Texas Electrician Was Not Traveling Employee In Spite of Weekly Stipend

Death Benefits Claim Barred by Going and Coming Rule

In spite of (1) an employer’s designation of an employee as a “field electrician”; (2) the employer’s payment of a $75 weekly stipend to the employee because he lived some distance from his work assignment; and (3) the fact that, at the time of the employee’s fatal auto accident, he was carrying time records to be delivered to the employer’s main office before reporting to his assigned workplace, the employee’s fatal injuries did not arise out of and in the course of his employment, held a Texas appellate court [see Fuentes v. Texas Mut. Ins. Co., 2017 Tex. App. LEXIS 10243 (Nov. 1, 2017); see also Larson’s Workers’ Compensation Law, § 14.02]. The death benefit claim filed by the deceased employee’s common law spouse was barred by the going and coming rule.

Background

The employer hired Estrada to work at its job site located at Goodfellow Air Force Base in San Angelo, Texas. In addition to an hourly wage, the employer paid Estrada a $75 per week stipend. It did not, however, require or maintain records on how its employees spent their stipends.

Estrada worked as a foreman, performing his supervisory work only at the Goodfellow Air Force Base. One of his assigned duties was the submission of crew time sheets to the employer. The employer allowed Estrada to submit the times heets in one of three ways: (1) using of a fax machine located at Goodfellow, (2) giving them to Dial Ortiz, another employee, who made daily trips between the home office and Goodfellow, or (3) hand delivering the sheets to an inbox at the employer’s office. The employer ran its payroll every Thursday morning.

Estrada’s usual route to his assignment took him directly past the employer’s office. On the morning of the fatal accident—a Thursday—Estrada left his house and and an oncoming vehicle struck Estrada’s vehicle head-on, resulting in Estrada’s death. The accident occurred between Estrada’s residence and about one mile south of the employer’s office.

Workers’ Comp Decision Adverse to Employee’s Common Law Wife

The hearing officer determined that Estrada’s fatal accident did not arise out of and in the course of the employment and the DWC appeals panel affirmed. At the trial court level, the court granted the employer/carrier’s motion for summary judgment.

Course and Scope of Employment Has Two Elements

The appellate court stressed that the definition of “course and scope of employment” had two components: the injury had to (1) relate to or originate in, and (2) occur in the furtherance of, the employer’s business. The court indicated, for example, that an employee’s travel to and from work made employment possible and, therefore, furthers the employer’s business, satisfying the second prong of the requirement. Yet such travel could not be said to originate in the employer’s business—the requirement of the first component of the rule—since the risks to which the employee was exposed while traveling to and from work were shared by society as a whole.

Here it was clear that Estrada’s travel to the employer’s office on his way to the Goodfellow job site furthered the employer’s business. In order to satisfy the “origination” component, however, Estrada’s common law wife was required to show that the travel was pursuant to express or implied conditions of his employment contract.

Factors to be Considered

The appellate court noted that the Texas Supreme Court had noted several factors that reflect on whether an employee’s travel originates in the employer’s business or work, including:

  1. Whether the employment contract expressly or impliedly required the travel involved;
  2. Whether the employer furnished the transportation;
  3. Whether the employee was traveling on a special mission for the employer; and
  4. Whether the travel was at the direction of the employer, such as requiring the employee to bring tools or other employees to work or another location.

The court noted that Estrada’s workday began when he reached the Goodfellow site. He was paid by the hour, beginning upon his arrival there. He was not required to stop off at the employer’s office and, indeed, rarely did so. While Estrada received the stipend, he was not required to account for it and the employer kept no records of how the employees spent the “extra” funds. There was some evidence that the payment was an inducement for persons such as Estrada to sign on with the employer, as it had difficulty finding a sufficient number of skilled workers.

The court stressed that Estrada did not drive a company vehicle and, most importantly, noted that Estrada had three methods of turning in time sheets; dropping them by the office was for his benefit, not the employers.

No Special Mission

The court added that Estrada had not been on a special mission. While submitting the time sheets was part of his job, the employer did not require that the paperwork be submitted directly to the employer’s office.

No Traveling Employee

While Estrada’s work did require that he travel to the Goodfellow Base, he worked only at that location. His risk of injury or death during travel was the same as society as a whole. His travel to Goodfellow amounted to a normal commute.

Based on the foreign arguments, the appellate court affirmed the denial of benefits.

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