The Employment Essentials blog apologizes for being inaccessible the last several days.  We confess to failing to follow appropriate guidelines at our New Year’s Holiday party, with the end result being a several-day long hangover.  But we’re back up and running into 2012, starting with this excellent piece on the always fact-specific ‘going and coming’ rule.  


West Virginia generally does not provide employees with workers’ compensation coverage for injuries incurred pursuant to the “going and coming” rule.  In other words, employees typically are not entitled to workers’ compensation benefits if they are injured in the process of coming from and going to work, i.e., during their commuting time.  As in most states, there are several reasons for this rule of law.

First, going to or from work generally is considered to be the employee’s own responsibility.  Second, the employer’s interests ordinarily are not advanced during these times.  Third, hazards encountered by an employee while commuting are typically faced by all workers, and thus cannot be attributable to a person’s employment.  Workers’ compensation insurance does not insure workers against the common perils of life.  For all of these reasons, the general rule is that injuries sustained by an employee while going to or coming from work are not considered to arise out of or in the course of employment and, therefore, are not covered under workers’ compensation. 

However, the “going and coming” rule does not exclude coverage in all situations where an employee is injured on his or her way to or from work or where an employee leaves his or her place of employment during a work break.  Under West Virginia’s “going and coming” rule, such an injury is not brought within the scope of employment, unless by an express or implied requirement in the contract of employment or where such injury occurs within the zone of the worker’s employment (with that zone being determined by the circumstances of the particular case). 

In Williby v. WVOIC, the West Virginia Supreme Court of Appeals reviewed the “going and coming” rule in regard to a bank employee’s attempt to obtain workers’ compensation benefits for an injury she received while picking up her lunch during a paid work break.  As the employee was crossing the street to return to the bank, she fell in the middle of the road, on uneven pavement, and injured her shoulder.  She sought medical treatment and filed a workers’ compensation claim, which was initially ruled compensable by the Workers’ Compensation Commission.  The Office of Judges affirmed that ruling; however, the Board of Review reversed, thereby rejecting the claim.  The Board concluded that the employee’s injury did not occur in the course of, and as a result of, her employment.  The employee then filed an appeal to the West Virginia Supreme Court. 

In applying the “going and coming” rule, the Supreme Court found that the employee’s fall and injury did not occur in the course of or as a result of her employment and affirmed the Board of Review’s final order.  The Supreme Court recognized that an employee is entitled to compensation for an injury sustained in going to or from work only when (1) such injury occurs within the zone of employment, with that zone determined by the circumstances of the particular case presented; or, (2) the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment between the employer and employee. 

As explained by the Court, if employees are required, as a condition of their employment, to routinely journey from place to place, then injuries incurred by those employees while traveling are compensable.  Also, an off-premises journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenient hazard or urgency of making it in the particular circumstances, is sufficiently substantial to be viewed as an integral part of the service itself.  This is known as the special errand exception.  In the case before it, the Court found that:  the employee was not on her employer’s premises; she was not engaged in any work-related activity; and, she was not required or even directed by her employer to cross the street and pick up her lunch during her break. So, she was found to not be exposed to a work-related risk. 

The analysis and findings by the Supreme Court in this case clearly show that the practical application of the “going and coming” rule in regard to any workplace injuries requires a very detailed analysis of the facts surrounding the injury.  These include the facts regarding an employee’s activities for the whole day and also any contracts of employment and policies and procedures of employment.  These factors will be considered by a court before making a determination whether a workplace injury has occurred.

Alyssa Sloan focuses her practice in the defense of litigating claims involving workplace injuries and illnesses and related employment matters. She has represented employers in more than one thousand (1,000) protests before the Workers' Compensation Office of Judges and has extensive experience in the appellate practice of worker's compensation claims before both the West Virginia Workers' Compensation Board of Review and the West Virginia Supreme Court of Appeals.
» See more articles by Alyssa A. Sloan
» Read the full biography of Alyssa A. Sloan at Steptoe & Johnson

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