You Be the Judge

Does Coming and Going Rule Sink Firefighter Claim?

Employer challenges claim for injury sustained during travel.
By: | March 31, 2014

A firefighter was working in a light-duty position due to problems related to a prior work-related back injury. He was assigned to the fire department headquarters. While he was on light duty, the firefighter stopped by his regular fire station each month to pick up his work mail. His supervisors knew he was doing this.

The department encouraged firefighters, including those on light duty, to engage in two hours of physical training per shift. Firefighters were paid during those two hours, and they could train at any location they chose.

The firefighter began his shift at a high school where he trained, and then traveled to his regular station to gather his office mail. While he was traveling, he was involved in an accident and was injured. The firefighter filed a claim for workers’ compensation.

The county contested the claim, arguing that his injury did not arise out of or in the course of his employment, although it conceded that any injury sustained during physical training at the high school would have been covered by workers’ compensation.

The Workers’ Compensation Commission agreed with the county and denied the claim. The trial court also denied the claim because the injury occurred while he was “coming and going” to work.

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The county conceded that the firefighter had been at the high school for a work-related purpose but argued that the fire station was not a work-related site. The court disagreed, pointing out that he was picking up work-related mail and his supervisors were aware. The court found that the county “acquiesced” the firefighter’s act of gathering mail at the fire station.

The positional risk test applies where a worker is injured while engaging in activities incidental to his employment. The court concluded that the firefighter’s travel was incidental to his employment and could not be excluded from coverage by application of the going and coming rule. The court found that “but for” his travel between work-related sites, he would not have been injured.

How the court ruled: C. The Maryland Court of Appeals held that the firefighter’s injury arose out of and in the course of his employment and was compensable. Roberts v. Montgomery County, No. 39, September Term, 2013 (Md. 01/28/14).

A is incorrect. The court found that the coming and going rule did not apply, but the positional risk test was applicable. The firefighter’s travel incidental to his employment could not be excluded from coverage by application of the going and coming rule.

B is incorrect. The court rejected the county’s assertion that the fire station was not a work-related site to which the firefighter was traveling. He was planning to engage in a work-related act at the fire station to which the county acquiesced.

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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