Employees injured in vehicle crashes on their way to or from their job usually don’t receive workers’ comp benefits for their injuries. Courts have recognized exceptions – but not in this case where an employee gave a co-worker a ride.
Orlando Gonzalez Jr. worked for Zen Window Cleaning in New Mexico as a window washer.
Each work day, Gonzalez would meet his co-workers at his employer’s equipment storage facility to load the company van with what was needed for that day. Only two employees could ride in the van, so other workers would travel in their own vehicles from the storage facility to the day’s work site.
An employee’s compensable work day began at the storage facility and ended when the employee clocked out at the job site. There were times when an employee was paid for the time it took to return equipment to the storage unit.
On July 26, 2013, Gonzalez drove himself and another employee in his own vehicle from the storage facility to the day’s work site. Usually, Gonzalez wouldn’t drive back to the storage facility at the end of the work day unless he had to help unload equipment. His supervisor told Gonzalez shortly after two p.m. that he could leave for the day. Gonzalez’s co-worker asked for a ride back to the storage unit. While he was driving to the storage facility, Gonzalez’s car was rear-ended. Gonzalez suffered injuries.
A workers’ comp judge concluded Gonzalez wasn’t in the course and scope of his employment because the “worker completed his daily work activities and had left the work site with permission of Employer when he was involved in a motor vehicle accident while commuting home.” The WCJ said Gonzalez’s agreement to drive the other employee to his car was voluntary ride sharing. Gonzalez appealed.
A new exception?
Gonzalez argued before a New Mexico appeals court that his trip fell within the traveling employee exception to the going-and-coming rule because he used his own vehicle to drive to and from job sites and on the day of the crash he agreed to transport a co-worker back to the storage facility at the end of the workday, which was a benefit to his employer.
But the court noted Gonzalez volunteered to give his co-worker a ride – he wasn’t told to by his employer. Also, on the day of the crash, Gonzalez wasn’t required to travel back to the storage facility.
Gonzalez had one other argument: He proposed New Mexico adopt the “own conveyance” rule. In some states, this exception to the going-and-coming rule applies when an employer requires the employee to drive his car to work and have it available during the workday.
The appeals court said, despite citing cases from other states, Gonzalez didn’t provide any analysis to support his argument, therefore it wouldn’t adopt the own conveyance rule.
The court agreed with the WCJ: Gonzalez won’t get workers’ comp benefits for his car crash injuries.
(Gonzalez v. Zen Window Cleaning, Court of Appeals of New Mexico, No. A-1-CA-35009, 7/16/18)