Legal Trends

Going and Coming Exempt in WC Case

A Pennsylvania court calls into question the limitations on the going and coming rule.
By: | January 10, 2018 • 4 min read

The “going and coming” rule states that workers’ compensation benefits do not apply to injuries sustained while commuting to or from work, but that line in the sand can get a little blurred when the employee is driving a company-owned vehicle.


Such was the case when Shawn Fields and Herman Strother, two employees of Carl G’s Total Cleanouts, transported debris from a job site to a scrapyard. While in transit, the men crashed. Strother was fine, but Fields was injured in the incident.

Fields filed for workers’ compensation, believing his injury occurred on the job. Carl G’s, however, did not see it that way. The demolition and excavation company said that because Fields was off the property at time of injury it was not liable for his comp coverage.

The case was brought before a workers’ compensation judge, who asked Fields to explain how his injury arose in the “course and scope of employment.”

Fields explained the scenario: He and Strother were working at the same job site for about three weeks. One day, when the crew finished up, they decided to take the company truck filled with waste materials and drop them off at a nearby scrapyard. Afterwards, Strother would drop Fields off at home and return the vehicle to the Carl G’s job site.

But instead, the men were involved in an accident. In his argument, Fields said he was an exception to the going and coming rule; he was working for Carl G’s at the time of the accident and injury.

The judge looked to his predecessors. In previous rulings of similar nature, the court found the going and coming rule applied to when there was a fixed place of work. Fields, the judge ruled, had a fixed place of work — Carl G’s crew had been at the same location for three weeks. The judge determined the going and coming rule applied because it was a fixed location, and Carl G’s was not responsible for workers’ comp coverage.

Fields appealed.

The “going and coming” rule states that workers’ compensation benefits do not apply to injuries sustained while commuting to or from work, but that line in the sand can get a little blurred when the employee is driving a company-owned vehicle.

The Commonwealth Court of Pennsylvania looked at the judge’s ruling, re-examining the “course and scope” clause.

“The WCJ concluded that Claimant had failed to demonstrate that the injury occurred in the course and scope of employment because Claimant was commuting home from work at the time of the accident,” the court said. “The WCJ … focused the inquiry on whether Claimant’s place of work was fixed because of the ad hoc nature of his employment.”

The court reviewed Pennsylvania’s exceptions to the going and coming rule, particularly the one in which an employee would receive benefits if they were acting under the company.

Fields was, in this case, traveling to and from a scrapyard for work. His injuries stemmed from part of his job duties and not from a personal commute home, the court decided.

“Based on the facts found by the WCJ and the supporting evidence, there is substantial evidence to support the legal conclusion that Claimant was furthering the business of Employer when he was injured,” it concluded.

Carl G’s was responsible to pay workers’ comp benefits to Fields.

Exceptions to the Rule

There are several exceptions to the going and coming rule that most states acknowledge and turn to when the rule is up for debate.

When an employee is using a company vehicle to commute to or from a location, then the going and coming rule doesn’t apply. In Fields’s appeal, the court looked to this exception when it overturned the workers’ comp judge’s ruling.


Other exceptions include:

If an employee’s job description requires them to be on the road. An example would be someone working in the postal service or cross-country as a truck driver.

If an employee is traveling between multiple job sites. An example would be a computer technician driving from one office building to the next. This does not include the worker’s commute to and from work each day, but instead looks at time spent on the road during a shift.

If an employee is traveling commercially. An example would be a person traveling on a business trip. Typically, the entire time spent away from the office — from beginning of travel to journey’s end — is covered under workers’ comp policies for most businesses.

If an employee is sent out on a special errand. An example would be an employee being asked to grab the manager a cup of coffee from a local shop or pick up lunch for the team.

Knowing the exceptions can better prepare employees and employers on duties that can be performed under the going and coming rule.

To read the full court opinion on Fields’s case, see Shawn Fields vs. Workers Compensation Appeal Board.

Autumn Heisler is a staff writer at Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Risk Report: Marine

Crewless Ships Raise Questions

Is a remote operator legally a master? New technology confounds old terms.
By: | March 5, 2018 • 6 min read

For many developers, the accelerating development of remote-controlled and autonomous ships represents what could be the dawn of a new era. For underwriters and brokers, however, such vessels could represent the end of thousands of years of maritime law and risk management.

Rod Johnson, director of marine risk management, RSA Global Risk

While crewless vessels have yet to breach commercial service, there are active testing programs. Most brokers and underwriters expect small-scale commercial operations to be feasible in a few years, but that outlook only considers technical feasibility. How such operations will be insured remains unclear.

“I have been giving this a great deal of thought, this sits on my desk every day,” said Rod Johnson, director of marine risk management, RSA Global Risk, a major UK underwriter. Johnson sits on the loss-prevention committee of the International Union of Maritime Insurers.

“The agreed uncertainty that underpins marine insurance is falling away, but we are pretending that it isn’t. The contractual framework is being made less relevant all the time.”

Defining Autonomous Vessels

Two types of crewless vessels are being contemplated. First up is a drone with no one on board but actively controlled by a human at a remote command post on land or even on another vessel.

While some debate whether the controllers of drone aircrafts are pilots or operators, the very real question yet to be addressed is if a vessel controller is legally a “master” under maritime law.


The other type of crewless vessel would be completely autonomous, with the onboard systems making decisions about navigation, weather and operations.

Advocates tout the benefits of larger cargo capacity without crew spaces, including radically different hull designs without decks people can walk on. Doubters note a crew can fix things at sea while a ship cannot.

Rolls-Royce is one of the major proponents and designers. The company tested a remote-controlled tug in Copenhagen in June 2017.

“We think the initial early adopters will be vessels operating on fixed routes within coastal waters under the jurisdiction of flag states,” the company said.

“We expect to see the first autonomous vessel in commercial operation by the end of the decade. Further out, around 2025, we expect autonomous vessels to operate further from shore — perhaps coastal cargo ships. For ocean-going vessels to be autonomous, it will require a change in international regulations, so this will take longer.”

Once autonomous ships are a reality, “the entire current legal framework for maritime law and insurance is done,” said Johnson. “The master has not been replaced; he is just gone. Commodity ships (bulk carriers) would be most amenable to that technology. I’m not overly bothered by fully automated ships, but I am extremely bothered by heavily automated ones.”

He cited two risks specifically: hacking and fire.

“We expect to see the first autonomous vessel in commercial operation by the end of the decade. Further out, around 2025, we expect autonomous vessels to operate further from shore — perhaps coastal cargo ships. For ocean-going vessels to be autonomous, it will require a change in international regulations, so this will take longer.” — Rolls-Royce Holdings study

Andrew Kinsey, senior marine risk consultant, Allianz Global Corporate & Specialty, asked an even more existential question: “From an insurance standpoint, are we even still talking about a vessel as it is under law? Starting with the legal framework, the duty of a flag state is ‘manning of ships.’ What about the duty to render assistance? There cannot be insurance coverage of an illegal contract.”

Several sources noted that the technological development of crewless ships, while impressive, seems to be a solution in search of a problem. There is no known need in the market; no shippers, operators, owners or mariners advocate that crewless ships will solve their problems.

Kinsey takes umbrage at the suggestion that promotional material on crewless vessels cherry picks his company’s data, which found 75 percent to 90 percent of marine losses are caused by human error.


“Removing the humans from the vessels does not eliminate the human error. It just moves the human error from the helm to the coder. The reports on development by the companies with a vested interest [in crewless vessels] tend to read a lot like advertisements. The pressure for this is not coming from the end users.”

To be sure, Kinsey is a proponent of automation and technology when applied prudently, believing automation can make strides in areas of the supply chains. Much of the talk about automation is trying to bury the serious shortage of qualified crews. It also overshadows the very real potential for blockchain technology to overhaul the backend of marine insurance.

As a marine surveyor, Kinsey said he can go down to the wharf, inspect cranes, vessels and securements, and supervise loading and unloading — but he can’t inspect computer code or cyber security.

New Times, New Risks

In all fairness, insurance language has changed since the 17th century, especially as technology races ahead in the 21st.

“If you read any hull form, it’s practically Shakespearean,” said Stephen J. Harris, senior vice president of marine protection UK, Marsh. “The language is no longer fit for purpose. Our concern specifically to this topic is that the antiquated language talks about crew being on board. If they are not on board, do they still legally count as crew?”

Harris further questioned, “Under hull insurance, and provided that the ship owner has acted diligently, cover is extended to negligence of the master or crew. Does that still apply if the captain is not on board but sitting at a desk in an office?”

Andrew Kinsey, senior marine risk consultant, Allianz Global Corporate & Specialty

Several sources noted that a few international organizations, notably the Comite Maritime International and the International Maritime Organization, “have been very active in asking the legal profession around the world about their thoughts. The interpretations vary greatly. The legal complications of crewless vessels are actually more complicated than the technology.”

For example, if the operational, insurance and regulatory entities in two countries agree on the voyage of a crewless vessel across the ocean, a mishap or storm could drive the vessel into port or on shore of a third country that does not recognize those agreements.

“What worries insurers is legal uncertainty,” said Harris.

“If an operator did everything fine but a system went down, then most likely the designer would be responsible. But even if a designer explicitly accepted responsibility, what matters would be the flag state’s law in international waters and the local state’s law in territorial waters.


“We see the way ahead for this technology as local and short-sea operations. The law has to catch up with the technology, and it is showing no signs of doing so.”

Thomas M. Boudreau, head of specialty insurance, The Hartford, suggested that remote ferry operations could be the most appropriate use: “They travel fixed routes, all within one country’s waters.”

There could also be environmental and operational benefits from using battery power rather than conventional fuels.

“In terms of underwriting, the burden would shift to the manufacturer and designer of the operating systems,” Boudreau added.

It may just be, he suggested, that crewless ships are merely replacing old risks with new ones. Crews can deal with small repairs, fires or leaks at sea, but small conditions such as those can go unchecked and endanger the whole ship and cargo.

“The cyber risk is also concerning. The vessel may be safe from physical piracy, but what about hacking?” &

Gregory DL Morris is an independent business journalist based in New York with 25 years’ experience in industry, energy, finance and transportation. He can be reached at [email protected]