Matt C. Fendon 0000-00-00 00:00:00
Personal injury lawyers “lend me your ears.” I am certain that you are probably familiar with the “going and coming rule.” However, do you realize that there is a factual situation that occurs regularly where you could potentially commit legal malpractice by ignoring this rule? I know of multiple occurrences when a personal injury lawyer settled a case that a workers’ compensation insurance carrier technically had statutory lien rights against. This essentially forfeited any further workers’ compensation benefits owed to the injured worker. Let’s start with the rules of law. Workers’ compensation carriers have lien rights against a third-party tortfeasor when he or she injures the insured employee. The most common scenario and the easiest to explain is the one I use when I speak at seminars. Envision a scenario where the employee who works for Burger King is injured by the Coca-Cola delivery man delivering a shipment to that Burger King. In this common scenario, the injured worker receives his benefits from Burger King’s workers’ compensation insurance carrier and the carrier recoups any monies paid out to their Burger King employee for medical and compensation benefits or any settlement from Coca-Cola. However, the factual scenario we will discuss later in this article is a bit more complex. The “going and coming rule” essentially says that employees who are injured on their way to or from work are not entitled to workers’ compensation benefits. As with many rules of law, there are, of course, exceptions. The exception that I want to highlight in this article is the “special errand” exception. This exception says that employees who are injured traveling off the employer’s premises, but are performing an errand for the employer, are still covered by workers’ compensation. Why should you as a personal injury lawyer care about this exception? The Joplin case is the answer. Joplin v. Industrial Commission (175 Ariz. 524, 858 P.2d 669) is a 1993 case which essentially states that an injured worker traveling to or from a medical appointment for his industrial injury who is injured in a motor vehicle accident, for example, has a compensable workers’ compensation claim. In Joplin, the injured worker was returning home from a physical therapy appointment when he suffered injuries in an auto accident. The court reasoned that an employer has a “statutory duty to furnish medical care” and the employee has a similar duty to “submit to reasonable medical treatments.” The court further said that travel for this treatment is “necessary.” In addition, that travel is “analogous” to the “special errand exception” of the “going and coming rule.” The court, however, did not end up finding the claim compensable because of the injured worker’s “substantial deviation” from his route to his house (the injured worker ended up running several errands after his physical therapy appointment, including taking a long lunch). Here is another factual scenario you may have already encountered or may come across in the future: A client hires you to sue a driver who rear-ended your client on his way to a doctor’s appointment for treatment for conditions related to a prior industrial injury claim. Even though the injuries sustained in a motor vehicle accident are entirely different from the injuries he or she incurred while working, that motor vehicle accident could be considered a workers’ compensation case under Joplin. I have seen personal injury lawyers neglect to take this case into consideration who have settled their personal injury claims without first obtaining written approval from the workers’ compensation carrier as required under the statute. The results of this could be catastrophic. Failing to obtain the written approval of the workers’ compensation carrier of a settlement of the personal injury case could result in the injured worker’s compensation benefits being terminated, and preclude him or her from reopening their case in the future. In summary, do not lose sight of the “going and coming rule” and our friend the “special errand” exception. You do not want to have to answer to your client and/or your malpractice insurance carrier for inadvertently terminating an injured workers’ compensation benefits. To avoid these and similar pitfalls, I strongly recommend befriending a workers’ compensation attorney to assist you with situations like this. You certainly do not want your client to be without medical and compensation benefits for his industrial injury based on an oversight of Joplin.
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