compensation

The primary Louisiana statute on accidents in the course and scope of employment is La. R.S. 23:1031, which reads as follows: 

§1031.  Employee's right of action; joint employers, extent of liability; borrowed employees

A.  If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.

B.  In case any employee for whose injury or death payments are due is, at the time of the injury, employed and paid jointly by two or more employers subject to the provisions of this Chapter, such employers shall contribute to such payments in proportion to their several wage liabilities to the employee; but nothing in this Section shall prevent any arrangement between the employers for different distribution, as between themselves, of the ultimate burden of such payments.  If one or more but not all the employers are subject to this Chapter, then the liability of such of them as are so subject shall be to pay that proportion of the entire payments which their proportionate wage liability bears to the entire wages of the employee; but such payment by the employers subject to this Chapter shall not bar the right of recovery against any other joint employer.

C.  In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a "special employer", and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a "general employer", shall be liable jointly and in solido to pay benefits as provided under this Chapter.  As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability.  Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed.  The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.

D.  An injury by accident shall not be considered as having arisen out of the employment and is thereby not covered by the provisions of this Chapter if the injured employee was engaged in horseplay at the time of the injury.

E.  An injury by accident should not be considered as having arisen out of the employment and thereby not covered by the provisions of this Chapter if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee's employment.

Acts 1989, No. 454, §2, eff. Jan. 1, 1990; Acts 1997, No. 315, §1, eff. June 17, 1997.

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