Every month, a reader asks one of our sponsor legal experts about a work-related issue. These building trades law professionals respond in an Organized Labor exclusive. This month’s expert is Elinor Leary of The Veen Firm.
The other morning, my husband was hit by a delivery van in the parking garage of his building as he was walking from the car to the elevator. He's badly hurt, and he is still in the hospital. Can he get Workers' Compensation benefits even though he hadn't punched in to start his shift?
An employee doesn't have to be clocked in to be covered by Workers' Compensation. There are many instances when coverage is available even though the worker is not on the clock.
If your husband had been injured during his commute to work that morning, he would probably not receive Workers' Compensation benefits. This is called the "going and coming rule." Under most circumstances, an injury that occurs during a commute does not occur in the ordinary course of employment, because the employee is not yet at work.
On the other hand, an injury that occurs during a work commute after entering the employer's premises will likely be covered under Workers' Compensation. This is known as the "premises line rule." In your husband's case, he had reached the parking garage of his office and was on his way to the elevator to start his workday. On these facts, he was acting in the ordinary course of employment and is likely eligible to receive comp benefits.
There are exceptions and nuances to both these rules. Your husband may also have a remedy in civil court if the driver of the delivery van was negligent while driving. Your husband should contact an attorney who has experience dealing with cases that involve workplace injuries.
-Elinor Leary, Attorney; The Veen Firm, PC“Interaction via “Ask the Expert” does not establish an attorney-client relationship. Any advice given is neither legal advice nor does it serve as a replacement for hiring an attorney. In addition, any case results mentioned or discussed are not guarantees of similar results.”
This Month's Expert; Elinor Leary
Elinor Leary is the team leader of the Leary Trial Team, which handles complex cases that involve life-altering injuries or death. The Leary Trial Team has expertise with cases that involve construction and worksite injuries, defective products, dangerous property conditions, negligent security, car and truck collisions, and incidents that involve pedestrians and bicyclists. Ms. Leary has tried cases to verdict as well as reached large settlements in numerous other cases, including cases listed in The Recorder’s “Top Settlements” publications. Elinor is rated "AV Preeminent" by Martindale-Hubbell, the highest rating possible for both legal and ethical standards. She has been selected by peers to the Northern California Super Lawyers List, top 5% of attorneys, and to the Top Northern California Female Lawyers. Elinor is bilingual in Spanish.