eNotes: Workers’ Compensation – August 2023 – Virginia

SIGNIFICANT CASE SUMMARIES

Virginia Case Summary

Howard v. WMATA
Virginia Workers’ Compensation Commission
VA02000038634

Decided July 19, 2023

When a Metro employee was injured while riding a Metro bus from a depot to the first stop of the day, he was in the course of his employment and his accident was compensable.

Background

Claimant worked as a bus operator for the DC Metro, which permitted him free use of the Metro buses. At the start of his daily shift, he reported to the Four Mile Run depot, at which point he received his route for the day. On the date of his accident, Claimant was asked to appear at the King Street station to begin his bus route. Claimant boarded a Metro bus to get to the King Street station. Although Metro employees were not required to use any specific method of travel to get from the depot to the beginning of their route, Claimant used the Metro bus for this travel because it was free to do so. On this day, the Metro bus was involved in an accident and Claimant was injured.

WMATA denied his claim as outside the course of employment, arguing that because Claimant was not being paid, not engaged in any service to the Employer, and not required or prohibited from using any method of transportation, the “going and coming rule” applied, and his injuries did not occur in the course of employment. The Deputy Commissioner disagreed, finding that the job required him to use public streets to travel from the depot to the station, and therefore this was an actual risk of employment. WMATA appealed.

Holding

The Full Commission affirmed. It applied the street-risk rule; because Claimant was required to report to the depot and was then required to make it to the station, his employment required him to brave the risk of the street in getting there. This circumvents the “going and coming rule”, and the claim was compensable.

Takeaway

Interestingly, the Commission seemed to bypass the analysis of whether it mattered that the transportation used was sponsored/required/prohibited by WMATA. Instead, it found that the course of employment began once Claimant arrived at the first place required by the employer.

Questions about this case can be directed to Mike Bliley, Esq. at (571) 464-0435 or mbliley@tthlaw.com.