Under FL Statute, “Traveling Employee” is Not in “Travel Status” While Driving Home from Work

Reversing a decision by a state judge of compensation claims (JCC) that had awarded workers’ compensation benefits to a Florida HVAC technician who sustained injuries in a vehicular accident as he drove home after completing his last service call in a vehicle provided to him by his employer, Florida’s First District Court of Appeal stressed that it was not the technician’s status as a “traveling employee” that controlled; a determination was required as to his “travel status” at the time of the injury. An employee is not in travel status when he or she is traveling to or from work. This means that injuries suffered while traveling to and from work, even where the employee regularly works in a travel status, are not compensable [Kelly Air Sys., LLC v. Kohlun, 2022 Fla. App. LEXIS 1812 (1st DCA, Mar. 16, 2022)].

Background

Kohlun was employed as an air conditioning service technician by the employer. His responsibilities included performing service calls for the employer within a four-county area. The employer provided Kohlun with a company vehicle for his use. Per the employer’s employment manual, Kohlun had the exclusive ability to drive his employer-provided car to and from work and to make incidental personal trips on the way to and from work, including stopping for gas or groceries. Kohlun, however, was not required to drive the employer’s vehicle to and from work; he was permitted to do so at his convenience. At the time of Kohlun’s injury, he was traveling from his final service call location and had clocked out of work for the evening by reporting to his supervisor that he had finished his work for the day.

Florida’s Going and Coming Statute

Under § 440.092(2), Fla. Stat., compensation for injuries sustained during travel “going to or coming from work” are excluded from compensability because, according to the plain language of the statute, such injuries do not arise out of and in the course of employment. This is generally the case even if the employer provides the means of transportation to the employee. Nonetheless, the statute includes a compensability condition related to employer provided transportation. Compensation is allowed if the means of transportation is “available for the exclusive personal use by the employee” [§ 440.092(2), Fla. Stat.].

JCC’s Decision

The JCC concluded that Florida’s going and coming statute did not apply so as to bar recovery because, while Kohlun had exclusive personal use of the vehicle for travel to and from work, he did not have unrestricted freedom to use the vehicle outside of travel to and from work. Accordingly, the JCC awarded workers’ compensation benefits. The employer and carrier appealed.

First DCA’s Decision: What is “Exclusive Personal Use?”

The First DCA indicated that while it had discussed the general application of the going and coming statute on a number of occasions, there had been few decisions regarding the definition or interpretation of “exclusive personal use.” The court said exclusive personal use should be interpreted in the context of the going-and-coming statutory provision where it is found. This means that the evaluation is whether the employee had exclusive personal use of the transportation while going to and coming from work.

The court pointed to its decision in Securex, Inc. v. Couto, 627 So. 2d 595 (Fla. 1st DCA 1993), in which it determined that an employer-provided bus or carpool that transports employees is not available for any one of the employee’s exclusive personal use. The court said exclusive personal use meant that an injury was not compensable where the employee’s transportation was available exclusively to that employee and that the employee could use the transportation as if it were personal property for the purpose of going to and coming from work. The court added:

Here the JCC found that Kohlun was free to use the employer provided vehicle at his convenience for travel to and from work. He was similarly free to stop when it suited him and run personal errands in a way one would expect of exclusive personal use. He did not have to share the vehicle with others or pick up fellow employees. And the vehicle’s use was not conditioned on the completion of additional tasks for the benefit of the employer. The question is not whether an employee can use the vehicle to take his family on vacation. The question is whether it is available for his exclusive personal use for travel to and from work—here it was [Opinion p. 5].

Florida’s “Traveling Employees” Provision

The court then turned to the state’s “traveling employees” provision [see § 440.092(4)]:

An employee who is required to travel in connection with his or her employment who suffers an injury while in travel status shall be eligible for benefits under this chapter only if the injury arises out of and in the course of employment while he or she is actively engaged in the duties of employment. This subsection applies to travel necessarily incident to performance of the employee’s job responsibility but does not include travel to and from work as provided in subsection (2).

[Author’s note: The Florida traveling employees provision is more restrictive than that in most other states; see Larson’s Workers’ Compensation Law, § 14.01, et seq., 15.01, et seq.]

Traveling Employee vs. Travel “Status”

The First DCA noted that the JCC concluded Kohlun’s injuries were compensable under § 440.092(4), because he was a “traveling employee.” Yet the important question, indicated the court, was not whether the employee was a “traveling employee,” but rather what was the employee’s “travel status” at the time of the injury. The court said it was clear that an employee is not in travel status when he or she is traveling to or from work. This means that injuries suffered while traveling to and from work, even where the employee regularly works in a travel status, are not compensable.

The court found that the JCC had erred in determining that after Kohlun became a “traveling employee,” his status, as a matter of law, continued into his travel to and from work. The First DCA concluded, however, that Kohlun was not in a travel status at the time of the injury and that the going-and-coming provision did apply. Kohlun had clocked out for the day and was driving from work at the time of the injury. He was traveling in an employer provided vehicle available for his exclusive personal use for travel to and from work. He was not otherwise being compensated for his travel and could not be said to have still been “at work.” For these reasons, Kohlun’s injury was not compensable. The JCC’s decision was accordingly reversed and remanded.